This is the first of several posts in which I’ll be serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).
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In this Article, I invite the reader to indulge in a thought experiment. What would the world look like if, instead of assigning prisoners to particular prisons bureaucratically, we gave them vouchers, good for one incarceration, that they were required to redeem at a participating prison?
School vouchers have been debated to death ever since they were proposed by Milton Friedman in 1955 and championed by progressives in the 1960s. Vouchers have also been discussed and used for other government services, like housing and health care.
Vouchers are also no stranger to criminal justice: We see them used for halfway houses, mandatory anti-alcohol programs, and criminal defense lawyers for the indigent. A voucher system was implemented in a few states in the 1970s to allow inmates to buy training and education as part of “Mutual Agreement Programs” (also called “contract parole” programs) that helped inmates work toward parole. This last idea was taken up in the Model Sentencing and Corrections Act in 1978, which suggested that prisoners get vouchers to purchase “specified treatment programs and services directly from either public or private agencies,” though this feature of the Model Act apparently hasn’t been adopted anywhere.
But, as far as I can tell, no one has ever discussed vouchers as a serious possibility for prisons.
This is a shame, because some of the same factors that led early education reformers to suggest school vouchers apply with equal, if not greater, force in the prison context. Both prisons and schools face a similar confluence of three factors:
- Both face widespread and serious problems.
- The problems in both areas have proven hard to solve through the usual political, administrative, or judicial means.
- And allocation of students to schools, and of inmates to prisons, is predominantly done bureaucratically, with limited possibilities for choice.
The prima facie case for considering a market solution, in which the subject population would become consumers and thus drive reform by voting with its feet—essentially, getting rid of (3) to bypass (2) and thereby solve (1)—thus seems strong.
Let me focus on (1) for a bit. Modern American prisons—with their high violence rates, bad medical care, overuse of highly punitive measures like administrative segregation, and the like—are widely believed to be low-quality. (Compare this to the views of early school voucher proponents on the left, who wrote that “[t]he public schools have not been able to teach most black children to read and write or to add and subtract competently” and that the public school system “destroys rather than develops human potential.”)
We should care about prison quality even if we don’t care about prisoners: Bad prison conditions often indirectly hurt the rest of us too. Brutal conditions, as well as excessive use of high-security segregation, make prisoners less useful members of society and more likely to reoffend. The low level of educational, vocational, or rehabilitative programs also contributes to recidivism. And communicable diseases can spill over into the outside world when infected inmates are released. “Every year, more than 1.5 million people are released from jail and prison carrying a life-threatening contagious disease.” The risk in multi-drug resistant tuberculosis in New York in the 1980s and early 1990s may have been linked to poor medical treatment in prisons and jails.
There are thus clear opportunities for gains from prison vouchers—not just to prisoners but also to society at large—as competing prisons seek to attract prisoners by offering better security, medical care, and vocational programs.
But, now focusing on (2), why can’t we “just” fix prisons by other means—by reform legislation, by administrative oversight, or by litigation?
Legislative prison reform is a tough sell. Unlike with schools, where at least all politicians claim to like kids, criminals are widely vilified. Nor are elected officials eager to fund prisons. Some reformers recognize that prison administrators or legislators have little interest in spending money on prisoners or otherwise improving prisoners’ lives, but nonetheless “urge” and “encourage” these same officials to spend the money or implement the reforms. Of course there’s nothing wrong with urging, and some reforms have been implemented even in the face of political pressure to the contrary. But it’s unsurprising that mere urges haven’t gone very far.
Administrative solutions are likewise difficult: Prison officials remain resistant to “scrutiny by ‘outsiders.’” Independent inspection and monitoring, as well as internal oversight mechanisms, like effective grievance systems, are underused.
Judicial solutions are also unpromising. Courts often defer to the judgment of prison administrators, and prisons are exempt from Administrative Procedure Acts in many states. Prisoner litigation, whether on individual claims or in more ambitious prison reform cases, is restricted, for instance by the Prison Litigation Reform Act, and in any case prisoners’ rights are quite limited.
Some have suggested contracting out prison management to the private sector (but holding the method of allocating prisoners constant) as a way of improving prison quality. This is a controversial proposition—others categorically deny that contracting out improves prison quality, and even some of those who are more sympathetic to contracting out grant that the evidence on quality is mixed.
Here, too, the parallels with the public school debate are clear. Whether the blame lies with teachers’ unions or with legislatures unwilling to spend money on schools in politically powerless areas, schools have been hard to reform politically. Litigation hasn’t worked well, and any constitutional rights to a good education are generally weak. Privatization of entire school systems within the context of mandatory government provision has been tried sporadically, and the results haven’t been terribly impressive so far.
The market approach that vouchers represent has an obvious appeal in this context. By empowering the prisoners themselves to reward and punish prisons, it would create powerful incentives for prisons to become better—by the prisoners’ own standards. No longer would one have to “urge” prison administrators or legislatures to reform conditions in the interest of prisoners, or try to convince them that prisoner welfare is aligned with the social interest—a strategy that has not worked terribly well so far. Instead, prison administrators would be moved, as if by an invisible hand, to make their prisons better places.
Moreover, vouchers would also increase prisons’ constitutional flexibility.
