'Prison Crime and the Economics of Incarceration' by Ben Gifford in (2019) 71(1) Stanford Law Review 71-135 comments
As the United States's prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged on the benefits and costs of incarceration. The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society. The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms. Once these benefits and costs are quantified, empirical scholars can assess whether it "pays," from an economic perspective, to incarcerate more or fewer criminals than we currently do. Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration. In each of these areas, policymakers rely heavily on empirical scholars' work, whether by adopting their general methods or incorporating their specific results. While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: They fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented "in society." Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff. This exclusion is significant, as prison crime is rampant, both in relative and absolute terms. To address this oversight, this Article makes several contributions. First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework. Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus. Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses. As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.
Gifford argues
The past few decades have seen an explosion in the number of Americans behind bars. In 1980, there were 503,600 inmates in our nation's prisons and jails. By 2015, that number had jumped to 2,172,800. When individuals on parole and probation are taken into account, the adult correctional population in the United States is nearly 7,000,000, or 1 in 37. What's more, the United States is an outlier. Although other Western democracies have seen increases in their prison populations over the same period, the United States currently incarcerates "more than any other country on Earth," in both overall and per capita terms. Indeed, while the United States has only 5% of the world's population, it claims nearly one-quarter of the world's prisoners.
Given the sheer size of our recent carceral surge, it is natural to ask whether we are now locking too many people up, and how we would know if we were. A plethora of empirical research has tried to answer these questions using traditional principles of cost-benefit analysis. According to this framework, the benefits of incarceration are measured in terms of the value of crime that is avoided by putting criminals behind bars. The costs are measured by looking to the expenses associated with constructing and operating prisons and jails, the productivity that is lost to society when individuals are incarcerated, and the collateral effects that incarceration has on inmates' families and communities. Once the benefits and costs are tallied, scholars are able to determine whether it "pays" to incarcerate more or fewer people than we currently do.
Drawing on this academic literature, policymakers at all levels of government are also using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating general proposals to increase or decrease incarceration rates, policymakers are assessing myriad specific reforms that implicate the economics of incarceration. These include changes to substantive and sentencing laws, investments in alternative crimeprevention strategies, and intervention programs aimed at reducing recidivism among those already incarcerated. In each of these areas, policymakers are relying heavily on the work done by empirical scholars, whether by adopting these scholars' general methods or by incorporating their specific findings.
Of course, by focusing narrowly on quantifiable costs and benefits, researchers and policymakers risk overlooking important (even crucial) considerations, such as the unfairness inherent in imposing certain sentences, or the radically disproportionate impact that incarceration has on minority groups. Any prescriptions drawn from these economic analyses must therefore be read with appropriate qualifications. Cost-benefit analysis nevertheless provides a powerful framework through which to evaluate the criminal justice system. After all, if everything else is held equal, we should try to make policy changes whose benefits exceed their costs.
While analyses involving the economics of incarceration yield important insights, they suffer from a near-universal flaw: They do not account for crime committed inside prisons and jails. Instead, when scholars and policymakers calculate the benefits of incarceration, they look only to the gross amount of crime avoided in society. Similarly, when they calculate the costs of incarceration, they almost always fail to consider the costs of victimization behind bars. For economic analyses of incarceration, and the laws and programs that rely on those analyses, prison crime simply doesn't count.
This exclusion is significant. Although available data is scarce, the information we have suggests that crime, especially violent crime, is rampant in prisons and jails. As an illustration, the most recent National Inmate Survey, conducted by the Bureau of Justice Statistics (BJS), found that between 3% and 4% of inmates "reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission to the facility, if less than 12 months." Compare this with the national self-reported rate of rape and sexual assault over the same period, according to the BJS's National Crime Victimization Survey (NCVS): less than 0.15%. While both of these figures may reflect significant undercounting, they imply that the amount of sexual victimization that occurs inside prisons and jails, in absolute terms, is within an order of magnitude of the amount that occurs outside. And sex crimes are only one type of victimization that occurs behind bars. By failing to account for such a substantial amount of crime, scholars and policymakers paint an unrealistically favorable picture of the economics of incarceration. They correspondingly understate the value of programs that keep people out of prisons and jails.
In order to address this oversight and more accurately assess the costs and benefits of incarceration, this Article makes several contributions. First, Part I surveys the literature on the economics of incarceration, with particular attention to studies that measure the amount of crime that incarceration prevents, the value of that prevented crime to society, and the costs of incarceration. Part II then explores a range of different policy applications involving the economic framework introduced in Part I. As Part II illustrates, policymakers at all levels of government are applying a cost-benefit framework to evaluate not only general proposals to increase or decrease the prison population, but also a host of specific laws and programs that implicate the economics of incarceration.
Next, Part III highlights the near-universal manner in which prison crime is excluded from economic analyses, and it examines the possible justifications for this exclusion. Although these justifications are rarely articulated, they appear to rely either on the view that prison crime is part of the punishment that criminals deserve, or on the related view that prison crime is preferable to crime in the outside world. Part III argues that these views are misguided, and it draws on the concept of economic "standing" to show that we are not justified in excluding prison crime from our cost-benefit analyses.
Finally, Part IV looks to the scarce data available on the prevalence of prison crime, and it estimates the impact that inclusion of this data has on economic analyses of incarceration. Even when we confine our inquiry to the costs associated with violent victimization, Part IV finds that accounting for prison crime has a significant impact on our cost-benefit analyses: Regardless of the assumptions we use, the costs of incarceration increase substantially.
