Also, speaking of prison vouchers, Giovanna Shay of Western New England School of Law has a response to my prison vouchers article up on PENNumbra, One Market We Do Not Need. Here’s Giovanna’s abstract:

Note also that the title of the post is the correct form (even if it was never actually used on the actual day), which you can trot out next year. The word for “Ides” takes the name of the month as an adjective, and in fact month names generally are adjectives in Latin. “Idus” is a fourth-declension feminine plural.

12-718.  Civil liability; wrongful birth, life or conception claims; application

A.  A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.

B.  A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.

C.  This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.

D.  This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.

My reading of the statute is that this doesn’t prevent a doctor from voluntarily assuming a duty to disclose everything (or, in the alternative, compensate a parent or child). (I would think that if this and similar statutes pass, there would be an industry of doctors trying to attract more sophisticated customers with assurances of truth-telling.) If a patient or child then litigated under such a contract, perhaps this wouldn’t be a “civil action for wrongful birth” or “civil action for wrongful life”, as required by subsections A and B, but rather just a contractual litigation based on the misrepresentation.

But it seems that the statute could also be interpreted more strictly: if the doctor commits to compensate “for wrongful birth or wrongful life”, then the measure of damages would still be wrongful birth or wrongful life, so perhaps the action, though contractual, could still be labeled a “civil action for wrongful life [or birth]“, and thus the statute could be construed to bar even such a contractual litigation?

Even under that reading, it seems that a doctor could still commit to disclose everything or else pay some liquidated fee, say $10,000.

I haven’t read any cases or commentary on this issue, so it’s entirely possible that this has been discussed already. What do you folks think?

Mathematics Buff Develops New Way To Remember Value of Pi
Mnemonic gives 167 digits of famous geometric constant

MARCH 4, 1996 — LOS ANGELES, Calif. “How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics.” The slogan of mathematics fraternities? The tormented cry of the disgruntled physics student? Not quite. It’s the standard way scientists remember the value of pi, one of the most important constants in all of mathematics. Count the number of letters in each word, and you get 3.14159265358979.

Now, Alexander Volokh, a writer and amateur mathematician living in Los Angeles, has developed a system for easily remembering the first 167 digits of pi, which he says may change the way mathematics students worldwide remember their favorite number.

Pi is approximately equal to 3.14 and represents the ratio between the circumference of a circle and its diameter. “For almost as long as mathematicians have been studying pi, they’ve been making up mnemonics, or cute ways of remembering its digits,” Volokh explains. “Unfortunately, the 32nd digit after the decimal point is a zero, which has usually nipped this method in the bud. Even mathematicians don’t know any words with no letters in them.” But Volokh claims to have solved this problem by using many sentences, with the end of each sentence representing a zero.

Volokh’s mnemonic goes as follows:

“How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics; but we did estimate some digits by making very bad, not accurate, but so greatly efficient tools! In quaintly valuable ways, a dedicated student — I, Volokh, Alexander — can determine beautiful and curious stuff, O! Smart, gorgeous me! Descartes himself knew wonderful ways that could ascertain it too! Revered, glorious — a wicked dude! Behold an unending number: pi! Thinkers’ ceaseless agonizing produces little, if anything! For this constant, it stops not — just as e, I suppose. Vainly, ancient geometers computed it — a task undoable. Legendre, Adrien Marie: ‘I say pi rational is not!’ Adrien proved this theorem. Therefore, all doubters have made errors. (Everybody that’s Greek.) Today, counting is as bad a problem as years ago, maybe centuries even. Moreover, I do consider that variable x, y, z, wouldn’t much avail. Is constant like i? No, buffoon!”

By counting the number of letters in each word, and considering the end of each sentence to represent a zero, one can easily reconstruct the value of pi to 167 digits after the decimal point:

3.1415926535 8979323846 2643383279 5028841971 6939937510 5820974944 5923078164 0628620899 8628034825 3421170679 8214808651 3282306647 0938446095 5058223172 5359408128 4811174502 8410270.

“This mnemonic makes remembering digits as easy as pi,” Volokh explains. Volokh owns a pair of French socks with the first few dozen digits of pi on them, but they are of little help, as they stop being correct after the seventh digit.

Will the mnemonic be useful? “No,” Volokh concedes. “All you ever need to know is 3.14 — only two digits after the decimal point.” But, Volokh points out, it’s no more useless than, say, Shakespeare or the Mona Lisa. “To say that math has to be useful is like saying that the English language is only good for ordering pizza.”

Volokh graduated from UCLA in 1993 with a B.S. in mathematics/economics and a B.A. in English/world literature. He developed the system with David Tazartes . . . and Steven LaCombe . . . .

UPDATE: Clayton Cramer shows how this mnemonic actually is useful, if you’re in Boise.

Here’s my conclusion. Thanks again to all the commenters, some of whom I’m answered and some of whom I haven’t (hey, I’ve got other papers to work on!). Some of your points will make it into future drafts of the paper.

*     *     *

Throughout, I’ve focused on private prisons. But these non-empirical arguments are often used to oppose privatization in other areas as well—from the military, policing, and air transport security (which, like prisons, raise “privatization of force” concerns) to social services like water provision, education, health care, and Social Security.The limitation to prisons was useful for illustrative purposes, but the employee-contractor distinction has similar problems in these other areas.

It should be clear, though, that I’m not making a general argument in favor of privatization. I’m only arguing against the use of certain non-empirical arguments related to the employee-contractor distinction. My goal here is merely to clarify the discourse, and clear away arguments that I believe are unproductive.

On empirical grounds alone, there are plenty of possible reasons to oppose privatization. I’ve already mentioned many of them in the Introduction: critiques based on factors like cost, quality, democratic influence, accountability, and penal policy, to name just a few. Privatization critics have been vocal about the “[f]raud and waste,” “[i]nsufficient oversight,” and reductions in “transparency” and “accountability” that, in their view, have accompanied private contracting.One can complain that private firms will use anticompetitive tactics, opportunistically hold out for favorable contract renegotiations when circumstances change,use their position of incumbency to outbid competitors in later bidding (or even avoid later bidding altogether),fail to develop institutional norms of professional service,or go bust and leave an unprepared government holding the bag.

I’m not taking a position here on whether these empirical critiques are justified. I’ve argued, in other work, that at least some of these empirical critiques are overblown. But enough respectable people have made enough respectable empirical arguments strongly opposing privatization that an entirely empirical case against privatization in particular spheres may well be fully adequate.

Moreover, adopting an empirical perspective doesn’t imply any sort of utilitarian law-and-economics efficiency model. Sharon Dolovich, for instance—a strong critic of prison privatization—simultaneously argues, in the Duke Law Journal, both against the efficiency framework and in favor of empirical reasoning (while acknowledging the temptation of non-fact-based arguments):

The insistence of the inherent-public-function approach on the irrelevance of the practical consequences of prison privatization likely stems from the desire of these critics to escape the powerful force field of comparative efficiency, which operates to crowd out all considerations except practical consequences. Yet understandable though this resistance is, to the extent that it denies the moral relevance of actual conditions of confinement, it will necessarily operate with a conception of legitimacy that is only partially satisfying at best. It will, moreover, appear wholly insensitive to the needs and interests of the prisoners themselves and thus be vulnerable to charges of “intellectual indulgence” or “moral or ideological fundamentalism.”

Perhaps non-empirical arguments are correlated with anti-privatization views, but if so, this is only as an empirical (!) matter. The bottom line is that one can be convinced by this Article, abjure non-empirical argumentation on privatization matters, and still be just as anti-privatization as one was before reading it.

In this Article, I also haven’t sought to promote or dispute any substantive theory of punishment. I’ve questioned the distinction between public employees and private contractors, but I haven’t questioned any of the underlying theories that the distinction supposedly served.

Thus: I haven’t questioned that accountability is important, but I have suggested that there’s no necessary connection between public status and accountability. I haven’t questioned that private purposes are undesirable, but I have suggested that there’s no necessary connection between private status and private purposes. I haven’t questioned that institutions should be subjectively legitimate, or that punishment should be communicative, or that people should respect prisoners as real people and care about their well-being, but I have questioned whether people really consider private contractors to be less legitimate, whether privatization makes communicative punishment harder, and whether privatization implies moral distancing.

Perhaps all this is true, but let’s investigate it empirically. Of course, I don’t demand concrete survey data—where real data collection is impossible, theoretical argument as to which way the data might point is acceptable. But we have to start from the premise that the data, if it existed, could go either way. Mere assertion, backed up by essentialist statements about the supposed nature of the public and private sectors, won’t do.

It should therefore be apparent that, though the focus here has been empiricism, I’m not generally arguing for consequentialism. After all, for purposes of this Article, I’ve endorsed all sorts of non-consequential, non-instrumental claims, like the inherent importance of accountability or public purposes or communicative punishment. I’m sympathetic to non-consequentialist arguments generally, but I don’t think those arguments adequately distinguish between employees and contractors.

Finally, this isn’t an argument against the public-private distinction, either in political theory or in constitutional law. I’m fully committed to the idea, basic to modern liberal political philosophy, that there is an important difference between the public and private sectors, even if there are cases that are hard to classify.Locking people up on your own initiative is different from public prisons in a way that private contract prisons aren’t.

And I have no basic problem with the general idea of the state action doctrine, even if one may quarrel with some of the individual cases. The state action doctrine crops up in some areas that have nothing to do with contracting out;the arguments I’ve presented here don’t apply in those cases. Where there is contracting out, sometimes state action does indeed treat employees and contractors identically;in other cases, there are enough empirical differences, as a general matter, between employees and contractors, that treating them differently may make eminent sense.

The same goes for any other doctrine that distinguishes between employees and contractors, like whether an agent can make the principal liable in tort. My argument here should merely be taken as an attack on the non-empirical lines of argument that might support a distinction between employees and contractors.

Contractors, just like employees, are flesh and blood. They’re private people like you and me, who lived a quiet life in the private sector until they felt the call of duty, or were conscripted, or wanted to make money, or any combination of the above, and became, in one way or another, government actors.

They have their own views, their own ideologies, their own agendas. If they work voluntarily, they “profit” from government work, insofar as they’re being paid more than the bare minimum it would take to induce them to do the work. They’re not completely controlled in every single action, so they have some discretion, within limits, to follow their own preferences rather than the voters’ or the legislators’ or their immediate bosses’ commands. And they mostly have contracts. Some of them file W-2s and are called “employees.” Some of them file 1099s and are called “contractors.” But this is an administrative distinction, not necessarily a philosophical one. To limit the state a priori to the “employee” category is to let an HR category channel one’s moral thinking.

Of course employees and contractors differ systematically, because different contracts have different terms and different remedies and encourage different actions. Predictably, employees and contractors will act differently, and so it makes sense for us to be for or against privatization under particular conditions. This is the empirical approach to privatization.

I understand the temptation to seek out non-contingent, non-empirical grounds to favor or oppose privatization, especially when one opposes privatization for reasons that sound like “justice” reasons. Of course, justice and empiricism can live together just fine: one could just say “I predict (possibly based on past experience) that private prisons will violate prisoners’ rights more often, and this is unjust; therefore, we shouldn’t privatize prisons.” But now we’re vulnerable to the vagaries of data and empirical inference. Surely it’s nice to have a more solid, less fact-intensive ground of argument.

I appreciate the impulse in general, and so, as I’ve said, this Article shouldn’t be understood to say that everything is contingent. Nor is the argument here opposed to “soft” concerns like symbolism; nor do I believe, as Richard Harding does, that “the purist moral argument” (which includes accountability concerns) “is something of an intellectual indulgence.”

What I’m essentially attacking is the failure to think clearly about what it means for the state to act. Liberal political philosophy gives us many reasons to think that certain realms—many would include at least the police, prisons, military, and courts in this category—belong exclusively to “the state.” And, colloquially, one often talks about privatization, including contracting out, as being a retreat of “the state.” But this is a sloppiness of terminology. Between favoring state action and opposing contracting out—between recognizing areas of public authority, and insisting that the state be limited to one specific standard-form contract—falls the shadow. Contracting out is merely a retreat of state employment in favor of other forms of state contracting. There are plenty of differences between different kinds of contracting, but they all relate to how these contract forms play out in the real world. The a priori philosophical distinction between public and private provision is tempting but ultimately illusory.

Here’s the last substantive section, on symbolism and expressive concerns. The conclusion should come tomorrow.

*     *     *

A. Public Perception

Suppose my arguments are correct, and there’s no inherent difference between public employees and private contractors. But suppose the public nonetheless feels differently. Of course, because public and private providers can differ in their attitudes or in the actions they take, public attitudes might be molded by these differences; so, to keep the hypothetical clean, let’s again assume that public and private providers don’t differ empirically. Suppose public attitudes against privatization are entirely based either on incorrect beliefs about empirical differences or on a perceived “social meaning” of privatization.

Perhaps such attitudes are based on a view among the public that private companies have illegitimate private purposes. Martha Minow, for instance, writes that private prisons “may jeopardize the legitimacy of government action because the public may suspect that private profit-making—rather than public purposes—is being served.”Justice Arbel of the Israeli Supreme Court strikes a similar note:

[E]ven if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved . . . , something that undermines the moral authority underlying the activity of that enterprise and public confidence in it, since even if justice is done, it is not seen to be done.

Or the relevant perceiving community may be the inmates themselves rather than the public at large: Richard Lippke writes that “[p]rivate prisons may add insult to injury and thus fuel social discontent, since it may not go unnoticed that such facilities, in effect, turn offenders into raw materials for corporate profit.” Similarly, Michael Walzer writes, “[t]he critical exposure is to profit-taking at the prisoners’ expense, and given the conditions under which they live, they are bound to suspect that they are regularly used and exploited.”

Though I’ve rebutted the “private purposes” argument above—public employees, too, are private people with their own purposes—that’s not important for the “public perception” argument. The “public perception” argument based on private purposes works even if people are quite wrong to perceive private prisons this way. The public perception might stem from an assessment of the empirical record of public vs. private prison management, or a prediction thereof—or it might not. But what’s relevant for this argument is people’s feelings about private prisons, not whether these feelings are correct. Indeed, let’s assume for now that the feeling has no empirical basis.

Or the difference in public perception may have nothing to do with any dislike of the private sector. Perhaps, as Michael O’Hare and his coauthors write, it’s merely a perception that public-sector action equals collective action while private-sector action doesn’t:

Public and private production differ in two primary ways. The first is that public actions have the authority, mandate, and consent of society as the consequence of collective choice; they are the concrete manifestation of what we want to do as a group. The second is that public actions serve a symbolic purpose; they are what we want to see ourselves choosing to do as a group. They are a significant part of what it means to be a political collectivity rather than an atomistic plurality.

The underlying argument, I’ve argued, is incorrect: public-sector action isn’t uniquely “us” acting because even employees are private agents working under contract. But again, what’s important for this argument isn’t whether its basis is correct but whether people think it to be correct.

Whether people’s (possibly uninformed or irrational) perceptions should have an independent effect on policy, beyond the effect of any underlying objective facts, is debated in many areas. For instance, in the area of risk regulation: If people systematically think harmless activities are harmful, should policy ignore such mistakes, perhaps because rational regulation should only responds to true risksor because it’s unjust to regulate people unless they impose true harms? Or, instead, should policy accept such “mistakes” as valid because even incorrect fears are real fears?

One can make the same sorts of arguments about whether privatization is appropriate in a society where people—without any reason grounded in real-world results—believe it to be inappropriate. I don’t need to resolve this question here, because subjective feelings have a real existence and are relevant in the real world. Institutions that are believed to be legitimate might be more effective in various ways; whether an institution is public or private affects people’s expectations of service;and expectations of service and even “mere” views on legitimacy affect people’s happiness, which is obviously relevant to consequentialists and can play a role in many other theories as well. Though it usually makes sense to assume that the government has access to the same technology as the private sector, in this case it would be as if the government had a special technology of “legitimacy” that couldn’t be fully transferred to the private sector—which would be an independent argument in favor of public provision.

At this point, our argument can move onto empirical ground, and we can look either at data on the importance of feelings of legitimacy for the effectiveness of institutions or at data on how unhappy people are at privatization.In any event, if we found that no one actually cares whether a service is privatized, that would presumably be a dispositive strike against a public perception objection. For instance, one can imagine a world where no one cares whether prisons are public or private. Perhaps we already live in such a world now, at least to some extent.Or perhaps any perceived illegitimacy of private prisons is merely a transitional concern, and people will come to think otherwise after enough experience with privatization. Perhaps the government could “imprint literally private acts with semantically public signifiance, as it has learned to do with private education (by accreditation, curriculum supervision, and the pledge of allegiance) and the private services of defense lawyers (by making them officers of the court).”It’s even possible that, if private prisons do an excellent job, people may come to think of private prisons as more legitimate.

Moreover, two can play at the symbol game: “A contract itself is a powerful symbol of legally enforceable obligations and responsibilities.” I don’t know of any studies testing the proposition as to public attitudes toward prisons,though apparently at least some prisoners don’t seem to care.

B. The Expressive Nature of Punishiment

So far, I’ve discussed arguments based on people’s (whether the general public’s or inmates’) subjective views of privatization; these arguments could, hypothetically, be conclusively rebutted by showing that no one cared whether prisons were public or private. Other arguments, though, don’t rest on subjective views, but argue that the social meaning of private provision is objective.

Mary Sigler takes this view explicitly. Criminal justice, she writes, is a

“moral dialogue” between citizens and the state as the legal embodiment of the political community. . . . Against the backdrop of the community’s norms and conventions, the social meaning of criminal conduct is objective, conveying disrespect for victims and contempt for community values regardless of the offender’s subjective motive or intent. Likewise, criminal punishment draws its meaning from the values of the community and its conventional forms of condemnatory expression. These reflect “deeply rooted public understandings” of particular modes of punishment that signify the gravity of criminal misconduct.

Moreover:

Because “certain forms of hard treatment have become the conventional symbols of public reprobation,” it is not enough to attend to the severity of punishment; we must also consider the mode of punishment as well. . . . [W]hat is heard “depends not just on the content of what is said, but on the context in which it is said, and the accent in which it is spoken.” Effective communication thus depends on the identity of the speaker as well as the identity of the listener, lest “some offenders . . . hear its voice, not as the voice of a community to which they belong and are treated as belonging, but as the voice of an alien and oppressive power . . . .” It must be “us against us” rather than “us against them.”