First, prisons would be freer to experiment with religiously inspired rehabilitation: faith-based prisons, whose constitutionality under the current regime is dubious, would become fully constitutional. Under vouchers, the prison system would come within Zelman v. Simmons-Harris because prisons would be participating on a neutral basis, independent of religion. As is already the case with halfway houses, residential programs for delinquent children, or alcoholism or drug addiction programs, participating providers could be public or private, religious or secular. The inmate’s ability to choose from a variety of providers, not all of which are religious, would be what makes these programs “voucher-like.”
And vouchers would do more than make the current batch of faith-based prison programs constitutional. When faith-based prisons operate today, they necessarily try to be ecumenical to some extent. But suppose a religious organization isn’t satisfied with such a program, just as it might not be satisfied with ecumenical prayer and other watered-down expressions of religion in public schools. With vouchers, it could become far more ambitious. A religious group could run its own prison and advertise inmate rehabilitation through intensive, and intensely sectarian, exposure to religion.
Vouchers could thus be the best, or perhaps even the only, way to save faith-based prisons.
Second, prisons would be freer to offer inmates packages of features that currently would be considered unconstitutional. Prisoners have dramatically reduced rights, but they still retain some. In general, people—prisoners or not—may benefit from being able to waive their rights in exchange for other benefits; for instance, inmates may agree to waive some part of their due process rights in exchange for better health care. A prison’s ability to offer such a package is limited by the unconstitutional conditions doctrine. I argue that, in a prison system that is more competitive from the inmate’s point of view, the unconstitutional conditions doctrine would (and should) be more permissive, because the inmates’ ability to choose would mitigate the possibility that prisons would be illegitimately taking advantage of inmates.
With all this going for it, what could go wrong?
One possibility is “market failure”—that inmates’ individual decisions won’t succeed in improving overall prison quality. This could be because inmates can’t make themselves better off through their decisions (perhaps they are poorly informed about prison quality), or because some inmates’ decisions will make other inmates worse off (perhaps the better informed inmates will get the best prisons and leave the bad prisons to the uninformed).
Another possibility, one that I think is more serious, is what I call “market success”—that inmates will succeed in improving prison quality by their own standards, and that this is precisely the problem. Prisoners’ preferences aren’t always good; we are, after all, talking about (presumptive) criminals. At worst, satisfying prisoner preferences may directly make the world a worse place (perhaps members of a gang choose to be together and are thus better able to run criminal enterprises on the outside). At best, it may merely make prison a less undesirable place and thereby undermine the deterrent value of prison (perhaps the prison becomes a country club).
I take these counterarguments seriously, and so I make no strong claims about the bottom-line merits of prison vouchers. If the potential downsides (that prisoners, through their voucher spending, drive prisons to adopt undesirable features in ways that can’t be adequately controlled by the political process) are outweighed by the benefits (improvements in prisoner security, health care, and education), vouchers could potentially dramatically improve penal policy. But this paper is meant to spur further research and debate on the question, not to come down on one side or another.
More details next time!
4C says:
With all due respect – the idea of giving convicted inmates the priviledge of choosing where they would like to do their time strikes me as ludicrous.
The very reason they are going to prison is because they have demonstrated a severe lack of ability to make good decisions, to a criminal degree.
To let them decide ‘I want to do my time here or there’, which they would base on such criteria as ‘best availabiltiy of drugs’, ‘most lax environment’, ‘highest percentage of inmates from my gang’, etc, etc, is a very poor idea to say the least.
May 31, 2011, 12:42 pm4C says:
“By empowering the prisoners themselves to reward and punish prisons, it would create powerful incentives for prisons to become better—by the prisoners’ own standards. ”
Incredible. Last time I checked, the idea of prison was punishment ( although some would say ‘rehabilitation’ ), not ‘to make it the most pleasant experience possible for the inmates’. It is supposed to be ‘a place they do not want to come back to’, and that is supposed to influence their behavior when released. Not ‘a home away from home, with great food and nice comfy pillows and recreational facilities better than home’.
“Second, prisons would be freer to offer inmates packages of features that currently would be considered unconstitutional.”
You seem to have confused prison with a Carnival Cruise ship.
May 31, 2011, 12:50 pmAdam says:
Smug response: It doesn’t work for schools, so why can’t it not work for prisons?
Less smug response: I’m not sure that I would be confident that the courts will find it constitutional for prisoners to trade, to use your example, due process rights for better health care. There is more than a little bit that is inherently coercive about prisons, and the notion that a prisoner might need to choose between his health and his core rights is more than a little troubling.
But my main reaction is the same as I have in the schools context: given constrained resources, why do we think competition can improve things overall (rather than for a lucky few)? And unlike schools, I’m not sure there is a pool of alternative prison suppliers that are waiting to pluck the most appealing voucher holders.
May 31, 2011, 12:52 pmAdam says:
I agree with your overall point – the one could see competition to make prisons “worse” by objective standards – but prosecution recommendations to the Bureau of Prisons are commonly included in plea agreements, especially in white collar cases.
May 31, 2011, 12:54 pmAdam says:
“Better” does not necessarily mean cushier. Availability of effective drug treatment or job training, for example, probably would do a lot more to make sure inmates don’t end up coming back than unpleasantness.