Privatization, then, is wrong because “[b]y privatizing punishment . . . , we terminate the dialogue between offenders and their community in just the same way as if we privatized prosecutors and criminal courts.” It can “easily . . . scramble[]” the message of punishment by

interpos[ing] a filter between the community and the offenders whom it calls to account. In particular, by transforming the institutions of punishment into commodities—fungible objects of economic exchange—privatization alters the character of punishment, reducing the punitive enterprise to a question of price point and logistics. It becomes a puzzle to be solved rather than a dialogue to be opened or renewed. For in the same way that “[t]he law and the courts speak and act in the name of the political community,” our conventions establish that our prisons do so as well. “That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual.” As we distance ourselves from the condemnatory practice, however, we attenuate its message of censure, alienating offenders and ourselves from the meaning and value that constitute the liberal-democratic community.

Note, first, Sigler’s idea that private provision “interposes a filter” between the community and offenders by making prisoners into commodities and reduces punishment to a logistical enterprise. (Sigler finds this objectionable; on the other hand, former New York State Corrections Commissioner Thomas A. Coughlin III agrees that private prisons attenuate the moral condemnation of society, but believes this is an advantage in the case of juvenile facilities, where excessive stigma is inappropriate.)

Here, again, there is a mismatch between this critique and privatization. Perhaps it’s wrong to think of punishment in terms of logistics, but this is a critique of a particular way of thinking about prisoners, not a critique of privatization (even if the two might tend to go together). I’m sure one can find public Department of Corrections employees who are bean-counters, and private prison firm employees who take their correctional responsibilities seriously. DOCs, after all, deal with budgets and dollars and accounting, just like private firms, and even if privatization is taken off the table, nothing prevents the appointment of a DOC director committed to efficiency and cost-cutting. This is a variant of the “private purposes” argument that I’ve critiqued already.

But now let’s focus on whether her broader argument is subjective or objective. Despite the remark that the social meaning of criminal punishment is “objective,” note the contingent empirical (and possibly subjective-sounding) statements: “conventional forms of condemnatory expression,” “deeply rooted public understandings,” “conventional symbols,” whether “some offenders . . . hear its voice,” and whether the “message” is “scrambled” or “attenuate[d]” (which one might take to imply the recipient’s subjective failure to understand the true message). What if people just stop reading anything into the private nature of the prison, and start treating the mode of delivery as irrelevant?

Sigler notes the possibility, and clarifies that such “cultural change” should be “resist[ed].” This isn’t a matter of subjective perception, she stresses, but is inherent in liberal ideals:

To the extent that this is the case, it suggests how far we have strayed from the normative path of liberal-democratic meaning . . . [I]t is not a matter of indifference to us what course these changes take . . . . [T]he challenge is to make a case for meaning in terms of our liberal-democratic values and to promote or resist cultural change on that basis.

And how do “liberal-democratic values” support public provision?

[T]he communicative conception of punishment is predicated on precisely those features of the human condition—on our potential and our limitations—that ground our liberal-democratic commitments. There is thus nothing “mysterious” about the idea that it matters who inflicts punishment. For punishment engages fellow citizens in one of the most serious and definitive enterprises of a liberal-democratic community—holding ourselves and one another responsible for our actions—and the voice of the community is clearest when it speaks for itself.

But then we’re back to the familiar problem of what it means for the community to speak “for itself.” Given that the community needs an agent, and the available agents won’t work except by contract, we’re just talking about the community speaking through one form of contractor versus another.

In light of this, it’s apparent that Sigler’s argument is really about the virtues of “communicative . . . punishment”—perhaps a worthy correctional goal, but one that’s theoretically independent of the question of privatization.

Richard Lippke suggests another way in which prison privatization might be thought to run counter to a communicative theory of punishment. Under R.A. Duff’s theory, punishment must aim, through moral dialogue with the prisoner, at moral reform. Lippke suggests that “[i]nstead of being concerned about the moral well-being of offenders, a state that turns them over to private prisons may appear to be washing its hands of them.”But Lippke rejects this suggestion: the state could always require private prisons to educate offenders morally and award contracts based on success in meeting this requirement.Perhaps inmates might be less morally educable in private prisons because they “may wonder whether what they are compelled to do is for their own good . . . or is calculated to promote the bottom line of the corporations that own the facilities”; but Lippke notes (consistent with my argument) that public prison administrators and guards also have their own private interests, and in any event this is now an empirical question about prisoners’ subjective views of privatization. Lippke suggests that “inmates in private prisons might quickly lose sight of the profit-making aspect of such enterprises if they are treated well and provided opportunities to improve their lives.”

 C. Social Respect and Responsibility

We’ve seen earlier how the Israeli Supreme Court ruled that private prisons violate the constitutional right of personal liberty. The Court also had an alternative holding: that private prisons violate the separate constitutional right to human dignity. The idea of private purposes—which I’ve rebutted above—still made an appearance there, but the flavor was slightly different:

There is . . . an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation . . . makes a financial profit. . . . [T]he very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls.

The Court noted that this claim didn’t depend on the inmate’s “subjective feelings”; being a means to a private firm’s profit-making is “an objective violation of [one’s] constitutional right to human dignity.”

But the Court went further than a mere private purposes argument. Private prisons, it said, violate human dignity because of “the social and symbolic significance of imprisonment in a privately managed prison.” Because there is a “social consensus” that private prisons “express disrespect,” the practice violates human dignity—“irrespective of the empirical data . . . (which may be the source of the symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances.”

The social consensus that supposedly underpins the expression of disrespect could be infinitely variable: the Court’s framework is similar to that of Geiza Vargas-Vargas, who argues against private prisons on the ground that, given the history of slavery, and given the prevalence of black men in prison, “[t]he joint venture [of prison privatization] has effectively reintroduced the policy of enslaving black men for profit.”

The Israeli Supreme Court had a different social consensus in mind, though: private imprisonment “expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise.”I’ve already questioned the “private purposes” argument above,but I’ve also granted that people’s views of the private sector can be legitimate to consider, even if those views are irrational. Even if the actor’s motivations are irrelevant, the perception of the meaning of private incarceration by members of the public is relevant.

Joseph Field takes a similar divestment line:

Prison privatization represents the government’s abdication of one of its most basic responsibilities to its people. . . . [It] can be viewed as a move by the government to detach itself from this responsibility for the sake of private values, including the profit motive. . . . Transferring the provision of corrections to the private sector is tantamount to transferring an important element of government responsibility. . . . Not only is corrections one of the government’s most basic responsibilities, it is probably the most sobering.

The theme is that the government must recognize the gravity of what it’s doing to the prisoner and respect him as a person, and that privatization is an impermissible distancing. Similarly, Ira Robbins writes, against prison privatization, that “the government should be obliged to know . . . that it is its brother’s keeper, even with all of its flaws.”And Michael Walzer writes: “It is in part because prisoners can’t form unions that we, who put them in prison, must accept responsibility for their treatment. How can we teach them their own responsibilities if we evade ours, leaving them to endure what is bound to feel like one more racket?”

I read these social meaning arguments as falling within the subjective category, which means that they’re amenable to (and can, conceivably, be disproven by) anthropological research regarding people’s actual views.

But not all the authors who take this approach are clear about whether the moral distancing is a subjective or objective matter. To the extent these views purport to be objectively based, it’s hard to see why going from one contract to another should be taken to imply moral distancing. Perhaps many past instances of contracting have in fact been motivated by a desire to not be involved anymore, or perhaps just by a desire to save money.But that desire can exist in the public sector too: I’ve already suggested the prospect of DOC directors and prison wardens who are committed to cutting costs. Moreover, many privatization theorists have advocated privatization precisely on the grounds that this will (or may) improve prison conditions, and various pro-privatization politicians have echoed these views.For them, the desire to privatize is precisely the opposite of moral distancing, at least if we take their claims at face value.

True, the Israeli Supreme Court has stated that the actor’s motivation is irrelevant given a social consensus in place, but at least the presence of contrary motivations in public discourse might make us think twice before asserting the existence of the consensus without having survey data in hand—much less striking down a statute on that basis!

Again, thanks to the commenters for participating in the discussion. Some of you may show up in my star footnote.

Again, I’ll stress: if your problem with contracting out (prison, military, or otherwise) is that you think it will work badly, will harm prisoners, will cost more money, will distort the substantive criminal law through lobbying, will reduce the effectiveness of government, won’t be seen as legitimate by citizens or inmates, etc., I concede all your points for the purposes of this paper. This isn’t a policy paper on whether privatization is a good idea; it’s purely a paper about philosophical foundations. If your argument is that privatization doesn’t work well, even if you think it will never work well because it’s unlikely that it can ever be adequately reformed, your argument may be super-strong, but it’s empirical. So comments stressing these points are unlikely to be helpful.

On the other hand, if you’re willing to engage with the hypothetical, “What if private prisons and public prisons acted in exactly the same ways, and no one actually cared about the mode of provision?”, then this paper is for you and I encourage your comments. Regardless how unrealistic you think this hypothetical is, it’s the proper way of teasing out whether objections to privatization are empirical or not (what I call “inherent,” though you’re free to suggest different terminology).

O.K., here goes with the next round of suggested arguments, which I call the “private purposes arguments.”

*     *     *

So far, we’ve seen two non-empirical arguments. The first, the argument from accountability, turned out not to be inherently about privatization at all. The second, on the other hand—the argument from moral burdens—really was about privatization as such, but it failed to adequately distinguish between public employees and private contractors, both of whom are private people who do the state’s bidding for money.

The argument from moral burdens didn’t assume anything particular about the private actor. The private actor’s moral judgment was “private” in the sense that anyone’s judgment is his own, but the argument didn’t assume that the private actor was motivated by, say, a profit-making desire. This makes sense, since the argument also covered shaming punishments, which are designed to be administered by ordinary people like you and me, with no pecuniary expectations in the matter.

But the next set of arguments, which I label “private purposes” arguments, are more specifically targeted at private corporations and their profit motive. As we’ll see, though, this line of argument, too, fails to distinguish between public employees and private contractors. To the extent that private purposes animate the latter more than the former, this is an empirical question.

A. Private Purposes and Freedom of Association

Richard Lippke suggests that private prisons may violate a prisoner’s “freedom of conscience and association, in the sense that offenders will be forced to participate, even if only as passive clients, in certain specific private enterprises.”

Obviously we’re not talking about religious prisons; Lippke assumes that no indoctrination is going on,so the problem is merely that the inmate is forced to associate with the organization. But couldn’t one say the same of the state prison? Doesn’t being assigned to any prison violate one’s freedom of conscience and association?

Lippke answers this concern:

I am almost persuaded by [this equivalence], but not quite. One could argue that rational contractors [in the social contract], concerned to protect their autonomy, will look for ways to enforce the law that least infringe their freedom of conscience and association should they run afoul of the law. Granted, public prisons may impose on them things that they object to and that restrict their freedom of association. Private prisons do this and something else besides—they force some individuals to be participants in someone else’s profit-making enterprise.

[The] contention that there are individuals who also benefit economically from public prisons is correct but not decisive. There is a difference, however slight and perhaps mostly symbolic, between being incarcerated in a facility overseen by individuals who earn a living doing so and being incarcerated in a facility where not only are there individuals earning a living by overseeing the facility, but where there are other individuals who seek to earn a profit by efficient management of that facility. The latter individuals may be ones that rational contractors would wish to limit forced association with.

Lippke draws a distinction between those who “earn a living overseeing the facility” and those who “seek to earn a profit by efficient management of that facility.” Maybe by “earn a living,” Lippke means to include public corrections officers, wardens, and Department of Corrections employees. By “seek to earn profit,” presumably he means to include the shareholders (and possibly high-level executives?) of the private firm. I suppose he means to put private corrections officers into the “earn a living” category: he characterizes private prisons as places where some people earn a living while others seek to make a profit, so presumably the corrections officers are in the first category while the shareholders are in the second. Moreover, we say colloquially that prison guards “earn a living,” since they’re paid a wage—though, since prison firms’ employees’ retirement packages often include company stock, one could also say they make a “profit” together with the other shareholders.

But this difference is illusory. Everyone who seeks to “earn a living” is also “seek[ing] to earn a profit”: no one works in a particular organization unless they expect to be at least as well off as in their next-best alternative. Indeed, no one needs to work at all unless they expect to be at least as well off as by not working. For a low enough wage, people wouldn’t bother working; at a certain wage (their so-called “reservation wage”), they’re indifferent between working and not working; above their reservation wage, they strictly prefer to work. Anyone who is paid above his reservation wage (hopefully most of us) can be said to be making a profit, just like, as financial investors, we’re making a profit whenever our money earns more than it could be earning elsewhere. Some of us seek to earn a profit by using our labor, some of us seek to earn a profit by using our previously acquired money, but we’re all seeking to earn a profit. Despite some critics’ protestations that there is a “fundamental difference” or “obvious distinction” between profiting from labor and profiting from capital, it is unclear how this distinction, fundamental and obvious though it may be, is relevant.

Of course, that we all profit from our work (or investment) doesn’t mean we’re all mercenarily minded. Investors might put their money into prison firms—or one may work as a high-level prison firm executive and buy the company’s stock—because they really care about corrections.Conversely, one might work as a (public or private) corrections officer or warden or at a private military company just because it’s a living. And as Bruce Benson points out, high-level public employees may also have:

a desire to avoid tarnishing the imagine of their bureaucracy by revealing abuses by those whom they supervise (the bureaucrats may have a variety of motives here, such as the belief that tarnishing the bureaucracy’s image will reduce their ability to pursue their vision of the public interest or will threaten their job security, support for their families, comfortable lifestyle, discretion, power, or authority).

Despite some speculation that public employees care more about their work while private contractors are more rapacious—this is an empirical question to which I don’t know the answer—the precise form that the profits take has no necessary relation to one’s attitude toward the work. (There is of course an ethic of public service that differs from the ethic of private industry. Max Weber, for instance, refers to the “genuine official” who “engage[s] in impartial ‘administration’ . . . ‘without scorn and bias.’”But Weber was speaking descriptively, and in any event the normatively relevant question is surely to what extent the differences in ethic manifest themselves in actual differences in attitude or behavior.)

Finally, in Lippke’s distinction between those who “earn a living overseeing the facility” and those who “seek to earn a profit by efficient management of that facility,” I’ve been stressing the “earn a living”/“earn a profit” distinction, but maybe we should also look into the “overseeing”/“efficient management” distinction. This, too, fails to distinguish between public and private: presumably no one’s paid to oversee the facility inefficiently. Any public corrections officer is expected to not waste prison resources, and the same goes for wardens and Department of Corrections officials.

Now there might be a significant difference between “overseeing” and “efficient management,” but only if overseeing and efficient management differ as management styles. Certainly, the choice of words suggests a hard-hearted, cost-cutting mentality that may be at odds with sound correctional policy. But if this is so, we’re back in the contested empirical territory of how public and private prisons act.

B. Private Purposes and Legitimacy

The previous argument introduced the “private purposes” strand of criticism, where the significance of the private purposes was that they vitiated freedom of association. But these arguments are much broader: public purposes also play a role in more general theories of liberal legitimacy. Thus, Michael Walzer argues that, according to liberal social contract theory, “the agents of punishment [must] be agents of the laws and of the people who make them.”What he means by “agents” here is that punishers must share the public purposes that justified the punishment to begin with.

Certainly this philosophy precludes having victims punish criminals; but Walzer also extends this theory to private prison contractors. What is wrong with the private prison, says Walzer, is that “[i]t exposes the prisoners to private or corporate purposes.” By contrast:

Police and prison guards are our representatives, whose activities we have authorized. . . . When [the policeman] puts on his uniform, he strips himself bare, so to speak, of his private opinions and motivations. Ideally, at least . . . he treats . . . all criminals in the same way, whatever his personal prejudices.

“Ideally,” perhaps. But can’t non-ideal (i.e., actual) public servants also act out of private purposes? (This approach would make the “public purposes” argument strictly empirical and comparative.) Alternatively, why doesn’t the “ideal[]” of a private prison firm include faithfully fulfilling its contractual obligations, acting in the interests of its contractual partner, and shedding its private prejudices? (This approach is non-empirical, but obliterates the theoretical distinction between employees and contractors.) If this is so, why can’t private firms, too, be “our representatives, whose activities we have authorized”?

Walzer admits as much. “[O]ur impersonal representatives turn out to be ordinary persons; they have careers, interests, feelings of their own.” But, he argues, this risk is less than when “corporate motives” are involved, because of “the professional ethic and internal safeguards of the civil service, . . . legislative oversight committees and civilian review boards, and finally . . . the courts, which uphold the law even, or especially, against the agents of the law.”Walzer stresses standard (empirical) reasons to believe the private sector will underperform: opportunistic holdup, cost-cutting, and reduced opportunities for judicial monitoring.Walzer even suggests that the private sector could have a role in prison provision—but only the nonprofit sector, since “[t]he incentive system is all wrong” in private prisons.

It seems, then, that Walzer’s philosophical point is just derivative of his empirical point: if it could be shown that public servants were pervasively self-seeking and that public-sector accountability were low, or that private-sector monitoring were extremely high-quality, private-sector professional norms extremely well developed, and legal accountability extremely effective, Walzer’s argument would have to go the other way.Moreover, as he says, his argument doesn’t apply to private nonprofits.

The Israeli Supreme Court, on the other hand, which relied exclusively on the public purposes argument in ruling that private prisons violated inmates’ liberty rights, purported to be not quite so empirical.

While the majority opinion recognized the possibility that private prisons, because of profit-making incentives, could violate human rights more often than public prisons, it didn’t rely on those, because such a mere possibility couldn’t justify invalidating private prisons before they were even implemented. Instead, it ruled that prison privatization violated the constitutional right to personal liberty by the mere fact that punishment was being administered by a profit-motivated actor.