May 31, 2011, 12:57 pmNimaj Neb says:
One potential benefit of the system was mentioned by 4C, in reference to gang membership percentages. Let’s say there are three gangs in the prison system. Currently, mixing the gang members results in prison gang violence; occasionally, but not infrequently, this results in death. However, over time, a system of vouchers could practically eliminate the prison violence due to rival gangs. If I was a member of Gang A, and 96% of a certain prison was Gang B, the odds of me choosing to go to that prison would be remarkably low. Once a gang became a majority in a certain prison, the other gangs would pull out because of the rational self-interest of the minority gang’s members.
May 31, 2011, 1:08 pmtamerlane says:
I think the basic problem here is a conceptual error: Convicts are not consumers of correctional resources in the sense economists use that term, governments are the real consumers. Of course governments are now, for the most part, also the providers of the correctional resources they consume.
One experiment that has been suggested — I think originally by Ed Zedlewski at NIJ — and used at least a little bit was to sell excess federal prison capacity to states and localities. There are at least three big advantages to expanding on this policy: (1) For a variety of reasons, federal facilities tend to be both cheaper and better maintained than state and local facilities. (2) Having a large excess federal incarceration capacity available would allow state and local governments considerable flexibility in designing their correctional capacity to meet immediate demands. (3) By relieving state and local governments of pressures from correctional employee unions, budget hawks, and other such influences, these governments could plan and implement more rational policies than are current today.
May 31, 2011, 1:09 pmAnon321 says:
Very interesting idea. I’m slightly skeptical, though, that prisons will choose to compete on the basis of quality. Based on my experience observing sentencings, defendants almost always ask the judge to recommend to the Bureau of Prisons that they be housed at the facility closest to their homes, so that their families and friends can visit regularly. (This makes some sense — unless the differences between prisons are truly dramatic, I suspect that few of us would give up the possibility of regular visits from friends and family for the prospect of slightly softer bunks and better food.)
As a result, I’d be curious to know how many areas of the country are served by multiple prisons, and how difficult it is to open new ones in a given area. That is, if prisoners will choose primarily on the basis of location, and then secondarily on the basis of quality, there might be fairly few places in the country where the choice is ever based on quality.
In that same vein, I’d tend to think that the number of prisons would have to expand dramatically (or the number of prisoners would have to shrink dramatically) for inter-prison competition to work. That is, if all of the prisons know that they’re going to get a full quota of prisoners one way or the other (whether they’re the prisoners’ first choice or their last choice), then their incentive to compete would be dampened to say the least. Does your proposal assume that there will be prisons that don’t get chosen by the prisoners and therefore lie dormant and eventually go under? If so, is that borne out by data, or an assumption for the sake of the thought experiment?
May 31, 2011, 1:20 pmptt says:
Let’s stretch the thought experiment a bit further. Considering that the average incarceration in California costs quite a bit more than tuition in the State University system, perhaps we should allow the convicts to use their vouchers to attend college. With ankle monitors, of course.
I realize that for drug offenders, this may result in a very high (ahem) rate of recidivism.
May 31, 2011, 1:29 pmPersonFromPorlock says:
That ‘ahem’ is going right on your permanent record.
May 31, 2011, 1:38 pmcasual reader says:
I can’t say I know a whole ton about prisons. But, I have dealt with my fair share of prisoner litigation & the like.
As a practical matter, wouldn’t prisoners pretty much just separate by race? Seems as if that’s the way things are done, given the prevalence of “the guards put me in a cell with dudes from another race and I got raped/beat up/hassled” 8th Amendment complaints. Especially given the informational problems…seems that the prevalent race of the potential prison would be as good or better an indicator of how you’ll be treated than whatever other information is out there (especially if that information is disseminated by the prison system…from my experience, prisoner’s affirmatively distrust prison officials and would probably just disregard that information)
Of course, that might be a good thing, since so much violence is race-based. As a whole, it seems a stretch to postulate the good OR bad consequences of such a decision. But, then again, that’s the problem with freedom: you’re never sure what people are going to do with it!
May 31, 2011, 1:40 pm4C says:
Adam – ““Better” does not necessarily mean cushier. Availability of effective drug treatment or job training, for example, probably would do a lot more to make sure inmates don’t end up coming back than unpleasantness. ”
YEs, but which do you think will guide the inmate’s choice, if it is their choice ? The one where they have to work to get their GED and kick drugs, or the one where they know their gang runs the place and drugs are freely available ?
Sasha’s whole concept would change the calculus of prison administration from ‘cost effective’, ‘effective rehabilitation’, ‘best security’, etc, to ‘what perks can we offer inmates to choose us ? Let’s hire in a top chef, let’s build a swimming pool, etc, so we remain fully booked’, like a hotel chain.
Nimaj Neb – giving them the inamtes to ability to choose to ‘be with their homeys’ only validates their gang membership and activities, and encourages membership.
ptt – certainly the failed ‘war on drugs’ has worked as well as Prohibition did, and the incarceration of hundreds of thousands of people for the ‘crime’ of possessing a certain plant for private peaceful otherwise non-criminal enjoyment’ is at the core of the incarceration rates and over-crowding.
May 31, 2011, 1:47 pmAdam says:
Perhaps Sasha’s school analogy is more apt than I initially thought. Certainly some subset of prisoners will want treatment and a GED, and Sasha’s plan might allow them to segregate themselves into the best facility for that while leaving behind those who aren’t interested.