In the Court’s view, “the question whether the party denying the liberty is acting first and foremost in order to further the public interest . . . or whether that party is mainly motivated by a private interest is a critical question.”Making inmates “subservient to a private enterprise that is motivated by economic considerations . . . is an independent violation [of the right to personal liberty] that is additional to the violation caused by the actual imprisonment under lock and key.”In fact:

the scope of the violation of a prison inmate’s constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right . . . when the entity . . . is a government authority that is not motivated by those considerations, even if the term of imprisonment . . . is identical and even if the violation of . . . human rights that actually takes place . . . is identical.

Throughout, the Court drew a strong distinction between the Israel Prison Service, which is a “bod[y] that answer[s] to” and “receives its orders from” and “is subordinate to” and “acts through” (and “by and on behalf of”) and is a “competent organ[] of” the state or the government or the executive branch (which, in turn, is “the representative of the public”), and the prison firm, which is “an interested capitalist” and “a private interest,” “a party that is motivated first and foremost by economic considerations—considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.”Justice Arbel, in a separate opinion, similarly wrote that the private firm is “an outsider that is not a party to the social contract . . . and does not necessarily seek to realize its goals”and that its “main purpose is by definition the pursuit of profit.”

But all this is merely asserted, not justified. The analysis suffers from at least two weaknesses:First, why can’t a private firm receive its orders from, be subordinate to, act through, be a competent organ of, the state? And second, given that, as I’ve argued above, any employee “profits” from his employment, why is a contractor’s profit any different? (Or, if one is willing to allow for non-pecuniary motivations among government employees, why can’t contractors have similarly noble motivations?)

The Court’s opinion does note a few tangible, non-question-begging differences between the Israel Prison Service and private firms, but these are hardly central to the argument; nor do they succeed in distinguishing public and private prisons as a philosophical matter.

First, the head of the public agency is appointed by the government. But “[m]ost public employees . . . , including police and corrections officers, are neither politically appointed nor democratically elected.” Moreover, the private prison firm is also chosen by someone in the government, and it’s not clear what difference these different choosing mechanisms make apart from the empirical question of behavior.

Second, the public agency is “subject to the laws and norms that apply to anyone who acts through the organs of the state and also to the civil service ethos in the broad sense of this term,” which “significantly reduc[es] the danger that the considerable power given to those bodies will be abused.” Perhaps Justice Arbel was getting at something similar when she alluded to the private firm’s not being “bound by the norms inherent” in the social contract, and certainly she did stress practical concerns like directness of supervision(though she didn’t rely on them).

But, as I’ve noted above,this is an argument against unaccountability, not against privatization as such; one can imagine private prisons that are subject to the norms of state actors. Moreover, that the “civil service ethos” is a stronger force against abuse in the public sector than possible competitive or other market or contractual forces in the private sector is a contested empirical question, which is in tension with the majority’s stated intention to not rest their decision on possible future violations.

Third, Justice Arbel notes that the private firm “is chosen and operates on the basis of its ability to maximize income and minimize expenditure”—not to argue that the private firm will take harmful actions, but because that very fact violates human dignity.But prison firms needn’t be chosen on a low-bid basis, and efficient management, at least in the sense of not spending more than the prison budget, is valued in the public sector as well.

Finally, Justice Procaccia at least did better in her opinion, where she justified the distinction at least in part based on public perception: the private firm “does not act as a public trustee” because “[i]ts status and actions are not based on a broad social consensus.” I discuss public perception arguments later in this Article.

C. Private Purposes and Role Responsibility

I’ve argued above that at least some private purposes arguments wrongly treat as inherent what’s in fact contingent: the extent to which private actors are motivated by private considerations. In this section, I’ll suggest another way around the empirical morass, though this workaround has problems of its own.

Regardless of their motivations, private contractors have a conflict of interest that is absent in the public sector. Public and private employees both have a duty to their employer. But in the public sector, that duty runs all the way up to The People, whereas in the private sector, the employer itself (the corporation) has conflicting duties, one to its contractual partner (the government and The People) and a fiduciary duty to its shareholders (who want their profits maximized).

One can understand the multiple-principals problem in two ways. One is purely empirical: perhaps those with multiple principals are less likely to do a good job serving the government’s purposes, because the profit-maximizing purpose gets in the way. As with all the other empirical questions discussed here, this could go either way. Given enough competitive pressure or oversight or the right contractual terms, it’s possible that private contractors will maximize profits for their shareholders by doing well for the government. At least, it’s possible that they’ll do better for the government than employees who, while they only have one duty, don’t take that duty seriously because of, say, civil service protection. Even within government, there can be different principals with different goals (one’s department head may be resisting the President’s policy). The number of principals may be greater in the private sector, and it may result in worse work for the government, but it’s something we can discuss empirically.

Or, one can understand the multiple-principals problem in a categorical way that relates to moral duties. Suppose one imagines conscientious actors who take their various institutional duties seriously, for instance as a matter of role obligation.When the contractual duty technically allows more than one action, say A and B, the profit-maximizing duty might be taken to require that the firm choose the more-profitable A over the less-profitable B. But suppose that B is better for the government’s policy—A was technically permissible only because of incompleteness in the contract. So a conscientious public employee would be required to choose B. Thus, a conscientious actor with two duties would be required to take a different action than the one with only one duty.

Of course, if B is really a better policy, then the problem is empirical: multiple principals are bad because they lead to a worse action being taken. But since this argument is trying to abstract from empirical concerns, let’s now suppose that A and B are equally good from the state’s point of view. Should one care? To care, one would need to also hold a belief that the only legitimate punishment is one that stems from no duty other than the one to the state. If one held these views, one could then argue that the problem of multiple principals is an inherent moral problem, not just a contingent, empirical one.

But this would be a funny argument against privatization.

In the first place, it only applies to companies with shareholders. Sole proprietorships, for instance, owe no duties to anyone other than their contractual partner, so there is no multiple-principals problem there.

In the second place, the objection could be easily overcome by making it clear to the shareholders—for instance by including a declaration to this effect in the mission statement—that the firm intends to act as a fiduciary for the government as well, and that the duty to maximize profits is strictly subordinate to the duty to conscientiously fulfill the contract. Government could insist on such a declaration as a condition of doing business with a provider. (Similarly, any company can choose to do something that its managers feel is “socially responsible” but non-profit-maximizing, and it won’t be violating its duty to its shareholders as long as the shareholders bought stock with this understanding.)

A number of issues have come up in the comments, which I think I should bring up into the text here. By the way, thanks to the commenters for showing me where I need to be more explicit about what I’m doing.

In the first place, is this a straw man? No: The arguments I’m presenting are actually advanced by real people in high-profile places, like the Cornell Law Review or the Israeli Supreme Court.

In the second place, what’s the point of such an argument? Surely the main arguments against prison privatization relate to how prisoners are treated. Surely the problem with prison privatization is that private prison companies have an incentive to cut costs in harmful ways. Indeed, these are the main arguments, which are of course empirical. I’m not questioning these arguments in any way here. But these aren’t inherent problems with privatization. They’re problems with the current implementation of privatization. Perhaps contracts can be written in a better way — for instance, how about paying companies inversely with recidivism or post-release employment rather than per diem? What if we invested in massively more and better monitoring? Etc., etc. We can argue about this — maybe these suggestions are kind of pie-in-the-sky — but what these empirical arguments show is that the argument is necessary. We can’t just dismiss them.

Basically, arguments against the current state of prison privatization are merely arguments for reform, not for abolition, unless you also argue that the problems you raise are unlikely to be solvable. And even if the ultimate conclusion is that prison privatization should be abolished, it will be because of a sophisticated analysis using arguments about how different types of contracts produce different actions. It’s far removed from the sort of metaphysical arguments I’m dealing with. I’ll repeat: if you oppose prison privatization for any of the “real-world” reasons I’ve mentioned above, I have no quarrel with you. In fact, I explicitly concede the validity of all these arguments for the purposes of the article (though, outside of this article, we can surely debate them).

But now, let’s go on, with the “moral burdens” argument against privatization.

*     *     *

But can we develop a theory that would ascribe significance to the private nature of the actor as such, even if legality and accountability are taken care of? One possibility would be a novel theory against privatizing the infliction of criminal sanctions, pioneered by Alon Harel, both alone and co-authoring with Ariel Porat: an “argument from moral burdens.”

This theory applies both to the delegation of punishment to independent private actors, as is the case with “shaming punishments,” and to the delegation of punishment (and other applications of force) to corporations by contract, as is the case with private probation service providers and private prisons. However—at least as applied to contracting out—the moral burdens argument turns out to be unable to adequately distinguish between public employees and private contractors.

Suppose the state (by whatever means) convicts a criminal defendant and determines his proper sentence. Now suppose the state asks me—some random person off the street—to inflict the sanction. May I do so?

Harel and Porat argue that I can’t morally inflict the sanction without making an independent judgment as to whether this convicted defendant deserves the punishment I’m about to mete out. (This is the “moral burden” that gives the argument its name.) I shouldn’t just trust the state’s judgment—“such trust could never be justified.” But once I’ve made my own decision and inflicted the punishment, the punishment has now been privately inflicted because of a private exercise of judgment; I’m morally responsible for it; it is “at least partially a private act.”It no longer counts as criminal punishment; in particular, because of social-contract considerations, “[i]t is demeaning to subject a person to the normative judgment of another citizen rather than to the normative judgment of the state.”

“To the extent that criminal sanctions for violating state-issued prohibitions are justified, they therefore have to be inflicted by the same agent who issues the prohibitions.”Or, in another formulation: “In order to count as an execution of a sanction whose nature and severity is determined by the state (rather than merely a sanction whose severity happens to converge with the state’s decision), it ought to be inflicted by public officials rather than private contractors or, more generally, by individuals who satisfy some formal requirements that affiliate them with the state.”

Harel and Porat thus draw a strong distinction between the duties of the citizen, who has to exercise his independent judgment, and those of the “official”—“[a] judge, a prison guard or even an executioner”—who, within boundaries, is “entitled to rely on the state’s judgments concerning the appropriateness of the sanctions,” and, indeed, must “perform [his] task irrespective of his private convictions” and “obey blindly . . . the orders of the state.”

All this raises the following questions. First, if the person who inflicts the punishment must be the same agent who issued the prohibition, virtually all punishment is immoral: prohibitions are issued by legislators, who aren’t the same people as prison guards and executioners. Even if we characterized the issuer of the prohibition as Congress, usually it’s not Congress that locks people up. (Indeed, American federal constitutional doctrine takes it as given that the executive branch exercises delegated power.)

So, when we say sanctions must be inflicted by the same agent that issues the prohibition, we mean it’s the government as a whole that must lock people up. But, as we’ve seen, the government can only act through agents. Harel and Porat recognize as much when they insist on “individuals who satisfy some formal requirements that affiliate them with the state.”

But then why can’t the “formal requirements that affiliate [someone] with the state” include a prison-management contract? Since public prison guards are also private individuals until they sign an employment contract, why is one contract better than another?

The next question follows directly: if public prison guards undergo a magic transformation that entitles them to suspend their personal moral judgment as to whether particular inmates deserve what they’re getting, why can’t the state work the same magic on a private prison firm and its employees? Or, conversely, perhaps all this has now established a duty of independent moral judgment for everyone, including public employees, thus making public punishment equally a “private act”?

Harel and Porat recognize this concern, and explain why public employees have no such duty of independent moral judgment. They distinguish between “justifying a practice and justifying a particular action falling under it.”One may become a public executioner if, in one’s judgment, the position “is desirable from a moral point view, i.e., it promotes the public good, and consequently, it is morally permissible to perform it.”But once one has accepted the position, one should obey any orders that are “within the scope of [the] office.” There are constraints on the public executioner’s obedience, but these are “much less restrictive than the constraints on the obedience of a private individual.”

Harel and Porat’s view that certain functions require putting one’s full independent moral judgment on hold—deferring to someone else’s judgment as long as the position itself is justifiable—is surely sound. Still unexplained, however, is why one can’t sign up for such a position as a contractor as opposed to an employee. If a public warden can legitimately accept prisoners whose crimes he hasn’t examined, and if he can legitimately hire public prison guards who can legitimately discipline prisoners whose crimes they haven’t examined, why can’t Corrections Corporation of America and its employees do the same?

Based on reading the comments to the last post, let me make one thing clear: this article is only about the non-empirical arguments against privatization. If you oppose private military companies because you think they’ll do a bad job or not be seen as legitimate or tarnish the image of the U.S. or won’t have a professional ethic or will kill more innocents than the public military, this argument is not aimed at you. If you oppose private prisons because you think they’re more expensive or mistreat prisoners or don’t rehabilitate prisoners as well or lobby for stricter criminal laws, then this argument is not aimed at you.

The only arguments I’m attacking are the non-empirical ones — that is, arguments that oppose doing the job through contractors rather than employees even if it could be shown that no one cared about it in the world and that it affected no actions. I’m going through the arguments made in the literature, and arguing that (1) the argument is actually empirical, or (2) the argument isn’t actually about privatization, or (3) the argument is wrong.

Finally, this paper shouldn’t be read as endorsing any sort of utilitarianism, consequentialism, or anything else: for purposes of the article, I concede the validity of all sorts of potentially non-consequentialist, non-instrumentalist concerns (e.g., accountability has inherent importance, those who incarcerate must be motivated by public purposes, society must engage in moral dialogue with the prisoner); I merely deny that using contractors is inherently contrary to any of these concerns.

Anyway, with that out of the way,  here’s  the next section of the paper, about accountability and legality concerns.

*     *     *

A. Accountability Concerns

I’ve already alluded to the argument that private providers are less accountable—in other words, that contracting out for prison management violates core commitments of public law.

Mostly, these concerns turn out to be instrumental: accountability is valuable because it ensures that the agent does what the principal wants and is held accountable for any failures. The political accountability that comes from elections, the legal accountability that comes from lawsuits, and the administrative accountability that comes from agency oversight—all these are justified primarily as ways of preventing or punishing abuses. And the instrumental focus implies an empirical analysis. So, right or wrong, accountability-based critiques of privatization seem to be entirely legitimate on my view.

Some accountability-based arguments purport to be tougher on privatization, though, and in fact claim to rule it out on non-instrumental, non-empirical grounds. As Malcolm Thorburn writes: “Surely the bite of these objections remains even if private contractors regularly produce good outcomes; the simple fact that they do so without having to account for their conduct, that their operations are hidden from public scrutiny, and so forth is reason enough to object.”

What’s so great about accounting for one’s conduct and being subject to public scrutiny (aside from the empirical results)? Thorburn—who’s actually discussing private police services,but his concerns apply more broadly—explains that without these elements, one can’t be said to be acting in the name of the state. “[L]egitimate policing,” after all, “is necessarily non-partisan” and “bound up with impartiality,”and only “the state, if properly constructed, can both represent us collectively . . . and yet speak for no private party in particular.” To “legitimately claim to be acting in the name of the state,” one must “meet the accountability standards set out in public law—roughly, reasonableness and fairness,” as well as “the rights protections set out in constitutional bills of rights, to which private citizens and private action are not similarly subject.”

So what makes private policing services illegitimate, in Thorburn’s view, is that—at least in the U.S. today—they’re not subject to public law norms or the Bill of Rights, and therefore aren’t acting in the name of the state, which is a necessary condition for legitimate policing. Presumably alternative accountability mechanisms, like tort liability, are insufficient.

But this critique isn’t an argument against privatization at all—it’s really just an argument against unaccountability. “Privatization” doesn’t have to mean privatization with the minimum of procedural protections under the current state of U.S. constitutional law. Conceivably, one could counter Thorburn’s objection by passing an APA- and/or FOIA-like statute to cover private providers, by increasing judicial scrutiny, or by changing constitutional doctrine so they become “state actors” for constitutional purposes. (Incidentally, private prisons already are state actors for constitutional purposes insofar as they interact with prisoners. The state action doctrine looks to actual function, not to the employee vs. contractor distinction.) To the extent accountability concerns are about individuals “having their day in court,” the statutes can guarantee that as well. Finally, contracts—with appropriately detailed provisions and adequate monitoring—can be used to extend public law values to private contractors.

It’s true that “employee” and “independent contractor” are legal terms of art distinguished, in part, by the extent of the principal’s control rights, so one could argue that employees are more accountability than contractors by definition. But this would inappropriately give too much importance to only one form of control. One can have significant de facto control over one’s contractor just by having known reasons for failing to renew the contract, possibly sometimes even more than over public employees protected by qualified immunity or by civil service rules. Where providers effectively compete with one another, market accountability can also be a powerful tool that cuts in favor of private provision, and the same could be said of legal accountability, if private providers are more amenable to lawsuits.

So the empirical argument about whether public or private providers are more accountable could go both ways. At the end of the day, given the proper safeguards, and bearing in mind the less-than-stellar record of the public sector,private provision could conceivably be more accountable than public provision.

One might still answer that contractual accountability (or other alternative sources of accountability) would never work—that private providers, because of their profit-based incentives, could never act as neutrally as government employees, even if we subjected them to every known procedural and constitutional requirement.

Ahmed White’s critique proceeds along roughly these lines. He writes that the rule of law requires the government to be a “legally and politically transparent entity with clearly demarcated boundaries,” whereas the private prison “thoroughly merges the private and the public and blurs the boundaries of the sovereign.” This blurring “expand[s]” “the coerciveness of the state” because it “conceal[s] the identity of state actors.”

While White’s critique is sometimes phrased as though it’s non-empirical, it turns out to hinge on empirical predictions—though ones he believes are fairly solid. The state “probabl[y]” reduces its civil-rights litigation expenses when it privatizes (though it’s possible that contractors would simply demand correspondingly high contract payments to cover litigation expenses). The state would “likely” be insulated from “a more symbolic, political” accountability. Less solidly: Confusion over jurisdiction (in the case of interstate prisoner transfers) and access (to records and the like) “perhaps cannot lend[] itself to any consistent resolution.” There is a “possibility” that private prison firms will manipulate disciplinary proceedings to “sustain their occupancy rates.” And so on.

White’s view is that all these results are likely and indeed “predictable,” and that there are “inherent, structural reasons to suppose that private prisons will always, on the whole, remain more dysfunctional and indeed more socially malignant than public prisons.”But the important point here is that he doesn’t deny that “aggressive courts, competent legislatures, and zealous reform theoretically could resolve” these problems (even if they probably won’t).

The accountability critique thus isn’t an inherent critique of privatization: instead, it’s a critique of unaccountability, sometimes coupled with an empirical prediction that abuses are more likely under privatization.

B. Specific Legal Prohibitions

Let’s move on to arguments that privatization violates specific legal provisions. These, too, aren’t about privatization as such. Many of these legal provisions actually don’t distinguish between public and private providers; as for those that do, one can of course favor following the law for non-instrumental reasons, but such a procedural concern for legality doesn’t support the substance of the law and thus doesn’t provide any argument against changing the law.

One could argue, for instance, that prison privatization violates the Due Process Clause because government can’t “delegate discretionary functions to private entities with a financial stake in the way such discretion would be applied.” But the Due Process Clause itself says nothing about privatization as such. One of the classic cases in this line of doctrine, Tumey v. Ohio, involved not a private contractor at all, but rather a clearly public village mayor/judge who, the Court held, would be unduly swayed to convict defendants because his salary was increased by the amount of the “costs” paid by convicted (but not acquitted) defendants.

Public actors, just like private ones, can have their judgment affected by their pecuniary self-interest, but this is an argument for neutral compensation rules, not against privatization. As a result, if Due Process doctrine ends up applying with special force to private parties—sometimes it does and sometimes it doesn’t—it’s because of an empirical prediction that how they exercise their discretion, given how they’re compensated, will more often tend to affect their bottom line and that this will more often skew their judgment.

One could also argue that prison privatization violates the nondelegation doctrine. But again, the Nondelegation Clause says nothing about privatization as such—there isn’t even a Nondelegation Clause in the Constitution. The doctrine itself derives from the Article I Vesting Clause, which vests all legislative power in Congress and therefore (so the Supreme Court has said) prevents any delegation of such power.But because the focus is on how much power Congress gives up, it’s not clear why it should matter whether the recipient of the delegation is public or private, and indeed, the federal nondelegation doctrine doesn’t distinguish between public and private delegations. (The same goes for the more limited area of delegations of power to make regulations respecting federal property under the Property Clause.) And the doctrine’s requirement that any delegation be accompanied by an “intelligible principle”is motivated by various empirical concerns, including the (debatable) fear that an over-delegating Congress will legislate irresponsibly and that the recipients of broadly delegated power will act unaccountably.

Some states take a stronger view against delegations to private parties, but even then, the concern (when clearly stated) is often empirical. According to the Texas Supreme Court, for instance, private delegations are more problematic than public delegations because of possible “personal or pecuniary interest[s]” and because of the possibility of “public powers [being] abandoned to those who are neither elected by the people, appointed by a public official or entity, nor employed by the government.” The ultimate rule for judging private delegations in Texas depends on explicitly empirical factors like whether the delegate’s actions are “subject to meaningful review,” whether affected persons are “adequately represented in the decisionmaking process,” whether the Legislature has “provided sufficient standards,” and the like.

Accordingly, commentators have discussed delegation to private prisons in terms of explicitly empirical criteria, such as the possibility that the profit motive will bias disciplinary decisionsor grant too much discretion to act arbitrarily.

Similar empirical concerns can be seen to animate other constitutional arguments,for instance under the Take Care Clause or the Appointments Clause.

But even suppose the law is frankly unsympathetic to privatization. Perhaps there is some legal provision that bars private ownership or operation as such, like the prohibition in the Federal Activities Inventory Reform Act of 1998 against contracting out of any “inherently governmental function”—defined as “a function that is so intimately related to the public interest as to require performance by Federal Government employees.”This definition obviously isn’t a model of clarity, but suppose it can be fairly interpreted to bar private federal prisons.

One can certainly believe that—regardless of why the legal provision was enacted or whether it’s a good idea now—compliance with the law is desirable, and not just because compliance is instrumentally useful. I’m glad to concede for purposes of this Article that compliance with the law may have non-instrumental value and that empirics thus aren’t relevant; but again, the argument isn’t about privatization as such. A legality-based argument of this sort obviously doesn’t say anything about whether the law at issue is a good idea, and therefore it doesn’t provide us with any arguments against repealing the law.

Critics of private prisons often argue that privatization is inappropriate because of inherent differences between the public and private sectors. There are, of course, plenty of arguments that focus on empirical issues—on the one hand, “mere accounting” concerns like whether private prisons are cheaper; on the other, larger questions like whether private prisons mistreat their inmates. But the “inherent” critics use a different sort of discourse, one that supposedly transcends contingent, empirical claims, instead staking out a position based on high-level political or moral theory, the purposes of criminal punishment, liberal legitimacy, liberty and dignity, symbolism and social meaning.

Thus, criminologist John DiIulio has written:

[T]o remain legitimate and morally significant, the authority to govern behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. . . . The badge of the arresting policeman, the robes of the judge, and the state patch on the uniform of the corrections officer are symbols of the inherently public nature of crime and punishment.

These concerns are echoed in the law as well. In 2009, the Israeli Supreme Court ruled that prison privatization violates “the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise.”

Alon Harel and Ariel Porat argue in a recent Cornell Law Review article:

[C]ertain tasks[, particularly tasks involving the infliction of violence, such as criminal sanctions,] . . . must be performed by public officials not because public officials are better at performing them (or can perform them more cheaply) but because the identity of the agent who performs these tasks is considered to have an intrinsic value. . . . [T]his view is grounded in foundational intuitions concerning political legitimacy.

And Mary Sigler has similarly recently argued that private prisons implicate “the nature and justification of punishment in a liberal democratic polity”:

Punishment under law is a profound exercise of state power the meaning and justification of which depend on the social and political institutions that authorize it. In a liberal state . . . punishment is inflicted for public wrongs in the name of the people. . . . The delegation of punishment through prison privatization attenuates the meaning of punishment in a liberal state and undermines the institution of criminal justice.

These aren’t just throwaway paragraphs in otherwise empirical pieces. Sigler’s and Harel and Porat’s arguments avoid empirics entirely. And the Israeli Supreme Court, in invalidating private prisons, declined to consider their real-world functioning—in fact, explicitly assuming that, as between public and private prisons, “the term of imprisonment . . . is identical and . . . the violation of . . . human rights that actually takes place . . . is identical.”

The Israeli Supreme Court’s assumption suggests a simple hypothetical implicit in many of these arguments. Even if switching from public to private provision didn’t change any actions in the world, and even if nobody cared whether provision is public or private—so these arguments imply—privatization would still be illegitimate.

I believe that this line of attack is generally unsound. For purposes of this Article, I don’t deny that, as a matter of political theory, only the state should punish. But the argument that the provision of all these services must therefore be undertaken by public actors—by state employees rather than by private contractors—misunderstands what it means for the state to act.

“The state” isn’t the president or governor; it’s not a legislator, or the set of all legislators, or even the set of all government employees. It’s a network of relationships among people. An important network, a real network, a network whose workings perhaps lead to politically legitimate decisions—but still just a network, independent of, and not identified with, any person. Like friendship or parenthood or the corporation, it’s abstract.

And yet, to treat prisoners well, badly, or any way at all, one needs a body: fingers and hands to grab people and pull triggers and press buttons; perhaps feet, eyes, a brain. A state needs a corporeal manifestation to do anything in the world.

Fortunately, there are plenty of potentially available bodies—300 million at home and 7 billion if we cast a wider net, to say nothing of K-9 police dogs. It turns out, though, that—given the assumptions of modern liberal society—all of these come from the private sector. We’re born in the private sector, and we don’t work for the government or pursue its goals by default. The government can convince us to work for it by appealing to our sense of duty, by forcing us, or by paying us money. Modern liberal societies generally prefer voluntary service to compulsory service, and duty can only go so far, so people who do things for the government are generally paid to do so.

In short, government can only “act” by turning to people outside of government. It doesn’t just need agents—it has no physical existence without them. And these agents, by and large, are attached to it by means of market transactions. Sometimes these transactions are called “employment contracts,” and the agents become “employees”; sometimes the process is called “contracting out,” and the agents become “contractors.”

Is there any reason for us to distinguish between employees and contractors? Yes, there is. As long as you can’t specify in complete detail what your agents should do, as long as you can’t monitor everything they do, and as long as enforceability is imperfect, your agents will have some freedom to serve their own agenda at the expense of your own, whether that agenda involves being lazy or being overzealous or cutting corners. Different types of contracts—for instance, flat per-year salary vs. flat per-prisoner-day compensation, civil-service employment vs. hiring by auction—lead to different incentives; and different incentives induce different actions.

Thus, one can argue (rightly or wrongly) that private prisons cost no less, provide worse-quality confinement, and are less accountable than public ones. One can argue that private prison firms might lobby for stricter criminal justice policies or act to prevent their inmates’ early release or that they might use campaign contributions or other illegitimate means to obtain contracts. One can complain that private prison construction can be used to circumvent the requirement that voters approve bond issues, or that privatization will represent a shift away from union wages and civil-service privileges. One can even argue against prison privatization on the ground that it’s too efficient—so efficient that it (undesirably) results in more incarceration. (Similar themes run through the entire literature on privatization: critics argue that privatization is economically inefficient; it worsens distributional inequalities in society; it leads to the underprovision of public goods; it reduces accountability; it increases violations of human rights; it distorts the results of the democratic process; it is plagued with market failures.)

These anti-privatization arguments may be right or wrong. But they all have a few things in common. They’re contingent, not inherent. They’re based on the real-world consequences of different modes of contracting, rather than assigning any inherent importance to the employee/contractor distinction per se. These consequences could be monetary, or they could relate to the protection of human rights, or they could be based on nothing more than some people’s subjective dislike of privatization. But they all focus on how privatization affects people or things in the real world. And they’re all susceptible to empirical data, or even to theoretically well-informed speculation on how we expect people to act in different institutional settings.

It’s therefore not surprising to find that many of these arguments are deeply contested, because they depend on messy data and contingent facts. For instance, before the Israeli Supreme Court, privatization opponents pressed the argument that the private prison legislation should be struck down because human rights violations would be more severe in private prisons. But the Israeli Supreme Court, in rejecting that line of attack, wrote that, while these concerns were “not unfounded,” there was “no certainty that this [would] occur” and that “the comparative figures [were] not unambiguous.” Similarly, an analysis of the empirical literature on prison privatization by Douglas McDonald and his co-authors—one that was not at all positive about private prisons—concluded, fairly mildly, that there was no strong evidence that private prisons performed better than public ones and, more generally, that the quality of existing studies is generally insufficient to draw strong conclusions about comparative prison quality.

These arguments are messy, because they depend on facts about the world that could go one way or another; one’s conclusions are always tentative and subject to revision when the next study comes out. But these are the sorts of messy arguments we should be having, rather than arguments that attach dispositive importance to labels like “the state” and “the private sector.”

Both in-house provision (that is, by employees) and contracted-out provision can be said to be “the state acting,” since both employees and contractors are committing to do what the state tells them to do (subject to a contractual relationship of some sort). Or both can be said to be “private parties acting,” since both employees and contractors are private people who potentially have their own agendas and often have the discretion to act contrary to the wishes of their principal. But, whether one favors or opposes privatization, what we can’t say is that one of them is the state and the other is a private party.

Of course this is completely false, and reflects a misunderstanding of what descriptivism is. Usage is a harsh mistress! There was a post on Language Log once (I think, though I can’t find it now) that expressed it well. Roughly, it went like this: In some communities of English speakers, people say “The team is winning.” In other communities of English speakers, people say “The team are winning.” In still others, people say “The team be winning” or “The team winning.” But there are no communities of English speakers (to my knowledge) where people say “The team am winning.” Of course I might be wrong. But if I’m right, all those previous expressions would be correct to use if you’re in the appropriate group, and “The team am winning” is (almost) never correct to use.

Thus, the descriptivist has plenty of grounds to correct people. Most language “rules” also correspond to everyday usage. In those cases, the prescriptivist and descriptivist agree with each other. The arguments happen when “rules” (as stated by whomever) diverge from usage. But that’s a minority of cases. The descriptivist and prescriptivist are equally willing to correct people’s English (if they feel they’re in a position where correcting is appropriate, like, say, English teacher); they each recognize a standard of correctness that can be (and often is) violated; just their standards differ.

O.K., but back to my original goal, which was to repost something from 2007, where I explained why I don’t even like these terms “descriptivism” and “prescriptivism”. Here goes:

—–

This whole series of posts just underscores why I don’t like the words “descriptivism” and “prescriptivism.” When one says one’s a descriptivist, this immediately makes people think one doesn’t want to prescribe. This is of course completely false, and I would have thought that my posts (and Eugene’s) would have put that idea to rest. But no, this misconception dies hard.

Am I a descriptivist? Yes! Because I think usage is the ultimate guide to what English means. I’d think that even self-described “prescriptivists” would say the same thing if, as anthropologists, they encountered a new tribe in the Amazon and tried to describe their language. To know what the language means, you have to observe its practitioners and see what rules they themselves follow in speech.

Am I a prescriptivist? Yes! I’ve been an editor of a journal in the past (and so has Eugene), and I still act as editor when I read friends’ drafts and my students’ work. When I write an article, I send it to Eugene, who tells me how I should rewrite it. Heck, Eugene has even written a book called Academic Legal Writing, in which he gives the reader expressions to avoid!

And it’s clear why we’re interested in prescribing usage: In my case, my only rule is to speak in ways that make you best able to accomplish your goals. Since my goals are usually communicative, I believe in speaking in ways that are clear and comprehensible to my target audience. (And since my target audience often changes, the content of “clear and comprehensible” also changes.) Anyone’s “rules” are only valuable to me insofar as they serve my goal. But once I’ve stated a goal, for instance effective communication with and persuasion of legal academics, there is probably an objectively best way to pursue that goal.

Therefore, to the extent a particular phrase makes my thought unclear, marks me as uneducated and therefore reduces my credibility with my readers, or something else along those lines, then using that phrase is a mistake — because it’s a less effective way of pursuing my goal. (When people correct language mistakes in my posts, most of the time I myself would agree that it’s a mistake!) The best way to pursue my goal might even be formalizable by means of rules — and most of these rules are indeed the ones we learned from our 7th-grade English teachers — but there’s no necessary relation between the one and the other, and of course, in case of conflict, it’s the English teacher’s rules that should go out the window.

So the notion that I don’t think there are better and worse ways of speaking — that I wouldn’t teach my kids how to talk and how not to talk — is silly. The difference between self-described “prescriptivists” and “descriptivists” isn’t that the first gang prescribes while the second gang describes. When I say that my students are speaking or writing incorrectly, I mean that they’re expressing themselves in ways that I don’t think are likely to achieve what I think their goal might be (and of course I have to explain why the words they use are ineffective). And when I choose how to speak, I likewise choose the words that I think are most likely to achieve my goal.

This “functional prescriptivism” business is a difficult exercise, and miles away from the “anything goes” that some people use as their caricature of descriptivism.

Law was an important part of medieval culture, just as in modern culture. High and low people alike regularly attended some court or other -- serfs attended their lord's court while barons attended the royal court -- and rates of litigation (for instance in medieval England) were surprisingly high (by modern standards). Feudalism, an important medieval institution, was largely (though not exclusively) a set of legal rules, and disputes over the overlapping jurisdictions of secular and ecclesiastical courts played a large role in the evolution of church-state relations. The legal system shaped medieval society just as it was shaped by it. The historian of medieval law must study social, economic, and cultural history, but the historian of medieval society, economy, and culture must also study the law.

This panel, therefore, will explore the intersection among law, economics, and culture in the context of the evolution of medieval European law.

This session is part of a series of panels under the general title of "Law as Culture in the Middle Ages" that ran first from 1994 to 2003, and was revived in 2010. The Anglo-American Selden Society has stood sponsor for much of this time. The series has succeeded in bringing together literary scholars, lawyers and historians in the special atmosphere of Kalamazoo and to their mutual benefit, to consider the contributions, good and bad, which Law made to the culture of the Middle Ages. Papers have been presented by scholars of the two learned laws (canon and Roman), of secular laws (especially the Anglo-American Common Law), and of vernacular literatures (especially Old French, Old and Middle English). They have drawn enthusiastic audiences that have filled and on occasion overflowed from the rooms allotted them. We have been able to offer a hearing to young scholars alongside some very well known ones.]

For this panel, I welcome any papers on medieval legal history.

English legal history is welcome; so is Continental legal history, canon law, or any other tradition practiced in the medieval West, e.g. Jewish or Islamic law.

The concept of “medieval” at Kalamazoo tends to be fairly broad, so you often find papers dealing with late Antiquity on one end, and the Renaissance on the other.

Especially, as the title “Law as Culture” hints, papers are encouraged that draw connections between law and other fields, especially in the humanities or economics (though doctrinal legal papers are also fine).

Those who are interested should send me an abstract at volokh at post dot harvard dot edu by September 15, 2011.

Nominabamini a Romney

meaning “y’all were being nominated by Romney”, which you can expand into:

“Nominabamini a Romney”, dixi eligenti Pawlenty

meaning “‘Y’all were nominating being nominated by Romney’, I said to the person electing Pawlenty.”

But my friend Chris Monsour suggests that, in Greek (which I don’t know), you can say:

μὴ πάλιν ἡ Πάλιν

meaning, roughly (if you take the adverb as implying a verb of motion, and take the proper name as indeclinable): “never again this Palin woman”.

UPDATE: A Hebrew-speaking friend of mine says that the word כן, which is pronounced “keyn” and therefore sounds like (Herman) Cain, means “Yes!” Note, though, that in Yiddish, “keyn Cain” would mean “No Cain”. If all this is correct, Hebrew and Yiddish speakers can make opposing signs for their political rallies.

UPDATE: This is what I get for carrying this around in my head for a long time and then typing it without thinking. What I meant was: either “Nominabamini, Romney”, meaning “Y’all were being nominated, Romney!” (I know the verb is plural and Romney is singular, but note that we here in the South also use “y’all” for the singular, which is why we invented “all y’all” for the plural); or, “Nominabamini a Romney” (Romney is indeclinable, so the ablative is unchanged), meaning “Y’all were being nominated by Romney.”

Also, note “eligenti Pawlenty” means “to the person electing Pawlenty”.