Oddly enough, I’m much more comfortable with that result for prisons than for schools.
May 31, 2011, 1:52 pmba2 says:
Before even thinking about publishing an article that could potentially be silly and embarrassing I would talk to placement specialists at as many state department of corrections as possible. The numbers are easily available on the internet and my experience has been they’re more than willing to talk to you. Different facilities have different levels of security and available programs. While no government would ever allow a voucher program to override the decisions of the departments, you could possibly find some interesting ideas based on the voucher idea.
May 31, 2011, 2:08 pmSmooth, Like a Rhapsody says:
Why not give the voucher to the victims?
May 31, 2011, 2:30 pmMartinned says:
COULD SOMEONE PLEASE THINK OF THE
May 31, 2011, 2:41 pmCHILDRENVICTIMS!!!Byomtov says:
Nimaj aneb,
Currently, mixing the gang members results in prison gang violence; occasionally, but not infrequently, this results in death. However, over time, a system of vouchers could practically eliminate the prison violence due to rival gangs.
Based on my deep ignorance of prison gangs, this seems wrong. Don’t the gangs form to provide protection and (illicit) privileges for their members, and so on? If so, then I’d expect any prison population to fracture into rival gangs, each seeking advantages. It’s a zero-sum game, and not everyone can be privileged.
May 31, 2011, 2:52 pmAbdul Abulbul Amir says:
Vouchers work the same or better for school kids because most have a parent that is invested in seeing a good outcome for the kid.
The same is not true for inmates. In any case, the public employee unions will fight both kinds of voucher with tooth and claw as it threatens their rice bowl.
May 31, 2011, 2:53 pmMartinned says:
That makes sense, except for the fact that gangs have a presence inside and outside the prison. The privilige provided by gangs includes protection when inside, and money when outside. Any attempt to split into rival gangs while inside would cause problems on the outside, either for the prisoners themselves after their release, or for their families, etc. while they’re still inside.
May 31, 2011, 2:55 pmChrisHo says:
Could we offshore our prison population under such a system? Establish a minimum standard for well being, physical and mental, rehabilitation requirements, and such, then put a price on it. I think the market could pretty much settle the costs quickly provided there was protection from lawsuits and catastrophic medical care.
This would most likely lead to prisons in low cost states. I would be the prison officers unions would fight such an idea.
May 31, 2011, 3:20 pmDon Miller says:
We have a large prison near my hometown. Lots of my friends are correctional officers there.
#1 desire of prisoners is to be located near their families. But most State prisons are not located near their families. They are located in rural areas far from Urban Centers. There are some near the urban areas, but not a lot. Especially new ones. Reason for this is mostly political. It is easier to force politically unpopular prisons on rural areas. The rural areas (like mine) are desperate enough for decent wage jobs for non-agricultural workers, that they aren’t as hard core opposed to them either.
The limited number of prisons in their home area is going to seriously limit the number of prisoners getting their first choice. To them, the rest of the choices are going to seem like a descending list of bad choices. Maybe choosing their favorite from, what seems to them, a list of bad choices, will make them less resentful about where they eventually end up.
Maybe the rural prisons will become more creative about offering additional services or better services to prisoners to try and keep their beds full.
If gang affiliation becomes the #2 choice behind location, I can see the power of prison gangs going down. Perversely, gangs lose some of their benefit if everyone is a member.
May 31, 2011, 3:26 pmSammy Finkelman says:
This diminishes the punishment, but let’s say that’s OK.
The first problem is: What happens if one prison is oversubscribed?
(This is actually a problem with any kind of voucher system – also with schools, or Medicare.)
The options seem to be:
A) Does it take as many prisoners as apply, no matter how crowded it gets?
B) Does it charge extra above the voucher?
C) Do people in charge of admission to the better prison take bribes? What about bribes for things besides choice of prison?
Also:
Could some prison say, not supply food (with the prisoner’s family being responsible for ordering food?)
May 31, 2011, 3:30 pmSteve says:
I see at least three big problems here. First is the fact that the state’s penological interests in assigning prisoners are completely written out of the equation. A particularly dangerous prisoner might prefer the location where he can most readily prey upon other prisoners, but there are few good reasons to respect that choice. The state would lose its ability to assign prisoners based upon danger level and to separate prisoners who ought to be housed at separate facilities, not to mention its discretion to transfer prisoners during their term as circumstances may warrant. Writing off the current process as some kind of “bureaucratic” black box, as though the state is just flipping coins, gives short shrift to these important interests.
Second is the problem of limited information. For this system to work, you almost have to postulate a ratings agency that will publish things like “this prison is an 8 for food, a 6 for gym facilities, and a 3 for due process.” But there is little incentive for anyone to form such an agency or to expend the resources necessary to measure the various metrics, to the extent they can even be measured. And do we plan to give convicted defendants a week in front of an Internet terminal to do their research and make a selection?
Third is the problem of misaligned incentives. Some prisoners may want the same things that the government seeks to promote, such as a safe environment where they can rehabilitate themselves in peace. But in the case of the violent prisoner looking for victims, or the drug addict looking for ready access to drugs, the incentives are wildly misaligned.