UPDATE 2: Commenter Byung Kyu Park suggests “Romnius” to Latinize the name. Now normally I wouldn’t want to do this, because the whole point of the exercise here is that “nominabamini” rhymes (more or less) with “Romney”. But hey, if we put in “Romnius”, then for the first option above, we’d put it in the vocative and get “Romni”, which comes out to the same thing.

UPDATE 3: Several real Southerners (unlike me, who have merely lived in Atlanta for two years) point out that “y’all” isn’t really used in the singular. I’ll point out that whether it does is controversial; but in any case, my statement didn’t derive from any actual Southern expertise; it was just my attempt to rationalize the otherwise nonsensical “Nominabamini, Romney”. If that fails, we have to go with “Nominabamini a Romney”, “Y’all were being nominated by Romney”, where the preposition “a” in the middle unfortunately breaks up the rhythm.

Johnson has now been excluded from the New Hampshire debate; here’s the text of the letter to CNN from Johnson advisor Ron Nielson:

Having heard nothing to the contrary from you, the debate sponsors, we assume the decision not to invite Governor Johnson was based upon your “objective” polling criteria. Certainly, you have to apply criteria. We get that. However, the idea that inclusion – or exclusion – from a critical debate in a critical state will be based entirely upon polling arithmetic, seven months before a single vote is cast, is not only absurd, but counter-intuitive to the very purpose of a debate.

At this point in the process, a candidate’s ranking in the polls is almost entirely a factor of name identification, news coverage by outlets such as yours, money, and/or previous exposure on the national level – including that gained from previous unsuccessful campaigns. In short, relying solely on polling numbers at this stage simply grants an enormous advantage to “establishment” candidates – and excludes a successful two-term governor whose express purpose in running is to give Americans an alternative to business as usual, and who actually has a track record to back it up.

Given that poll rankings at this point are largely the result of decisions by the elite media, such as CNN, about who and what to cover – and to whom to give precious air time, it is more than a little ironic when those same media use those poll numbers to deem certain candidates deserving and others not. That irony is not lost on Republican primary voters who most assuredly do not want media elites pre-selecting their candidates for them.

Consider: In early 1991, then-Governor Bill Clinton was in 11th place in presidential primary polling with 2%. By November of 1991, he was only at 6%, a fact which led one commentator to later observe: “If the front runners in the 1992 Democratic primary had been successful in excluding all the “non-serious” candidates, Bill and Hillary Clinton would have never made it to the national stage.” The “frontrunners” in 1991, by the way, were Mario Cuomo and Jerry Brown.

And there is this excerpt from a memorandum sent to supporters by the Mitt Romney campaign in 2007: “Carter, Dukakis, and Clinton were all governors of small states who began their campaigns with low national exposure and went on to win their party’s nomination. At this point in 1975, Carter was polling at 1%; in 1987, Dukakis was polling at 1%; in 1991, Clinton was at 2%.”

In short, applying your criteria, the ultimate nominees in several modern elections would likely not have been invited to a CNN debate. And in each case, they were Governors of relatively small states who simply had not enjoyed the advantage of the national media’s attention – a rather precise description of Governor Johnson. The polls were not predictive then, and they are not now.

The fundamental unfairness of relying solely on polling criteria aside, there are obvious problems with the polling criteria themselves. Even the most extensive and professional political polls carry margins of error from 3-5%. When reporting polls in which candidates are separated by margins within that range, the news media invariably points out that those candidates are essentially tied or the race is “too close to call”. While we have not seen your precise calculations, based on the polls we have seen, we have to assume that the “margin” between Governor Johnson and some of those who were invited to the debate were equally “too close to call”. Yet you made a call – and decided to exclude Governor Johnson.

Adding to the mystery of your arithmetic is the simple fact that Governor Johnson was not even included in much of CNN’s own polling during the month of April – one of the time periods you used to determine eligibility. It is hardly surprising that a candidate would not fare well in a poll in which he was not included.

Debates play an important role in the American political process. They uniquely provide an opportunity for voters to hear, see, contrast and compare candidates – on a level playing field uncluttered by funding, name I.D., past notoriety and public relations machines. Rather, they are about credentials, ideas, philosophies and policies.

By those measures, a two-term Republican governor from a Democrat state — who turned a deficit into a surplus, vetoed 750 bills, and successfully governed from a philosophy many, many Republicans are today seeking – deserves a chance to participate in the June 13 debate. Early and largely irrelevant polling arithmetic certainly should not trump the obvious: Gary Johnson has a record, a resume and the proven accomplishments to merit inclusion among any serious gathering of Republican candidates for president.

We respectfully ask that the decision to exclude Governor Johnson be revisited, and that the American people be given an opportunity to hear a voice on June 13 that otherwise will not be heard.

For more on the Johnson exclusion, see Conor Friedersdorf’s article from The Atlantic.

UPDATE: Petition here. Also, Gary Johnson gives details about how to contact people.

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).

In this post, I speculate on the politics of prison vouchers and conclude.

* * *

The Politics of Prison Vouchers

I have already discussed how, to the extent prison vouchers improve prisons from prisoners’ perspective, the current political dynamic may be completely reversed. Government will actually have to intervene to keep prisons from becoming too “good” (from the prisoners’ perspective).

This may be all the more important in the prison context than in the school context: there seems to be more hope to reform schools politically, without using choice, because at least society at large empathizes with students in failing schools (or at least claims to), whereas prisoners are generally despised, tend to come from communities without a lot of political power, and are themselves (at least felons) often disenfranchised.

This proposal, of course, is subject to the same critique as all reform proposals that propose to remedy a politically insoluble problem. If the problem is politically insoluble, there are presumably political constituencies opposed to remedying the problem. If so, why should this reform, even if it’s perfect, ever be adopted? Section A discusses how prison vouchers could be adopted; Section B speculates on the political fate of vouchers after they are adopted.

An Adoption Coalition

The foregoing discussion gives us clues as to how a prison voucher proposal could succeed politically, or at least how the support for a prison voucher proposal would be different from the support for an arbitrary prison-conditions reform, such that the political infeasibility of the latter need not imply the political infeasibility of the former.

The “cultural cognition” literature suggests how constituencies can be mobilized by a clever packaging of reforms that convinces different groups that their concerns are being taken into account. For instance, Dan Kahan and his co-authors have argued that conservatives during the George H.W. Bush Administration were convinced to support the Clean Air Act Amendments of 1990 because environmental improvements were packaged with an emissions permit trading scheme. Similarly, when nuclear power is packaged as a way to reduce reliance on fossil fuels responsible for global warming, not only do environmentalists become more likely to support nuclear power, but also people who are not generally sympathetic to environmental concerns can become more likely to support action to address global warming.

A similar dynamic could occur with prison vouchers. The left wouldn’t be inclined to support vouchers, but this could change if the program is packaged as a good way to improve prison conditions. Economic conservatives might not be highly interested in improving prison conditions, but they might warm to the idea of vouchers being tested in a new field, both because this would allow greater operation of market forces and because a success of vouchers in prisons may strengthen the case for vouchers in other areas, like education. And while some social conservatives care about prison conditions, and some social conservatives care about vouchers, a leading motivation for social conservatives to support prison vouchers could be that such a program would be the best way for faith-based prisons to operate constitutionally. (A left-right prison-reform coalition isn’t unheard of: it was a bipartisan coalition that enacted RLUIPA, based on reports of the heavy-handed treatment of prisoners’ religious claims.)

And this scenario is possible even if we don’t accept “cultural cognition” theory. Cass Sunstein has disputed Dan Kahan’s account of the Clean Air Act, arguing that conservatives supported emissions trading because the Bush White House was under pressure to pass air quality legislation and emissions trading was the cheapest way to do it. Similarly, there needn’t be anything cultural about voucher support: The left and different wings of the right can support prison vouchers for rational reasons, if they’re convinced that vouchers can improve prison conditions by harnessing market forces and allow for the constitutional operation of faith-based prisons.

This sort of coalition gives an explanation of how vouchers could be enacted—with all the possible beneficial effects for prisoners—even though there isn’t enough of a political constituency to improve prisoner welfare by more direct means. The entire coalition needn’t be motivated by prisoner well-being. And once vouchers are enacted, one no longer needs to “urge” legislators or administrators to act contrary to their political self-interest; rather, the changes happen automatically, through market mechanisms.

Post-Adoption Coalitions and Politics

But if there really is a fundamental (retributivism- or deterrence-minded) constituency opposed to good prison conditions, it won’t stay bottled up. Even if the pro-voucher constituency remains intact, so that vouchers, once adopted, aren’t repealed, we can still expect that the operation of the voucher scheme will be responsive to popular politics.

First, there’s the question of how generously the vouchers are funded. As noted above, school vouchers are generally far below the per-pupil cost of public schools, and it’s unclear how generously prison vouchers would be funded initially. If vouchers indeed improve prison conditions, what would rational voters do?

Most likely, they would decrease funding—when prison spending is more productive, one can take some of the resulting savings and apply it to other social goals, like welfare, education, the military, or tax reduction. Economic conservatives may accept funding decreases to pay for “more worthy causes.” Religious conservatives may accept funding decreases as long as they don’t threaten the viability of faith-based prisons—which may already be cheaper to the extent they’re subsidized by local churches. Retributivism- and deterrence-minded voters who want prison conditions to be bad, though they may not have been part of the coalition that enacted vouchers, will join the coalition to defund them. (Politically, this may manifest itself by retributivist voters’ outrage at certain amenities chosen and enjoyed by inmates.)

These funding decreases will reduce the ultimate extent of the improvement. In the extreme case, perhaps funding will fall so as to keep prisoner welfare constant; all the benefits will thus accrue to the taxpayers, none to the prisoners themselves. This extreme case seems especially likely if prisoner welfare helps no one but prisoners. But perhaps, given that prisoner welfare does have some positive (rehabilitative) spillovers for the rest of society, prisoners may reap at least some part of the gains. (Perhaps society, even retributivists, wanted better prison conditions before, but was unable to implement them because of resource constraints. An improvement in prison productivity would relax those constraints and allow lower levels of prison rape and better medical care.)

But this is all highly speculative. The main point is that the level of funding is endogenous, so defenses of vouchers that rely on a prediction of quality improvements for a given level of funding may be mistaken.

So far, I’ve assumed that the only political avenue open after vouchers is fine-tuning the level of funding. But there are other, regulatory alternatives, which may be more attractive to deterrence- and retributivism-minded voters.

I’ve mentioned above that there’s a continuing role for regulation to prevent prisoners from choosing amenities that are positively harmful, or even amenities that are neutral but dilute the deterrent value of prison. One sensible way of implementing such regulation would be to have an agency—possibly the Department of Corrections or some independent agency —oversee prison offerings and prevent certain amenities from being offered or advertised. There’s probably an overlap between amenities that efficiency-minded voters prefer (where the rehabilitative value outweighs the decrease in deterrence value) and those that retributivist voters prefer (where the amenity is consistent with the moral purposes of punishment). If such a system works, then both deterrence-minded and retributivism-minded voters should have more confidence that, to the extent prisoner welfare increases, it does so in a way that is acceptable. It will therefore not be necessary for retributivists to reduce voucher funding so much as to wipe out all the benefits.

One final point about political dynamics. In other work, I’ve considered the argument that prison privatization increases pro-incarceration political advocacy, on the theory that private prisons, unlike public prisons, benefit from having more bodies and keeping them longer. I’ve argued that this is unlikely: public corrections officers’ unions are already major pro-incarceration lobbyists, and introducing more private prisons could decrease the total amount of political advocacy, since any benefits from lobbying for increased incarceration would have to be shared with the rest of the prison sector.

This conclusion rested critically on the assumption that “targeted” lobbying is difficult—that it is hard for a private prison firm (or for the public corrections officers’ union) to lobby for an increase in incarceration that would benefit it exclusively. If, hypothetically, a single private prison firm (or the whole private-prison industry acting as a bloc) operated all minimum-security prisons while public prisons operated all maximum-security prisons, the private firm would get all the benefit of its lobbying if it advocated a particular pro-incarceration measure that only affected minimum-security prisoners—say increased penalties for white-collar crime. But I considered that possibility to be fairly remote in today’s world, where private firms operate the same range of facilities as the public sector.

However, in a world of vouchers, we might see more and more specialized prisons catering to identifiable niches of prisoners. In such a world, the possibility that private firms might lobby in favor of incarceration might re-emerge as a realistic possibility. Depending on one’s view of self-interested, pro-incarceration lobbying, this possibility might affect one’s view of the desirability of vouchers.

Conclusion

Throughout this Article, I have been taking ideas developed in the education context and applying them to prisons. It’s worth thinking whether prison vouchers can now tell us anything interesting about education.

In today’s political environment, school-voucher proponents and partisans of private education are identified with the right, including the socially conservative right (it helps that most private schools are religious), while the status quo of public schools is identified with the left (though of course the left contains many who favor reforming public education from within). Moreover, reinforcing this dynamic, vouchers are associated with economic arguments, which also (today) tend to be associated with the free-market right.

However, the political valence of prisons is reversed. Prison reformers are usually associated with the left (though privatization proponents, who are usually on the right, do argue that privatization would improve prison quality). The status quo, that is, opposition to prison reform, is associated with the law-and-order right.

Suppose it is true that prison vouchers would improve the well-being of prisoners, particularly as regards prisoner health-care and freedom from assault, sexual and otherwise—short-circuiting the unsympathetic political and judicial processes. And suppose that the negatives I’ve discussed above aren’t too serious, so that vouchers end up actually being a good idea. If so, from a prison-reform perspective, vouchers would have worked a humanitarian miracle. Might the left then reconsider its opposition to vouchers in general . . . including as a tool of school reform?

Perhaps it’s fanciful to think that people would change their minds entirely. After all, education and prisons are different areas, with different policy concerns. It could be that what works in prison reform wouldn’t work in education. But at least, if some people had been opposed to the very idea of vouchers, perhaps on expressive grounds related to a distrust of market-based arguments generally, their opposition could change from a general opposition to vouchers to a specific opposition to school vouchers only. Their opposition might become more sensitive to empirical argument specifically geared toward the school context.

Let’s consider the same issue from the other side. People on the right who are unsympathetic to prisoners may oppose the idea of prison vouchers as giving unwarranted decisionmaking authority to prisoners. Perhaps depriving prisoners of decisionmaking authority is another form of punishment, which one might support on retributivist grounds. Or perhaps this opposition comes from the disconnect between prisoners’ and non-prisoners’ preferences: after all, the social good is not merely composed of the good of prisoners, it’s also composed of the good of victims and people in society as a whole.

But this last point is exactly the argument that the anti-school-voucher left has been making: Where some on the right have treated parent choice as an end in itself, more communitarian arguments have stressed the interests of the children left behind, the “true” interests of children (such as racial balance) that they and their parents may not adequately value, the presence of anti-social values among certain parents, and the interests of society as a whole. Perhaps making the argument against prison vouchers on communitarian grounds would make the pro-school-voucher right better appreciate the communitarian arguments in education.

Let’s move on to the constitutional side. I’ve noted that under a voucher system, the government should have a duty to guarantee a constitutionally compliant spot for those who want one. “Constitutional compliance” means just secularity for Establishment Clause analysis, but for unconstitutional conditions analysis it means observing all the usual constitutional rights, and not offering any “deals” that would be considered impermissible under current doctrine.

So far, this issue rarely, if ever, comes up for schools. Students almost always have the option of going to public school, which, because it’s government-run, is already compliant. But imagine a voucherized world where education is still compulsory but government no longer provides it (or even a non-voucherized world where the government just assigns students to a private school).

It seems that, in such a world, there should be a similar requirement for the government to provide a compliant school experience to any student who wants one, either by running a public school of last resort or by contracting with a private school to provide constitutional rights. This requirement should exist as long as education is compulsory; the government could relieve itself of this duty simply by making education non-compulsory (not an option for prisons, of course).

This seems like it should be the rule, but I doubt that current state action doctrine can get us there. Private schools aren’t state actors on an “inherent public function” theory, nor does the government’s requirement that children attend some school convert every school into a state actor. But the analysis here suggests a possible change to state action doctrine as it relates to education: with respect to their status as custodians of schoolchildren subject to compulsory education, schools should be considered state actors, though they should have enhanced ability to negotiate the waiver of students’ rights in exchange for other benefits as long as a constitutionally compliant alternative is available. The intuitive reason is the same as for prisons—prisons and schools are similar in that, as long as education is compulsory, people are forced to be there.

Even now, the educational system contains both “compulsory” and “voluntary” students, depending on whether they’re above the statutory compulsory education age. A private school, in a fully voucherized world without public schools, might then have some students with whom it must observe due process (based on a constitutional-school-of-last-resort contract with the government), and others students with whom it needn’t.

* * *

Some advocates of vouchers have been extremely optimistic about the ability of vouchers to improve quality of service. The promise of school vouchers, for instance, was to remove education reform from the hands of unresponsive democratic majorities, obstructionist teachers’ unions, and an unsympathetic legal system. As early voucher advocates John Chubb and Terry Moe put it: “Without being too literal about it, we think reformers would do well to entertain the notion that choice is a panacea. . . . It has the capacity all by itself to bring about the kind of transformation that, for years, reformers have been seeking to engineer in myriad other ways.”

I don’t make any such strong claims about prison vouchers. I do believe that prison vouchers, if enacted, could radically change how prisons work; the question is whether it would be for the better. I believe the constitutional effects—making faith-based prisons constitutional and loosening up the unconstitutional conditions doctrine—would probably be positive. But the effects on prison quality are a lot less clear.

The social positives include improvements in the desirable aspects of prisoner welfare, like lower rates of prison rape and better prison medical care, together with the benefits that this would yield for society at large, like greater rehabilitation and thus lower crime rates, less spread of communicable disease, and the like. All of these have been extremely difficult to attain in the current political climate, relying on pro-prisoner legislation, administrative action, or judicial decisions. These benefits are probably substantial.

The negatives include reductions in deterrence from higher prison quality or improvements in the antisocial aspects of prisoner welfare, which can’t be controlled through regulation. These, too, are probably substantial.

If undesirable actions were fully observable, the negative effects of prison vouchers could be controlled by regulation —prevent prisons from competing on ease of escape by penalizing escapes, and prevent prisons from making cell phones available by mandating cell phone jamming technology. If the undesirable actions are those of inmates, not prisons, the regulation could either act on inmates directly (sex offenders can’t transfer into a prison that doesn’t have sex offender treatment), or control inmates indirectly by acting on prisons (prisons get reduced, or zero, voucher revenue from receiving a sex offender if they don’t have sex offender treatment).

The problem arises when undesirable actions are unobservable. It’s hard to tell how much contraband gets into a prison. We don’t know who’s a gang member or gang leader, so we can’t control how gang members move around if they can transfer easily. So to some extent, the negative effects of prison vouchers can be controlled, and to some extent, there will remain some uncontrollable residual that we would just have to live with.

The questions is whether these uncontrollable residual negative effects outweigh the positives. Perhaps they do; perhaps not. I hope this thought experiment stimulates further thought along these lines to investigate whether prison vouchers are an interesting reform proposal after all.

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).

In this post, I discuss the disadvantages of the prison voucher idea. (Non-empirical arguments against prison vouchers were discussed in the previous post; this post only covers empirical disadvantages.)

* * *

“Market Failure” Arguments Against Vouchers

So let’s suppose that there’s nothing about a voucher proposal that’s philosophically inconsistent with the idea of incarceration. Would prison vouchers work?

The discussion above of how prisons would accommodate prisoners’ values if they had to compete for prisoners assumes that market forces would lead prisons to offer more valued amenities. Here, I discuss possible market failures that could prevent this from happening.

Barriers to Individually Maximizing Decisionmaking

Information. Convicted defendants may not know the actual quality of prisons, just as parents may not know the actual quality of schools. Does this argument apply with more or less force in prisons than in schools?

Someone sentenced to prison for the first time may not know much about different prisons. Even repeat offenders might have little direct experience with prisons if they’ve mostly spent time in jails instead of prisons; and even someone who’s been in one prison may not know about the others.

But one can find out about prisons from several sources.

First, one might have friends or neighbors who’ve been in prison, and information can spread by word of mouth.

Second, prisons can advertise, and reviews of prisons by current or former inmates may be available on the internet.

Third, there are already ways to evaluate prisons, such as reports of monitoring agencies or the Logan quality of confinement index. One can even require that prisons publish such information, as well as other information that would result from the voucher program, like the length of the wait list and the rate of transfer out of the prison, as part of their advertising. One possible model for prison information disclosure would be the federal government’s “Nursing Home Compare” site, which conveniently pulls together nursing home information already collected by the government.

Fourth, if the voucher program allows one to transfer out after a while, one will at least have some direct experience of one’s own prison, and if that experience is bad enough, it can be worthwhile to take the chance on another prison.

So far, the arguments look similar to those for schools. But the informational problem seems to be less severe in the prison context because the people who choose the prison are the same as the people who experience the service. With schools, there is an agency problem: The parents make the choice, but because they don’t directly experience the school, they have less of an incentive to become well informed (even if they’re altruistic toward their children) and they’re also less able to do so. Parents are imperfect agents of their children, whereas inmates are perfect agents of themselves.

A convicted defendant may also have some help from his lawyer, just as lawyers now try to get their clients into drug abuse programs or military enlistment. The government could also provide a default assignment or a list of recommendations, though the bureaucrats who currently assign an inmate’s prison may well be less favorably inclined to prisoners than school bureaucrats are to kids.

Ultimately, what convicted defendants lack in information, they may make up for in motivation, both to acquire information and to act on it.

Finally, even if information problems continue to be serious, this is an argument in favor of having prisons run by the nonprofit sector, just as information problems in education are often taken as an argument in favor of nonprofit schools.

Competitiveness. In addition to insufficient information, there might also be insufficient competitiveness; inmate choice might then still result in insufficient attention to inmates’ desires.

Even though I’ve stressed that prison choice needn’t involve private provision, making the market competitive enough to move in response to “consumer demand” might require the participation of private prisons. Public prisons, after all, may not even want more prisoners. Today, in fact, DOCs actually ask for fewer prisoners. Perhaps they do this because of inadequate funding—a problem that would be alleviated if an adequate voucher accompanied each prisoner (but not if total voucher funding merely matched the current funding of the correctional system). Or perhaps they’re just advocating a less incarcerative penal policy in general, not taking a position on whether they, as opposed to someone else, should get existing prisoners. But in general, it’s not obvious that public prisons benefit from having more prisoners, and in any event, public prisons may have less flexibility than private prisons to respond to market incentives. One should thus make sure to structure rewards and penalties for public prisons so that it’s in their interest to attract more people and also so that they have the freedom to experiment with different models.

One shouldn’t overstate the difference between the public and private sectors: private and public school curricula often look quite similar, perhaps because parents are uncertain about students’ ability and future job prospects, and the adoption of similar curricula allows parents to minimize this risk. This may well apply to prisons too: Prison is a traumatic place even under the best of circumstances, and inmates who will be spending a few years in one may not want to experiment.

But this doesn’t mean that competition is useless or that schools (or prisons) won’t differ. First, some schools (or prisons) will cater to those parents (or inmates) whose uncertainty or risk tolerance is different from the norm. This is why there are science magnet schools in large cities—some parents know that their children are gifted in science. Similarly, inmates may have heterogeneous rates of substitution between, say, the risk of violence and the quality of medical care. Second, schools still differ in “factors such as location, presence of religious instruction, and, perhaps most importantly, whether a school is a ‘good’ school or a ‘bad’ one in terms of technical efficiency.” All these factors are relevant for inmates as well, and it’s the third factor—the actual productivity of the prison—that may be the most significant in driving prison improvements.

External Effects of Individually Rational Decisionmaking

The previous market failure arguments suggested that prisoners (or prisons) might be unable to choose in a way that’s individually rational. Other market failure arguments could be based on externalities—even if everyone chooses rationally for themselves, the results may still be suboptimal, for instance if individual decisions have negative effects on other prisoners.

One obvious externality (this one on the taxpayer) could be the administrative burden on the system. I only flag this briefly, because the administrative costs of running the system seem minor relative to the overall advantages or disadvantages of the system.

Another effect of prison choice could be distributional. The better informed will tend to get better prisons—and these include repeat prisoners and those with the best connections in the criminal world. But this objection is strongest when there’s a single, unidimensional measure of prison quality. If “best” is different for different prisoners—if some prisoners prefer proximity to family while others prefer good medical care and still other prefer particular job training programs—choice serves a valuable matching purpose. In the extreme case, everyone could have their best choice. Moreover, even if there’s some redistribution from less to more informed, a rising tide could lift all boats: if prison vouchers lead to quality improvements, the uninformed may become better off as well, much like school choice can improve public schools for students who don’t use vouchers.

I’ll spend the rest of this section focusing on a particular dynamic that seems especially relevant in the prison context: self-segregation of prisoners based on level of violence, gang membership, or (relatedly) race.

In school, the quality of one’s fellow students is an important determinant of the quality of one’s education. Thus, students (or their parents) seek out schools with “better” students, and there may be strong pressures for stratification, though how important these pressures are empirically depends on how the particular voucher program is designed.

If such stratification occurs in schools, it can have various effects.

First, there’s the mere fact of segregation—as when students seek out other students of their own social class, ethnicity, religion, or race. This needn’t have any effect on educational outcomes, though some may consider segregation (even voluntary segregation) undesirable in itself.

Second, there are peer effects—when “good” students move from school A to school B, they may pull down educational quality in school A and raise it in school B. This process has systemic effects if selection is on characteristics that are correlated with high achievement, like socioeconomic status: socioeconomic stratification then leads to stratification of students by achievement. Since students benefit from being with “higher-quality” students, the departure of good students creates a negative externality for the remaining students.

Whether this applies to prisons depends on how important stratification pressures are, and how important peer effects are in the prison context. As an initial matter, note that the predicted stratification effect for schools comes about (if at all ) not only because of peer effects but also through tuition. Rich people are willing to pay more for a better education, and one’s own achievement increases when one is with smarter students; thus, a private school can benefit from attracting high-ability students with low tuitions and charging high tuitions to attract rich students to join them.

But prisons wouldn’t charge fees, so the tuition-based pressure for stratification would be absent. If prisons couldn’t be selective in their “admissions,” stratification would only be based on differences in tastes. If everyone had identical preferences for prisons, everyone would rank prisons equally, and a random cross-section of inmates would end up in the best prisons. If stratification occurs, it will be because prisoners themselves differ in what they value. Prisons with effective violence-prevention policies will acquire the prisoners who put the highest relative value on low violence (bearing in mind that prisoners can still only select within their security classification ); good-medical-care prisons will acquire the prisoners who put the highest relative value on good medical care.

Let’s consider self-segregation by violence level. Would a stratification of the system into “safer” and “more violent” prisons be beneficial?

First, let’s flesh out the concept of “safer prisons.” If a prison merely had low violence rates, relatively nonviolent prisoners would like such a prison, but so would violent prisoners who want to prey on nonviolent prisoners. So selecting for low violence rates probably isn’t a great strategy for a prisoner. Rather, a prisoner who values safety should select a prison that has policies in place that encourage lower violence, avoiding prisons that merely happen to be less violent because of, say, their inmate composition. A prison with effective security policies would tend to attract nonviolent prisoners and deter predators, who would prefer to stay in prisons with comparatively ineffective policies.

What would such stratification do to the overall “quality” of the inmates? Caroline Hoxby writes, in the context of “human capital segregation” in schools (the tendency of high-quality students to live around, and thus go to school with, other high-quality students):

[W]ithout knowing how spillovers work, we do not know whether the equilibrium has too much or too little segregation. Consider the “one bad apple” scenario. If a single household with low human capital in the district could make everyone else learn substantially less, yet would only experience small human capital gains itself, there would obviously be too little segregation. The converse scenario might be called “one shining light.” If a single household with high human capital could make everyone else learn substantially more, yet its own children would not learn any less (despite being surrounded by children from deprived backgrounds), there would obviously be too much segregation.

Prisons seem more like the “one bad apple” scenario. High-violence inmates are a bad influence on low-violence prisoners (because the low-violence prisoners are either brutalized by or learn bad skills from the high-violence prisoners), and “the bad eggs [or apples?] seem to have more of an influence on the good eggs than vice versa.” If this is so, then stratification by violence level may be desirable.

But what’s desirable under the assumption of perfect stratification may be less desirable if stratification is incomplete. Imperfect stratification might be extremely bad for some low-violence inmates who don’t get their preferred choice of prison and are stuck among a much increased population of high-violence inmates. This is less likely to be an issue for human-capital segregation in schools, because being stuck among a lot of bad students usually isn’t that bad.

So violence-based self-segregation may be beneficial in the extreme case, but could be either beneficial or harmful in the imperfect case.

What if inmates self-segregate according to race and ethnicity? This is similar to self-segregation according to gang membership, because race is an important driver of prison violence, with prison gangs organized along ethnic and racial lines.

Estimates of prison gang membership vary extremely widely. Some sources report that prison gangs account for no more than 5% or 6% of prison inmates. Others estimate that mean gang density at male institutions rose from 9.4% in 1991 to 24.7% in 1999 (3.5% to 7.5% at female institutions). The 24.7% figure masks variation by security level —16.1% in minimum-security prisons, 23.6% in medium-security prisons, and 32.7% in maximum-security prisons. And even these numbers mask substantial variation from area to area (numbers like 75% in California prisons and 90% in Illinois have been reported) and among individual prisons (some have reported 0% gang density and others 100%). Estimates of gangs’ contribution to prison violence also vary greatly, from less than 30% to over half.

The prevalence of prison gangs—even if the low estimates are right, there are some systems with high gang density—suggests that racial/ethnic and/or gang-based segregation is a realistic possibility. On the one hand, many prisons are already partially racially segregated, at least within cells, and also when inmates interact with other inmates in the general population. But on the other hand, explicit racial segregation—for instance, where inmates of different races were kept in different cell blocks—is on the wane, and in some systems there’s even integration at the cell level. So there’s still plenty of opportunity for both interracial contact. It’s thus plausible that inmates will seek out other inmates of their own race or ethnicity, if only to be less victimized by opposing gangs.

All this would tend to make voluntary self-segregation, either by race or by gang affiliation, a positive force for prison security. (Though, again, imperfect segregation could be bad for inmates of the minority racial or ethnic group or of the minority gang who don’t get their first-choice prison.)

This may be too quick a conclusion: whether racial integration actually increases violence is disputed. One study has found that desegregation doesn’t increase prison violence—in Texas, where the prison system has been progressively desegregated since the late 1970s, the inmate-on-inmate assault rate was generally less among inmates who were racially integrated in double cells; moreover, the rate of racially motivated inmate-on-inmate assaults decreased as the prison system became more desegregated.

This is an interesting result, though the study has some limitations. First, inmates were ineligible for placement in racially integrated double cells if they were members of racial or ethnic gangs or if they had had previous race-related problems in prison. (For instance, when Texas was starting to desegregate, gangs pressured inmates to resist desegregation efforts; “[i]n some cases, serious assaults were perpetrated on cell partners to earn a ‘racial restriction’ and be placed in a single-race cell.” ) Second, not all interracial assaults were coded as “racially motivated”; it’s possible that some interracial assaults weren’t considered to be directly motivated by race but were nonetheless motivated by, say, membership in opposite-race gangs (when such membership wasn’t known to the prison authorities so as to disqualify the member from integrated double-celling).

The bottom line of all this is that if prisons become racially more homogeneous, this may make little difference. To the extent it does make a difference, it might actually reduce violence, though life could become worse for some who are stuck in “the wrong prison.”

Finally, regardless of the effect on violence, some might still find the “social meaning” of such racial stratification objectionable. But this voluntary self-segregation probably wouldn’t be unconstitutional, and even liberal scholars have been much more accepting of some degree of racial segregation in prisons (for instance temporarily, after race riots) than in other contexts. Moreover, while there’s wide agreement that children benefit from being exposed to other types of children, this is much less obvious when it comes to prisoners.

“Market Success” Arguments Against Vouchers

But let’s suppose that the “market failures” discussed in the previous section aren’t too bad, and that this sort of competition really would improve prisons from the prisoners’ perspectives. Would this be good?

Some of prisoners’ preferences seem desirable. Prisoners probably prefer less violence and sexual abuse, better health care, and better vocational training, other things being equal. They also may prefer prisons close to their family, to facilitate family visits. These all seem unobjectionable, either on humanitarian grounds or on rehabilitative grounds, though many can be found who quietly—and sometimes not so quietly—favor more brutal and abusive prisons on retributive or deterrence grounds. To the extent we favor these preferences of prisoners—and to the extent the political process slights them—this is an advantage of prison vouchers, which would beneficially remove prison reform from the hands of unresponsive democratic majorities and put it in the more caring hands of impersonal market forces, that is, of prisons catering to the praiseworthy desires of prisoners.

But not all preferences of prisoners should be satisfied. (If prisoners had nothing but praiseworthy preferences, why would we have locked them up?)

First, let’s consider prisoner preferences that shouldn’t be satisfied, even though they’re morally neutral. Consider amenities like gym facilities and television choices. These are commonly derided as “country-club” amenities, though they are beneficial in maintaining prisoner discipline. Similarly, conjugal visits, far from being a frivolous luxury, may be important on rehabilitative grounds: conjugal visits may reduce prison rape, and helping the prisoner to maintain family connections and marital ties may also reduce recidivism.

But in general, the concern over prisoners’ enjoyment of amenities—for example, pleasant weather conditions—can be sound. Any amenity that improves the prison from the prisoner’s perspective also presumably dilutes its deterrent value, and therefore may be undesirable from an optimal deterrence perspective. Similarly, from a retributive perspective, even (and maybe especially) the small pleasant things in life are good candidates for elimination, precisely because they’re pleasant.

One can undo the effect of increased amenities by, say, increasing the prison term, but this is highly expensive relative to making prison stays shorter but less pleasant. In fact, strictly from a deterrence perspective—considering the high social costs of imprisonment (and ignoring any negative effects of bad prison conditions on rehabilitation)—it may be more efficient to concentrate on making prison conditions worse than to lengthen prison terms.

Of course the full policy analysis is more complicated: the partisans of prison brutality and rape may be right on deterrence grounds but wrong on rehabilitation grounds, as brutalization may make prisoners worse people when they exit prison. So having a high-amenity prison may, on balance, be socially desirable. But it’s still possible that some amenities should be kept low.

Second, let’s consider prisoner preferences that are affirmatively harmful to the outside world.

I’ve already mentioned that we may want to force certain prisoners into certain services, like psychological services for the mentally ill. They may not choose that for themselves; mentally ill prisoners’ distaste for psychological treatment would thus be socially negative. More generally, prisoners may not value rehabilitation, even if it works (aside from immediately useful rehabilitation like vocational training). Some sort of training may have to be mandated.

In a sense, this is similar to mandated curricula in the school context—maybe parents can’t always be trusted to choose what’s best for their children—but in a sense it’s worse: imagine how much more we might be mandating in the curriculum if the kids themselves were doing the choosing. Solving the agency problem—unlike with schools, those who choose prisons would be the same as those who have to be there —may exacerbate these negative externalities.

A related concern is that self-selected prisons could be breeding grounds for racially separatist or extremist religious movements. One does hear the complaint that prisons are already “fertile grounds for radical Muslim chaplains to recruit” adherents; should we adopt a system that could lead to a Muslim prison? (Compare this with fears about school vouchers based on the possibility that parents will have bad views of education and will send their kids to witches’ coven schools or madrassas or to schools that match their race or socioeconomic class.)

To the extent this concern is warranted, prison vouchers might actually alleviate the problem. Some of the concern does stem from the activities of Muslim clerics, but many blame primarily an inmate-driven “breed of ‘Prison Islam’ that distorts [traditional] Koranic teaching to promote violence and gang loyalty.” The heavy involvement of radical inmates in Muslim observance in prison, in turn, stems from an “acute [Muslim] clerical shortage”: as of 2006, there was one chaplain for every 900 inmates. Moreover, most Muslims in prison entered prison as non-Muslims, and about 80% of prisoners looking for a religion convert to Islam. Allowing Muslim prisoners to self-segregate may alleviate the clerical shortage (if there are economies of scale in chaplaincy), and may also reduce the amount of recruitment among non-Muslims.