As a final note, one thing I’ve never understood about school vouchers is how people think it is mathematically possible for every child to attend the good schools. This problem becomes dramatically worse in the context of prisons where the startup costs are tremendous. Prison systems are stretched beyond their breaking point as things are. Bad prisons won’t go out of business because they will be full no matter what. Even if you spend the capital today to build an attractive, high-quality prison, presumably you only get to house new convicts; surely we’re not going to let prisoners continue “voting with their feet” throughout their incarceration any time a better alternative comes along, right? In addition, prisons give rise to all sorts of external costs, such as health care, additional crimes, and the like, and I’m not sure it’s even possible to design a system that correctly assigns all of these externalities to the management of the responsible prison.
May 31, 2011, 3:40 pmJCC says:
Prison assignment now is based on both anticipated and actual behavior within the prison, and upon risk (analysis arising from inmate past & anticipated behavior) to employees inside the institution, and to civilians without if the prisoner elects to escape. So, those thought capable of personal violence are placed in max security, white collar criminals get the military bases, etc. Every single state prisoner will go through an evaluation and selection process in an intake period. Obviously, these have varying efficiency. However, those thought dangerous – a judgement not constrained to consideration to the underlying conviction(s) of the current sentence – suffer more limitations on behavior.
Even if we were to limit the prisoners’ choice to some kind of class or tier of equivalent (in terms of security level) institutions, prisoners would look for availability of drugs or contraband, ethnic population within, gang affiliations, and the like. I doubt seriously very many would make a selection based on, say, the quality of the in-house education staff. (I can see the literature. “USNWR Penal Institutions Pro Se Rankings. Our Law Library is #1.”) What would make a prison desirable in the eyes of most convicted felons is probably not something the rest of society would see as a positive.
To suggest that those convicted of felonies and demonstrably possessing some impaired impulse control and a degree of faulty judgement can now positively affect prisons via personal choice of institution is, frankly, unrealistic. I originally used a more harsh word, but thought to be civil.
And as mentioned in another post, pleas are sometimes negotiated which might include a recommendation from the judge (or prosecution) as to placement. Note the term “recommendation.” No corrections system anywhere would be willing to surrender placement authority.
May 31, 2011, 3:41 pmChris Rhodes says:
That would be tough to accomplish when people are convicted, for example, of having a stash of pot on their person.
May 31, 2011, 3:42 pmDon Miller says:
Sasha did say that the Model Sentencing and Corrections Act in 1978 allowed for voucher systems for special services. But that no State had implemented such a system.
I think the States fear the political backlash if prisoners could buy comfort items. Those mythological “country club” prisons might become reality if that happened.
May 31, 2011, 3:47 pmDan Weber says:
If you consider prison rape a serious problem, this seems like it would totally eliminate that almost instantly. “Not-a-place-to-be-raped” would become the #1 feature prisoners most want.
Or you can just laugh about prison rape. That’s easier.
May 31, 2011, 3:50 pmAdam says:
Alternate explanation: Rather than spend money on prisons, let’s just compensate victims.
Or: Maybe the victim should choose the prison.
Both are probably trying too hard to make sense of the original comment.
May 31, 2011, 3:53 pmAdam says:
I once had a federal prosecutor offer to send prison brochures in an effort to entice a guilty plea from a foreign national.
May 31, 2011, 3:56 pmDYSPEPSIA GENERATION » Blog Archive » Prison Vouchers says:
[...] Read it. In this Article, I invite the reader to indulge in a thought experiment. What would the world look like if, instead of assigning prisoners to particular prisons bureaucratically, we gave them vouchers, good for one incarceration, that they were required to redeem at a participating prison? [...]
May 31, 2011, 4:01 pmRockfish says:
I’m curious to know more about this. My knee jerk reaction is that this would backfire. It seems to me that the civil rights groups are not likely to accept a compromise that is foisted upon them.
May 31, 2011, 4:03 pmwumhenry says:
Vouchers may well be the solution — if the problem is inmate dissatisfaction with prison conditions. If, however, as Sheriff Joe Arpaio has plausibly argued, the prospect of incarceration under arrangements and conditions typically encountered in present-day prisons in the U.S. has little deterrent effect for criminally-inclined members of the underclass (horrendous though those conditions might seem to tweedy academic types), a debate about vouchers for convicts is hardly worth having.
May 31, 2011, 4:11 pmFederal Dog says:
Vouchers couldn’t possibly go to the guys. They’d game that system into full-out dysfunction in no time flat.
May 31, 2011, 4:25 pmSteve says:
Don’t the crime statistics from Sheriff Arpaio’s county kind of refute his hypothesis? I mean, he’s had plenty of time in office to test whether harsh prison conditions have a deterrent effect, and the evidence is pointing to no.
May 31, 2011, 4:49 pmD.R.M. says:
Do you have any backing for this assertion?
May 31, 2011, 5:05 pmAdam says:
I wonder how this impacts prison litigation. If a prisoner chooses a prison based on religious affiliation or availability of certain faith programs, does it reduce his ability to pursue claims against the state for first amendment violations? If so, it would be a positive step in decreasing those claims.
May 31, 2011, 5:15 pmAdam says:
These are not words any intelligent person should ever type.
May 31, 2011, 5:24 pmJoe Kowalski says:
I’ll second this. If somehow I ended up in prison for some reason, I would be more than willing to trade all manner of creature comforts in exchange for better security designed to prevent rape. It is all too common that even short sentences effectively become death sentences because of prison rape that results in transmission of HIV.