So the concern might not be justified for the Muslim example; but perhaps the more general concern might be justified in other cases.

Would prisoners prefer prisons that help them escape? Why yes they would, but this preference is easy to control. Prison escapes are (eventually, even if not immediately) highly public affairs, and so private prisons could simply be heavily penalized (up to the firm’s losing the right to operate) for escapes. But while the escapes example is silly, it shows that, when the undesirable activity is hard to observe, voucher prisons may have broad scope to cater to prisoners’ antisocial preferences.

One example would be easy access to contraband. If the contraband is pornography, perhaps voucherized prisons wouldn’t have much of an incentive to control it; but perhaps this wouldn’t be terribly harmful. If the contraband is drugs or tobacco, perhaps again voucherized prisons wouldn’t have much of an incentive to control it, except to the extent drugs make prisoners violent, in which case prisons would have some incentive to control drugs in order to attract security-conscious inmates. The last point applies as well if the contraband is weapons—if prisons have good incentives to improve security, this translates into incentives to control the flow of weapons into the prison.

In any event, even if prisons would have few incentives to control contraband, they already do a bad job of controlling it now. It isn’t surprising that they don’t effectively control the flow of drugs, even into high-security prisons—inmates often have drug ties, and the stakes are extremely high, with illegal drugs and tobacco being sold in prison for up to ten times their street value.

Prisons may also choose to cater to criminals who want to run their criminal enterprise from within the prison; the prisons could become attractive to such criminals by loosely monitoring incoming and outgoing mail, phone calls, and visits. I take up related concerns in the discussion of gangs below.

Cell phone smuggling is a related problem—“[i]llegal cell phones are used to circumvent supervision of conversations, and can be used by inmates to orchestrate criminal activity, plan escapes, and be a menace outside of prison walls.” Inmates have always been able to plan criminal activity or intimidate witnesses through prison visits by confederates, calls on approved prison phones, and other means—but communication with the outside has its costs. La Nuestra Familia members resort to various methods like using the Aztec language, “micro writing,” codes, messages hidden in artwork (for instance, by writing invisible messages in urine), and long messages sent through paroled members. Cell phones can reduce these costs substantially. And detecting smaller and smaller modern cell phones has become harder in recent years.

To the extent cell phones encourage disorder and violence within the prison, perhaps we can already expect voucher prisons to police cell phone smuggling. Unfortunately, the same won’t be true if, as seems likely, the main disadvantages of cell phone smuggling flow to people on the outside, like intimidated witnesses or future crime victims. But cell phone jamming technology may be an adequate technological fix in this case.

The bottom line on smuggling is that prisons will have incentives to control some forms of smuggling and won’t have incentives to control other forms. It’s possible that the government can control contraband smuggling. Smuggling can still be measured, albeit imperfectly. The government could try to smuggle contraband into the prison—perhaps by using a fake inmate to try to acquire drugs or a cell phone, or by using a real inmate whose cooperation has been purchased—and see how often it succeeds. A prison that tolerates smuggling could thus expect to suffer penalties. But this strategy may not work very well. Some smuggling—the kind that is harmful but that isn’t contrary to the interests of prison administrators—will continue to be a problem.

Recall the discussion above of self-segregation by race or ethnicity. I argued above that such self-segregation may not be bad for inmates, since whatever the benefits of diversity for students, these benefits are probably small for adult prisoners, and given the correlation between race/ethnicity and prison gangs, such self-segregation may actually have the beneficial effect of reducing violence.

But this self-segregation has negative effects beyond prison. Being around members of one’s own community—and members of one’s own outside criminal community—makes prison a less undesirable place to be, and therefore qualifies as one of those amenities that reduce prison’s deterrent value. In addition, many gangs, like the Mexican Mafia, La Nuestra Familia, or the Nazi Low Riders, operate on the outside as well as in prison. (In fact, various outside gangs may have been fostered in prison. ) Thanks to telephone and mail monitoring and other measures, gangs that operate across prisons and in the outside world have problems communicating. Concentrating gang members in one place would reduce these communication costs. This is why various prison systems try to disperse gangs throughout many different institutions. Individual prisons also try to isolate gang leaders or members, for instance by transferring them among prisons or even out of state.

But concentrating gang members might not be all bad: dispersing a gang increases its recruitment opportunities, so self-segregation might reduce the gang’s power to some extent. Moreover, other aspects of the prison voucher system might also reduce the power of prison gangs: prison gangs control street gangs, for instance through the extortion of dues, in large part by threatening violence against gang members who don’t pay and by offering protection to gang members who do. So to the extent that prison vouchers lead to a more secure prison environment, this carrot and stick would become less valuable, which would tend to reduce gang power.

This whole discussion implies a possible continuing role for government regulation, to prevent prisons from offering amenities that are too attractive (without countervailing benefits for society as a whole) and to prevent prisons from catering to prisoners’ socially undesirable preferences. One way of implementing this would be to have an oversight agency with the ability to prevent prisons from offering, or competing on, particular amenities that it finds to be undesirable.

Note that this would be a total reversal of the current political dynamic, where political forces keep prison quality low, and it’s an uphill battle to improve prison quality.

But because not all undesirable amenities can be monitored, we will have to accept some amount of undesirable activity as a result of prison vouchers. The “market success” argument is a significant argument against prison vouchers, because social losses from the satisfaction of undesirable prisoner preferences may well be great. (The market success argument against prison vouchers is thus stronger than the corresponding argument against school vouchers, since inmates’ undesirable preferences are probably more harmful than schoolchildren’s parents’ undesirable preferences.) The question is whether this residual amount of undesirable activity outweighs the desirable consequences of prisoner choice—for instance, reducing prison assaults and rapes, improving medical care, alleviating overcrowding, providing better job training, and the like.

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).

I’m skipping over constitutional issues related to prison vouchers — that’s the subject of another full article that I may discuss here in due course. In this post, I discuss some possible benefits of prison vouchers, as well as some possible disadvantages. Of the disadvantages, this post discusses only the non-empirical arguments against prison vouchers; the empirical arguments (based, for instance, on market failure considerations) will be the next post.

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The Potential Benefits of Vouchers

Let me recap how vouchers could improve prison quality. Under a voucher system, inmates would control where they went. Therefore, they would tend to choose prisons that best satisfied their own preferences. This choice might be very different from the one that would be made under the current system by prison officials, whose humanity and professionalism can’t always be taken for granted, whose interests don’t necessarily coincide with those of prisoners, who may be steering prisoners to particular prisons for political reasons, and who (also for political reasons) may be opposed to prisoner welfare.

If inmates’ preferences are very heterogeneous, this could just result in a reallocation of inmates among prisons, so there would be a better match between prisons and inmates. That alone would be a significant benefit from prisoners’ point of view, even if “quality” in some objective sense didn’t rise.

But many amenities are likely to be broadly desired: safety, good medical care, less high-security segregation, better activities and programming, and more floor space. Inmates may also value opportunities to work, which may reduce recidivism.

So it seems reasonable to expect that prisons, if they’re put in the position of having to compete for prisoners, will offer these broadly desired amenities; I’ve suggested a list of them earlier in this Article. The prisons that are the very best according to those attributes will be oversubscribed, so some inmates will have to go to their second, third, fourth, or even last choice.

Under conditions of substantial overcrowding, perhaps no prison, not even the worst one, will lose inmates, so in a static world, prisons may not benefit from being more attractive. But, assuming that the voucher amount is generous enough, prisons will want more inmates, so oversubscribed prisons will benefit from building extra wings and extending their business model.

Prisons would thus improve by competing with each other on attributes valued by prisoners. Moreover, the benefits to individual prisons from adding extra valued features would be substantial. First, (at least private) prison providers would be able to implement a feature directly, without having to convince a procurement officer that the feature is a good idea and a wise use of funds. Second, a prison could benefit from a valued feature more immediately than under the current regime, as it could “poach” existing inmates from other prisons through transfers rather than having to wait for an influx of new prisoners as they are convicted. (As noted above, even if an amenity is expensive, a prison can benefit from adding it if, as a result, its inmate population increases sufficiently. )

These choice-driven improvements thus bypass the barriers to legislative, administrative, and judicial reform. As for privatization, the mechanism by which it may improve quality in a non-choice allocation regime is the process of competitive bidding and reputation-building. But this depends crucially on the competence and benevolence of the officials who run the bidding (which, like those of the officials who assign prisoners, aren’t guaranteed). Once a private provider gets a prison contract, if reputational and contract-renewal concerns are weak, there are strong incentives to reduce quality. Choice prisons, on the other hand, have less of an incentive to reduce quality because at least some quality reductions are directly observed by those whose choices matter. If prisoners can transfer out, quality reductions can result in a loss of inmates, and even if the possibility of transferring out is limited, quality reductions could harm the prison’s reputation, which would reduce the inflow of new prisoners.

Choice can also have long-run effects on the entire prison system. “[C]hoice can affect productivity through a variety of long-term, general equilibrium mechanisms that are not immediately available to a[ prison] administrator.” This includes increases in wages of higher-ability prison managers or corrections officers, which may attract higher-quality people into those professions. Prisons may find it in their interest to “issue more information about their achievement and may thus gradually make [inmates] into better ‘consumers.’” The need to attract “customers” may make prisons more responsive to evidence-based techniques rather than fads that appeal to bureaucrats.

While the “active” inmates under a voucher system are those who transfer from one prison to another, or make an initial choice to go to a different prison than the one they would otherwise have been assigned to, choice could also improve the prison experience even for those who never transfer or who choose to go to their default prison. In fact, this could be the most important vehicle for improvements if many inmates don’t actively use their ability to choose. In the short term, this “would greatly extend the benefits of . . . choice beyond the [inmates] who are first to take up the opportunity to attend . . . [new private prisons].” Moreover, if public sector quality rises enough, this could overcome any negative spill¬overs on certain inmates, for instance based on peer effects, discussed below. Along these lines, there is evidence that vouchers have improved productivity in Milwaukee public schools and that charter schools have improved productivity in Michigan and Arizona public schools. (But note that the likelihood of competitively driven improvements in public sector quality depends crucially on how public sector funding reacts to the use of vouchers. )

The Potential Disadvantages

Two key factors have been implicit in the argument that vouchers would improve prisons.

The first is that prisoners’ ability to choose would make prisons become more attractive, that inmates would choose such prisons, and that as a result the system as a whole would indeed improve from the prisoners’ perspective. One could dispute this mechanism on a number of grounds. Perhaps the prison industry won’t be competitive enough to generate meaningful innovation. Perhaps inmates wouldn’t be informed enough to reward innovative prisons. Perhaps inmates, while making choices that are individually rational, might impose external costs on other inmates that would leave the system as a whole worse off—one example could be self-segregation along undesirable dimensions. These sorts of “market failures” could prevent vouchers from working.

The second is that “improvement” of prisons from the prisoners’ perspective is socially desirable. But this depends on how well inmates’ preferences are aligned with social preferences. What if prisoners effectively demand prisons with loose regulation of contraband or with country-club conditions? While the previous set of objections stemmed from “market failure,” these objections may be said to stem from “market success”—the market works too well, and we don’t like it.

Another factor has also been implicit—a “Step Zero” of the analysis, if you will : the belief that a regime of choice is, in principle, appropriate for people who have been intentionally deprived of their choice over most important aspects of their lives.

In this Section, I discuss these three factors. First, I discuss the non-empirical arguments against vouchers based on the supposed inconsistency between the idea of choice and the idea of incarceration. Second, I discuss the “market failure” arguments. Third, I discuss the “market success” arguments.

Non-Empirical Arguments Against Vouchers

Is the concept of prison choice inherent in vouchers inconsistent with the very idea of incarceration? Perhaps prisoners are unable to freely choose because, being prisoners, they are under “duress.” Perhaps the very idea of incarcerating people is inconsistent with the idea of allowing them free choice.

Prisoners are placed in an environment that, by its nature, restricts their freedom. They have no privacy rights under the Fourth Amendment. All sex, including consensual sex, is forbidden, except in the limited context of conjugal visitation programs. They aren’t allowed to exercise choice in a range of activities; for instance, their right to consent to medical studies is extremely limited.

But the mere fact that prisoners’ choice is sometimes—or even usually—restricted doesn’t mean that prisoners are incapable of exercising choice. Prisoners retain constitutional rights, even if these can be limited in the interests of prison management. Many of these rights—for instance, free speech, free exercise, and marriage rights —are based on the idea that, despite their unfree condition, prisoners can still make autonomous moral choices. In fact, prisoners’ ability to experience religious freedom, combined with outrage at prison officials’ arbitrary treatment of various meritorious religious claims, motivated the passage of the bipartisan Religious Land Use and Institutionalized Persons Act, so that now, “in principle, inmate religious claims against states are given more solicitous consideration than are nonprisoner religious claims against states.” Prisoners generally have some flexibility as to whether they work while in prison. They’re allowed to control the course of their own litigation. And they can make voluntary choices to participate (or not) in prison programs or decline (or accept) an offer of protective custody.

Even suppose that a prisoner values prison and its coercive nature. His behavior on the outside has been so self-destructive and his impulses so uncontrollable that he experiences prison as a respite from having to make choices. Even a prisoner who wants to be free from everyday concerns and the overwhelming choices of freedom may well want to make some choices. Aside from the opportunity to use prison to experience religious and spiritual renewal, anyone may value being in a place with better medical care or lower assault or rape rates.

There are various reasons for restricting prisoners’ freedom: retribution, incapacitation, deterrence. One may want to protect them from other prisoners: perhaps what looks like consensual sex may be rape in disguise. One may want to protect them from hidden and subtle coercion from other sources, as perhaps in the case of participation in medical studies: perhaps one is concerned about the power imbalance between researchers and inmates, especially in light of past abuses. But all this is consistent with a recognition that, in whatever free space is left to them, prisoners are able to make choices that are as autonomous as anyone else’s.

One may still argue that, though prisoners of course retain residual liberty, there’s no value in such liberty, and so there’s no reason to treat prisoners like the parents of schoolchildren, whose choices we presumptively value.

But nothing in this proposal requires treating prisoners as morally entitled to choose. In fact, the same is true of school choice: Some advocates of school choice present vouchers as designed to give parents the choice they are entitled to. But others present vouchers as merely an instrumental way of using choice to pursue socially beneficial policies. Indeed, this is the standard approach of economists, who usually treat competition and choice as a mechanism that can, under certain conditions, improve social welfare, and not as something morally valuable.

Similarly, we can respect prisoner choice instrumentally, as a policy matter, if we find that the social positives outweigh the social negatives—using prisoner choice as a means to the end of socially desirable correctional policy—even if we don’t respect prisoner choice in our hearts.

In this post, I discuss the mechanics of how a voucher scheme would work: how choice would operate, why choice isn’t the same thing as privatization, some funding details, and some statutory restrictions.

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Choice

Inmates today have little or no choice of prison. In Texas, for instance, convicted defendants can’t ask for a particular prison at the outset; prisoners are assigned based on their supposed needs. There’s no formal way to “bargain” with the court or with the prosecutor. Voluntary transfers are limited. In the federal system, the Bureau of Prisons takes the court’s recommendations into account, but there’s no guarantee that the court will convey the prisoner’s preferences, and generally there’s no systematic way for prisoners to have their preferences satisfied.

In California, there’s a limited amount of choice in jail assignment: through “offender self-pay” programs, minimal-risk offenders can, for a fee and with court approval, opt out of the regular jail system and be housed in the jail equivalent of a “five-star Hilton,” where they get distance from violent offenders, work furlough rights, and perhaps even the right to bring computer equipment. But this California system is both unusual and inegalitarian.

So under the standard regime, prisoners are assigned primarily based on a state correctional employee’s judgment of available space, as well as inmate needs like proximity to family or substance abuse or sex-offender treatment programs.

Prison choice would supersede this mechanism. The process would begin at conviction. The convicted defendant would receive a coupon, good for incarceration for the duration of his term, which he would be required to redeem at a participating prison (sorry, no choice there). The set of participating prisons may or may not include private prisons. In fact, as I discuss below, choice is conceptually independent of privatization, and—even though some arguments for or against vouchers are often made with private providers in mind—one can talk about vouchers even without privatization.

Imagine a convicted defendant awaiting sentencing, presumably with a lot of time on his hands. He can spend his time flipping through a book, perhaps like the Yellow Pages, with ads for different prisons—or perhaps the “flipping” can be done online if he has internet access. To get an initial view of dimensions along which prisons might compete, let’s take a more detailed look at some of the problems prisoners face today. Each of the problems listed below suggests possible reforms that inmates might find attractive. (Prisons could advertise such reforms with color photos, supporting statistics, and inmate testimonials.)

Violence. Though good data is elusive, violence against inmates, both by other inmates and by staff, is a serious problem. This includes prison riots as well as “gang violence, rape, beatings by officers, and in one large jail, a pattern of illegal and humiliating strip-searches.” Violence is fueled by, among other things, overcrowding, idleness, and distance from family and community.

A prison in a voucher system might respond to this problem by adopting a more effective security policy. This could include a “direct supervision” policy, which involves substantially more direct interaction between inmates and corrections officers (rather than the “traditional model” where guards supervise prisoners from behind glass or bars), and which has been said to improve safety. It could also include a focus on conflict resolution and prevention rather than the frequent current emphasis on using force as “a ‘first strike’ response before other tactics are considered or attempted.” It could also include a broader use of surveillance technology to “protect prisoners and staff from violence and from false allegations of misconduct” (to the extent this is consistent with inmates’ preferences for privacy), as well as non-invasive drug- and weapon-detection devices.

Health care. Correctional health care is inadequately funded, understaffed, and often provided by underqualified doctors. Communicable diseases, such as staph infections, tuberculosis, hepatitis C, and HIV, are thus widespread. Care for the mentally ill in prisons and jails—where rates of mental illness are two to four times higher than among the general public—is likewise inadequate.

A voucher prison could offer better medical care (including better screening, testing, and treatment of infectious diseases, and better care for the mentally ill), better staffed facilities, more doctors and nurses per inmate, and partnerships with community health-care providers. A prison could also provide a variety of health insurance plans, offering inmates the chance to opt out of the common cost-control system that requires co-payments for medical care.