May 31, 2011, 5:51 pmAdam says:
“All too common?” How common?
Also, how is HIV a death sentence today?
May 31, 2011, 6:12 pmKumquat says:
1) Assuming there were accurate public information about rape rates at prisons, this winds up with the same voucher problem – the lucky few get into the good institution, the rest don’t. And from what I’ve read about the problem it isn’t just a matter of changing prison policy; the very construction of a prison affects the rape rate – the standard row of cells, for example, facilitates rape because a guard isn’t going to see what’s going on in any given cell unless he comes right over to it.
2) Rape is committed by fellow prisoners, not just some random thing that happens out of the blue. As long as the prisoners who plan to be *committing* the rapes are in prisons that don’t do a good job of rape prevention, they’re going to continue to rape.
May 31, 2011, 6:13 pmTed says:
Stop confusing facts and fear-mongering. They have nothing to do with each other.
May 31, 2011, 6:26 pmTF says:
This is interesting, especially in view of reports that a number of private prisons in various states have excess capacity. I agree with one commenter that the system should take into account level of dangerousness such that each offender might be limited to a class of prisons (e.g., maximum security, mental health, etc.) There may also need to be some sort of rules in place regarding co-mingling of certain individuals. For example, a crime victim may be incarcerated and housed with his/her attacker. In another example, a cop may be incarcerated and may wish to avoid individuals s/he arrested.
Over subscription might be dealt with by earning additional voucher points (successful rehab, no violations of rules, etc.) to earn one’s way into a desired facility. Even if the reason for wanting to be in that facility is that it offers something to inmates that we might disapprove of, the process of earning one’s way in might make less desirable facilities better places with eager inmates trying to earn their way out.
A voucher system might also lend itself to cross-jurisdictional services. Prisoners in overcrowded California facilities could make the choice to leave the state to go to less crowded facilities in Montana.
As for the need for information, I suspect that there is at least as much information flow in prison about other facilities as there is about schools. I have interacted with two individuals in the process of “selecting” a prison. One fought hard for a medical facility (that person needed specific medical care) while the other sought to avoid proximity to certain individuals. In both cases, vouchers might have helped with that process. Prisoners have access to information inside and outside (e.g., visitors). Official, objective statistics could and should also be kept and made available inside and out.
May 31, 2011, 6:38 pmDick Fitzwell says:
The problem with this proposal is that prisoners are not the correct consumer of prison services, the state is. I would instead offer a system of private prisons that compete for state contracts based on outcomes: cost, lowest percent of recidivism ranked by crime type and prisoner history, lowest number of successful appeals re: prison conditions, greatest percentage of released inmates employed 2 (or X) years after release, mortality rate (age-adjusted), lowest incidence of alcohol and drug offenses by released inmates, and other like metrics.
This gives prisons the incentive to compete for state contracts and possibly performance-based payments.
The correctional officer unions would hate it, but they are a large part of the problem and we need to get rid of them one way or the other. Privatize prisons, allow out-of-state incarceration, and contract based on verifiable data-driven outcomes.
Bottom line is that the state is the consumer, not the prisoner.
May 31, 2011, 7:37 pmJSF says:
I’m curious to know what you have assumed as the prisons’ objective. Is it maximizing the voucher amounts, minimizing recidivism, etc.? In education the objective has generally been maximizing test scores.
May 31, 2011, 7:43 pmAlso, are you discussing (and possibly dismissing) a price system instead of/complementing vouchers? Such system exists de facto in certain developing countries.
Peter Orlowicz says:
There might be groups of prisoners other than gang members or violent offenders who you wouldn’t necessarily want to choose their own prison. Politicians convicted of public corruption crimes, for instance, might well desire to be assigned to a prison where they know (or appointed) the warden. More generally, white collar offenders are likely to be well-educated and not in need of many of the rehabilitation, vocational or treatment programs you appear to be proposing. Those individuals would then seem much more likely to choose a prison based on the comfort or lifestyle elements.
I also think part of the motivation behind school vouchers is that higher socioeconomic class students already have exit options from the public school system; private schools, religious schools, or home schooling with private tutors (or just allowing one parent to stay home), for example. So, school vouchers are more aimed at extending some of those same opportunities to the rest of the students. I don’t think prison has an analogous group that already has these opportunities.
May 31, 2011, 8:03 pmtrackvikings says:
These seems to fit a weird narrative. Obviously deterrence is an important part of our system, but since we do not have a permanent incarceration system and we plan on eventually releasing most inmates it absolutely makes sense to have a system where prisoners can:
1) reasonably avoid crime while in prison
2) prepare themselves for a life after prison
1) is a huge deal. It may sound easy enough to say “just don’t join a gang in prison”, but that’s not always practical in prisons with a strong gang system and guards that feel it’s their job to “punish” prisoners by turning a blind eye to rape, beatings, etc.
2) is a little more obvious given that we do not permanently incarcerate all offenders.
Doing either of these things would “improve the quality of prisons for prisoners” or some BS like that, but they would also make things a lot better for non-inmates as well.
Prisons are not deterrents because people don’t properly weight the consequences, not because prisons aren’t bad. How many people would be willing to make their same salary (including high earners) to live in a maximum security prison with high risk inmates for the next 5 years who would also leave prison with an ambiguous criminal record. I imagine relatively few, I for one would not.
May 31, 2011, 8:20 pmptt says:
Survival rates in prison aren’t so good, especially in the South.
May 31, 2011, 8:41 pmtheobromophile says:
I could see this working if it only applied to, say, first-time offenders for certain crimes, or people who have a short sentence.
As other posters have mentioned, this would need to be done in a state/jurisdiction with excess prison capacity, and perhaps enough different people running different prisons to create meaningful differences. (Of course, the inefficiency there is that you will need more prison beds than there are prisoners; otherwise, everyone is guaranteed to have a full house, and the competition is minimal.)
Furthermore, you might need some way to allow prisoners to change prisons – perhaps vouchers based on good behaviour? Otherwise, a prison manager could fill the place up with long-term people, then let the quality go down the drain and pocket the difference between the value of the voucher and the cost of running the place. Of course, the incentive might be enough, in itself, to encourage prisoners to behave better while behind bars.
I imagine that the “country club” aspect of prisons will simply not happen, because it’s expensive to provide those amenities, and the fund of money to the prison will be limited.
Sasha might have to find someone to make a Fodor’s for prisons…. ;)
May 31, 2011, 8:54 pmChrisTS says:
Some years back, at the height of the Law and Economics movement, I read an article that suggested we could solve our national debate about abortion by having pregnant women who wanted abortions bid against an appointed representative for the fetus.
There were some clever details about setting up the program, complete with promises that (a) the dice would never be completely loaded against poor women and (b) eventually, the system would pay for itself.
It made me think of Hart’s comment that L&E seemed more creative than realistic (he said it more sweetly, of course).
I’m sorry, Sasha, but this strikes me as a similar failure to recognize the complexity of values– not unlike your co-conspirator’s (Randy’s) work suggesting we just dump punishment and make it all into a compensation scheme.
May 31, 2011, 9:24 pmtrash says:
You can’t have checked any time in the last few centuries, because anyone who knows anything about penological theory knows there are multiple theories as to why we incarcerate, and multiple theories about what benefits society should receive from the practice.
Any first year crim law outline lists more theories than that. “Punish” and “rehabilitate” are, contrary to your specious comment, actually opposite goals. Punishment involves causing harm to people who cause harm to others, for the goal of achieving justice, because the perpetrator deserves to suffer. Whether the wrongdoer is deterred from future misconduct is completely irrelevant from a retributive perspective.
The purpose of rehabilitation is to return someone to society who is now capable of living by its rules, often a doomed hope, but there are plenty of people who committed serious crimes at some point and then went straight.
What’s particularly disappointing about your particularly silly post is that you appear to be viewing Sasha Volokh as some kind of giddy liberal, when he is suggesting a rather conservative market-based solution for a real problem.
I do not think (at least from this initial post) that he has addressed some serious issues with his proposal, such as gangs gaming a system like he is proposing in order to take over their own chosen prisons and run their criminal racketeering operations. I hope he develops it further.
Your knee-jerk rant is invalid, though.
May 31, 2011, 9:51 pmRicardo says:
I’m still waiting for Steven Segal‘s opinion.
May 31, 2011, 10:39 pmSarcastro's Little Brother says:
Let’s just empty Manhattan, fill it with prisoners, and hope the President never needs to be rescued from it.
May 31, 2011, 10:42 pmKanchou says:
Well, if this idea get into practice, I guess I will be getting more requests for this book in my library.
Federal Prison Guidebook by James Publishing.
“In 400 pages, or about 4 pages each, 105 federal prisons are described under the headings listed below. Most valuable and difficult to obtain is the institution-specific information on educational, vocational, religious, and recreational opportunities.
Education
Library
Vocational/Apprenticeship
UNICOR
Counseling/Rehab Services
Health Services
Housing
Smoking Areas
Fitness/Recreation
Religious Services
Commissary
Telephone Policy
Inmate Mail
Visiting Hours
Lodging/Accommodations Nearby
Directions to Facility”
I looked at it but declined because we don’t get our funding from either federal or criminal cases.
June 1, 2011, 12:38 amAG says:
This is an intriguing policy suggestion. The Department of Corrections is clearly not correcting much, by any data-driven measure.
(1) Prisons are currently very expensive societal structures which (2) generally exacerbate social problems.
(3) Private prisons often out-perform public prisons in one key budget area: employee overtime. A shocking amount of money is spent on employee overtime in the public sector because public prisons are terrible places to work (because all the prisoners are miserable) and employees “call in sick” all the time, pushing overtime budgets skyward.
(4) Political reform to make prisons better places to work is difficult due to the body politic’s lack of sympathy for prisoners.
The solution to both (1) and (3) is complicated by (4). The prison voucher idea could address (1), (3), & (4), while additionally–and most importantly–addressing (2) as discussed in this post.
June 1, 2011, 12:55 amDavid M. Nieporent says:
Call it “Australia.”
June 1, 2011, 1:40 amDavid M. Nieporent says:
Why wouldn’t criminal defense lawyers have an incentive to do the research? It’s their clients who will benefit.
June 1, 2011, 1:43 amDavid M. Nieporent says:
If by the “good schools” you mean schools at the top of an ordinal ranking, obviously it’s not mathematically possible. If by “good schools” you mean schools that do a good job, obviously it is mathematically possible. (You overlook the possibility that competition will lead to overall improvement.)
June 1, 2011, 1:50 amRicardo says:
I like Peter Moskos’ perhaps equally provocative suggestion for improving the American criminal justice system: bring back corporal punishment.
Well, I’m not sure if I like it but I don’t really get the idea of prisoners deciding where they get sent: this would just create political headaches as prisons would offer cable TV and other amenities while an outraged public would demand a law banning cable TV in prison and then prisons would think of some of some other way of improving conditions before it gets banned, etc.
June 1, 2011, 6:16 amwallace says:
I’ve watched a number of sentencing hearings and the number one concern of the convicts was getting put into a facility that was convenient for family and friends to visit. Proximity to friends and family would still be an overriding concern among prisoners in a voucher system.
June 1, 2011, 9:25 amStones Cry Out - If they keep silent… » Things Heard: e175v3 says:
[...] in a different venue. I wonder if the same people against school vouchers would be for these. If so, why the [...]
June 1, 2011, 9:50 amWednesday Highlights | Pseudo-Polymath says:
[...] in a different venue. I wonder if the same people against school vouchers would be for these. If so, why the [...]
June 1, 2011, 9:51 amyankee says:
When you start outsourcing government services to private contractors, the private contractors are going to turn around and lobby for more benefits for themselves. Sometimes this just takes the form of asking the government to buy unnecessary and overpriced services (see: defense contractors) but it would be particularly pernicious in the case of expanded private prisons. The last thing we need is more lobbyists clamoring for more incarcerations and longer sentences.
It’s often beneficial to use contractors anyway, but the public choice angle needs to be considered as part of the downside.
June 1, 2011, 9:58 amSmooth, Like a Rhapsody says:
Has a planning committee been organized for SLB’s 80th birthday this week??
June 1, 2011, 10:16 amWe each owe him a cerveza.
Adam says:
You are not me, unless I’m having some sort of Fight Club-type break.
June 1, 2011, 10:57 amAdam says:
I’d be interested in stats, although the “example” given was a short prison stay involving rape and HIV transmission thus being converted to a death sentence.
June 1, 2011, 11:03 amKarl says:
This would provide less popular prisons an incentive to limit the opportunities to score additional points or to make the criteria for earning points especially difficult – especially if the funding follows the prisoner. A transfer out represents a loss of funding to the prison that awarded the points making the transfer possible.
June 1, 2011, 11:32 amJohn David Galt says:
I agree with the first comment, but offer an alternative that might lead to the same market-linked improvements as vouchers without interfering with the punishment which is one of the purposes of incarceration:
Let’s sell the convicts into servitude for the length of their sentence. At public auction.
The 13th Amendment does appear to allow this.
June 1, 2011, 12:54 pmNatalia says:
1. Minor point about trading rights for benefits: you’ve chosen a bad example, as health care in prison is a right, not a benefit. Perhaps something like better (not just adequate) food?
2. In order for this to be anything beyond an academic parlor game, you have to deal with how the the idea of the “rational actor” in economic theory squares with the medical concept “mental illness.” Since prisons are THE epicenter of mental illness in the US, it’s not a sidenote. I am not suggesting that untreated or mistreated mentally ill people cannot at times make sound choices, but by definition, their thought processes cannot presume to fit to some norm. So how does that work for a market that assumes people make rational choices?
3. Look into current regulations about prisoners getting news about, or corresponding with inmates within, other institutions. Most prisons prohibit it. This presents a serious barrier to information flow about quality of prisons.
4. California’s experiment in allowing prisons to self-segregate by gang was an absolute disaster. That’s all that will happen here, and it does not work well.
5. It would be highly amusing if prisoners flocked to jurisdictions where they could vote; which of course would result in those jurisdictions denying them the right to vote.
June 1, 2011, 1:10 pmhappycynic says:
Market solutions presume a rational actor model. Prisons, however, are largely composed of people with various forms of emotional or mental defects which prevent rational action. I don’t think any kind of voucher system is likely to be successful.
Edited: Natalia beat me to it. But I would like to add that even those prisoners without diagnosed mental defects often have issues which take them out of the rational actor model. For instance, the gang-banger who gets a felony murder conviction because someone stepped on his shoes or “disrespected” him in some way can hardly be a rational action. In many cases you’re dealing with anger issues and very poor impule control.
June 1, 2011, 2:22 pmIf you really want to reform prisons, end the war on drugs. Prison was designed as a warehouse for the worst of the worst. It makes for a poor substance abuse policy.
Careless says:
Funny that no one else seems to have brought this up. What would the legal response be when the voucher system immediately resulted in massive racial segregation?
June 1, 2011, 5:29 pmThought Experiment: Prison Vouchers « Rob Greenberg says:
[...] thought experiment over at the Volokh Conspiracy, “What would the world look like if, instead of assigning prisoners [...]
June 2, 2011, 10:36 amSammy Finkelman says:
It’s right now possible if someone is out on bail.
Bernard Madoff and Dominique Strauss Kahn were basically in private prisons of their own design and at their own expense. It was a condition of bail.
June 2, 2011, 6:10 pm