High-security segregation. High-security segregation is over-used, often on prisoners who pose little security risk or are mentally ill. Some believe that such segregation is counterproductive, and segregated prisoners have little access to programming that could make them more productive citizens when they’re released.

A voucher prison could limit the use of high-security segregation, have secure therapeutic units for mentally ill prisoners, and offer more human contact and more programs to inmates in segregation, with transfer to the general prison population near the end of their sentence to prepare them for release.

Corrections officers. Corrections officers are underqualified and insufficiently trained to resolve problems without violence, and the general idea of treating inmates with respect—a valuable skill that helps maintain security and control—is undervalued in training. A voucher prison could recruit a more highly qualified and more diverse staff with lower turnover and higher morale.

These are only a few possibilities. Here are some more:

• A prison could offer better activities, like gym equipment and television programming.
• A prison could offer better “programming”: high-school and college-level education, job training (or opportunities for voluntary inmate labor), counseling, and other rehabilitative programs.
• A prison could offer more space per inmate.
• A prison could provide more opportunities for family visits, “providing ample space and time, and even assisting with transportation.”
• A prison could provide cheaper telephone calling plans that would allow more frequent communication between inmates and their families.
• A prison could locate closer to inmates’ home communities.
• A prison could institute an independent system of external monitoring with meaningful enforcement, perhaps through a non-governmental organization modeled after the International Committee of the Red Cross, which inspects “detention facilities in conflict zones worldwide.” This could involve encouraging politicians, judges, citizens, the media, and non-governmental organizations to visit prisons and interview prisoners and staff.
• A prison could develop a meaningful internal grievance system, where complaints are confidential, inmates get copies of their grievances, and prisoners and guards are protected from retaliation.
• A prison could seek accreditation from the American Correctional Association, or develop its own standards (or adopt another organization’s standards) that are more stringent.
Regardless of the Prison Litigation Reform Act, prisons could allow inmate lawsuits against them, at least in state court and on contractual grounds.

Many of these policies would be costly for prisons; this is exactly why, rightly or wrongly, they haven’t been provided by the political system. Prisons that adopted such changes would, other things being equal, make less profit per inmate. But if the change is valued enough by inmates, the prisons could make up for the lower per-inmate profit by attracting more inmates. They could also bundle a valued but costly change with a reduction in some other amenities. For instance, a prison with better medical care (or that encouraged greater usage of medical care by abolishing co-payments) might locate further from the inmates’ communities (where real estate is cheaper) or might offer less programming.

The inmate’s choice would be limited to his security level (minimum, medium, or maximum). There may also be certain mandatory conditions attached to the voucher. Perhaps a sexual offender must go to a prison with appropriate programs, and perhaps someone else will need to make the choice for prisoners who are sufficiently mentally ill that they are judged incapable of choosing. But even for the mentally ill, the chooser needn’t be a Department of Corrections bureaucrat. The choice could be made by the inmate’s family or by an appointed legal guardian.

Having made his choice, the convicted defendant would be sent to his requested prison, subject to availability. (A prison system may want to guarantee a spot in certain units to certain prisoners, like those with particular physical or mental illnesses; also, a gang member who has informed on his gang may have to be sent to a “snitch farm” to avoid reprisals. ) As with schools, popular prisons will have waiting lists—which, provided the voucher amount is high enough, would provide an incentive for the prison to grow, since a prison wouldn’t need anyone’s permission to accept new prisoners if it expands (aside from whatever local construction permits may be necessary).

Once a prisoner is in a minimally acceptable place, he may want to stay put, for instance because of social connections he will have forged in prison. So it makes sense to at least offer the choice before incarceration begins. But because prisoners may not have enough information to make a good choice before they’ve served any time, it would probably also make sense to at least offer one transfer after some time, perhaps a year or two, so that they can effectively punish a low-quality prison. One may also offer transfer possibilities at regular intervals—like “open enrollment periods” for health plans or the natural re-enrollment periods in schools based on the school year—perhaps every few years. One could even imagine transfers at will, though this would involve greater administrative and transportation costs.

Current policies on involuntary transfers could be kept exactly the same as before, though unless the purpose of the transfer is to fight gang activity or otherwise to maintain safety, principles of prison choice suggest that Departments of Corrections should still look for volunteers.

Choice Is Not the Same as Privatization

As I’ve mentioned above, arguments about choice are often merged with arguments about privatization. Privatization skeptics may thus also be skeptics about choice. But this needn’t be.

In the school choice debate, a prominent question has been whether religious schools should be allowed to participate. This question presumes that the school choice plan includes private schools, since a religious public school would be facially unconstitutional. More generally, arguments for school choice often include arguments in favor of private schools. This is because the factors that are claimed to make choice work—chiefly flexibility, cost savings, and responsiveness to market incentives—seem to be more present in the private than in the public sector.

But choice needn’t have anything to do with private provision. These are logically distinct policies.

First, let’s ignore private providers.

• Without choice, everyone could be assigned to a particular public school, perhaps their local one. This also describes the current system of incarceration in states without prison privatization, as well as state-funded indigent defense in most places.
• Or one could have a choice program within the public system alone, for instance vouchers limited to public schools. Magnet and charter schools are also a form of public-school choice.

Now let’s suppose some services are provided privately.

• Even then, one could have privatization without choice. For instance, a private company, like Edison, could become the superintendent of an existing (choice-less) public school system. This also describes the W-2 program for welfare in Wisconsin, or the current prison privatization regime, or assigned counsel for indigent defendants, or a regional health facility to which the state has delegated its entire responsibility for its health care duties under the Medicaid statute.
• Or one could have choice within a regime of (partly or wholly) private provision. Food Stamps are a classic example of such a program, since the government plays a minor role in food distribution. Consider also drug or alcohol abuse rehabilitation, or traffic school, where defendants may be sentenced to the program but most or all providers are private. In England and Wales, and also in Ontario, indigent defendants choose their own defense attorneys using public funds. And, of course, school choice proposals generally include private schools, but public schools remain available.

This last option—choice together with private provision—is the one imagined most often, and in fact I’ll often use private-sector examples in what follows. But it should be clear that we can have privatization without choice, and choice without privatization. All four possible schemes exist in the real world. One can thus talk about choice, whether in schools, prisons, or anywhere else, even if one is hostile to private provision.

Funding

As with school vouchers, the voucher amount could simply be equal to (or some percentage of) the cost of incarceration at public prisons. If the program is to include private prisons, the percentage would have to be high enough to induce enough prisons to want to participate, so as to get meaningful competition.
But the voucher amount could be determined in more complicated ways. The formula could be based on as many observable characteristics of the inmate as are permissible to consider—for instance, sex, age, security level, nature of the crime, known psychological or medical conditions, and known history of violence.

The voucher amount could even be different depending on what prison it is redeemed at. It could depend on how many inmates the prison already has; thus, if initial inmates are expensive but additional inmates (up to some limit related to the capacity of the prison) are cheaper to serve, the voucher amount at a prison could start high and decline as the number of inmates increases. But this approach would have costs of its own: it would require that the government monitor prisons’ costs, and it would discourage the expansion of successful prisons.

Before talking further about funding, we should determine how (if at all) prisons should be able to pick and choose among inmates. Clearly all prisons can’t choose the inmates they prefer, because what if they all rejected the same inmate? So there must be at least one prison of last resort, perhaps a public prison—though one could also imagine a private firm willing to play this role. If some prisons can choose, they’ll probably be better informed than the government about the characteristics of the inmate, if for no other reason than that some factors that are probably relevant to the cost of incarceration, like race, will probably be impermissible for the government to consider. They’ll thus consider more factors than whatever formula determines the voucher amount.

Prisons that can choose will then systematically reject inmates with insufficient vouchers, which puts the burden of incarcerating them on whoever can’t refuse a prisoner, that is, the public prison of last resort. Perhaps in future rounds of voucher amount determination, the government can correct its past mistakes, but in general prisons will be ahead of the government in the arms race of figuring out an inmate’s true cost of incarceration.

Therefore, it probably makes sense to require participating prisons to take all comers; and if a prison has a waiting list, perhaps prisons should have to admit inmates by lottery. Prisons might still be allowed to serve particular categories of persons—a company might specialize in women’s prisons, or prisons for inmates with particular medical or psychological problems—but at least within those categories, they shouldn’t be able to pick and choose.

Then the only burden on the government is to make the voucher amount for each prisoner category generous enough that, on average, inmates in that category are worthwhile to incarcerate.

So far, we’ve been assuming that—however determined—the voucher amount for a given inmate type at a given prison is a flat fee. But voucher amounts could be even more complicated. One way of solving the problem of prisons rejecting particular inmates would be to institute an auction system, in which prisons would bid on each prisoner, who would then be issued a voucher sufficient to cover a certain number of bids.

This might be administratively too complicated, and would also require a prison of last resort. Or, instead of a flat fee, one could imagine a “per service” voucher amount (by number of medical visits, disruptions, etc.). But, assuming the per-service amount is generous enough to exceed the cost of providing the service, this would give prisons incentives to oversupply the service, which would require the government to incur heavy monitoring costs.

I only mention these briefly to flag the possibility, though from now on I’ll assume that vouchers are structured as a flat fee, with prisons having no ability to reject inmates within the category they’re serving.
The voucher would replace the current arrangements by which private prisons are reimbursed. If an inmate chooses a particular prison, the prison gains the voucher amount as revenue, and if the inmate transfers out, the prison loses that amount.

For public prisons, it’s less clear. Public schools under voucher plans often continue to be funded out of general revenues, without any explicit accounting for how many students attend the school. Whether a public school loses money when it loses a voucher student to a private school thus depends on the details of the school finance system. Some school voucher plans are structured so that public schools don’t suffer at all from losing students. “[P]seudo-choice plans” are common, where “money does not follow students or so little money follows students that a school accepting an extra student cannot cover its marginal costs; plans in which schools are not able to enter, expand, contract, or exit; plans in which schools need to seek approval or financial support from other schools with which they are supposed to compete; and so on.”
Successful schools have had their funding decreased, and vice versa.

The public prison funding system under a voucher system should probably avoid such perverse incentives. If public schools, or prisons, don’t lose money when they lose a “customer,” we shouldn’t expect competition to improve the quality of the public system. If they don’t lose money, this increases the total cost of the system; but it could also be a political concession to, say, public employees, by limiting the public system’s losses. I would suggest that public and private prisons be funded by vouchers in the same way.

The analogy with schools (or food stamps) suggests that prisoners could be allowed to supplement their voucher with their own funds. But this probably isn’t a good idea on ethical grounds—I’ve noted the inegalitarianism of California’s “offender self-pay” program above —despite its possible efficiency benefits.

Statutory Restrictions

Suppose the prison choice plan includes private prisons. What regulations would govern them? We may focus on two possibilities:

• anyone may start up a prison, subject to certain security requirements; or,
• (more modestly) the government may choose who may operate a prison, just like now, but the allocation of prisoners to prisons would proceed by choice instead of by bureaucratic assignment.

By analogy to schools, one could imagine a system of “charter prisons”—prisons that are public but that have more independence from the Department of Corrections. Like charter schools, charter prisons could operate whether or not there are private providers. This could improve the possibilities for choice to improve public prisons.

Once the universe of providers is determined as above, prisons could be governed by most of the same statutes and regulations that they have now—for instance, guard training and the like.

One sort of statute that may now be moot would be the sort that requires private prisons to achieve particular cost savings or quality improvements relative to public prisons.

The quality improvement requirement would be replaced by prisoner choice—quality would no longer be defined by a yardstick imposed by someone else (like the Logan quality of confinement index ), and each prison could pursue its own vision of quality, just as each prisoner could have his own view of what constitutes quality. Litigation over quality levels (for instance, if there were a guarantee of floor space or grievance procedures) would take place at the level of contract law—arguably, prisoners would be in a better position litigating as contractual partners than as prisoners.

Nonetheless, nothing prevents some amount of quality regulation (input, output, or outcome) as a floor, just as there is regulation of private schools. Under a voucher system, there is actually an argument for government regulation to provide a ceiling for quality, lest prisons become so good from the prisoners’ perspective that its deterrent value is reduced; and increases in “quality” (from the prisoners’ perspective) that are socially harmful will also have to be regulated. But more on this later.

As for cost savings, this requirement was probably unnecessary anyway, since there’s already a strong incentive to cut costs under any fixed-reimbursement scheme (whether under choice or not). In addition, the government can reduce the voucher amount if it believes there’s enough competition for prisoners at a given amount.

The voucher system could also change how prisons enter and exit, contract and expand. Currently, private prison firms win contracts and build prisons to fulfill them, or build the prisons in advance, hoping to win the contracts to use them. Under a voucher system, firms would still need to get local building or zoning permission, but otherwise they’d only need to convince the pris-oners themselves. As noted above, popular prisons would have waiting lists and be able to expand without having to ask permission from the Department of Corrections; unpopular prisons would contract or close down.

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More next time!

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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:

1. Both face widespread and serious problems.
2. The problems in both areas have proven hard to solve through the usual political, administrative, or judicial means.
3. 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!

* * *

Finally, there’s the normative point, which has already been extensively covered by critics of utilitarianism. Deciding whose costs and benefits count is normatively loaded—this is why Cass Sunstein got into trouble for his concern with the interests of animals. So is deciding how costs and benefits should count—this is why the question of intergenerational discounting is so contentious. So is deciding what is a cost and what is a benefit. When a regulation results in a reduction in suicides, it’s common to count this reduction as a benefit; Dean Revesz does so, for instance, when discussing the benefits of auto emission limitations and a similar claim is often made in the context of gun control. But calling suicide prevention a benefit is (or should be) ethically controversial both from a “consumer sovereignty” perspective and from a libertarian perspective that sees suicide as a choice like any other.

[Footnote (citations omitted): Revesz defends a concern for suicide prevention on the grounds that “[a] person’s choice to undertake suicidal behavior may not be a reflection of her true self and her self-inflicted death could be an act that she would, in calmer and clearer moments, recoil at.” Because suicidal thoughts may be connected to mental illness, a suicidal person’s “rational autonomy” might be compromised, so that “the decision to engage in suicidal behavior [might] not [be] a reflection of one’s considered values or aims.” But this sort of reasoning is precisely what should be morally controversial. To count suicide reduction as a benefit means that one is privileging some hypothetical “true self” that has “considered values [and] aims,” rather than the currently existing self that has actual values and aims. The idea that the cost–benefit analyst can identify a “norm,” deviations from which are considered a “mental illness” and can justify overcoming an actor’s revealed preference, clearly shows the interventionist (and possibly illiberal) potential of cost–benefit analysis.]

But the biggest problem isn’t particular choices about how to implement the utilitarian basis of cost–benefit analysis; it’s the utilitarian basis itself. Dean Revesz answers the critique that cost–benefit analysis inappropriately commodifies human life or wilderness areas, correctly pointing out that assigning a price to life shouldn’t be understood to diminish its inherent worth. Pets, homes, and wedding rings are, after all, traded in markets. But this is still a bit too glib: the purpose of formal cost–benefit analysis isn’t just to assign a number, but to do so in order to see whether that number can be trumped by a bigger number on the other side.

Dean Revesz’s phrasing makes the moral collectivism clear: cost–benefit analysis “allows us to spend money to the point at which the last dollar spent buys one dollar of risk reduction. If we spend beyond that point, we will pay more than we receive. But if we spend any less, we forego risk reductions that are socially desirable.” I’ve added the emphasis to show how seamlessly one slips from the we who pay and receive to the we who receive and forego. But these are different groups, and there is neither a common pocketbook nor a common valuing mind. Coase notwithstanding, there is no social cost. Cost–benefit analysis legitimizes a social welfare function that treats it as unobjectionable to, without compensation, take a book from Derek, who values it at $2, and give it to Amartya, who values it at $3. But, as Ronald Dworkin asks, is the world after the transfer “in any respect superior” to the world before the transfer?

I do not mean whether the gain in wealth is overridden by the cost in justice, or in equal treatment, or in anything else, but whether the gain in wealth is, considered in itself, any gain at all. I should say, and I think most people would agree, that [the world after the transfer] is not better in any respect.

[Footnote to Dworkin blockquote: Dworkin may be pushing this point too far. Perhaps a single such transfer doesn’t make the world better off in any way, but two such transfers, one from Amartya to Derek and one from Derek to Amartya, could make both parties better off, and this would make the world better off in some way, at least to someone who thought that Pareto improvements make the world better off, other things being equal. If these two transfers make the world better off, then surely one can say that each individual transfer plays a role in making the world better off provided it’s embedded in some structure of reciprocal transfers. But Dworkin is still on to something: there’s generally no guarantee that the reciprocal transfers will take place; there’s nothing in the logic of cost–benefit analysis that guarantees that this regulation will be counterbalanced by other regulations that benefit today’s harmed parties; and today’s political losers are likely to be people without much political power, who are likely to continue to be political losers tomorrow.]

Commodification, here, isn’t the primary problem. I think commodification is great and encourage its more widespread use in the law, whether for sexual services, human organs, or human life. A basic tenet of libertarianism is self-ownership, and what’s more fundamental to ownership than transferability? Thus, preventing people from agreeing to suffer a risk of death (on any basis they see fit, including for a price) is morally indefensible. But while I favor treating most rights as commodities that can be alienated, traded, and sold, I would also insist that these commodities be treated as the property of their owners and not of society. Cost–benefit analysis asks us not only to commodify but also to transfer the right to the commodity to the highest valuer.

The Political Case: Can Cost–Benefit Analysis Be Defended Instrumentally?

Of course, even if cost–benefit analysis is theoretically incoherent, doesn’t generally provide the right answers, and can’t be justified ethically on its own terms, it might still be a good idea. But the instrumental defense of cost–benefit analysis has pitfalls of its own. I’ll examine three instrumental defenses: one from procedural rationality, one from substantive efficiency, and another from substantive morality.

First, the procedural defense. Maybe cost–benefit analysis disciplines thinking and makes it more transparent. Indeed, this is, in Dean Revesz’s view, what makes formal cost–benefit analysis better than its “crude,” intuitive counterpart, which doesn’t count costs of the politically weak and overweights benefits of the politically strong. Formal cost–benefit analysis “reveals the distortions of politics” and makes it easier for voters to, if necessary, “throw[] the bums out.”

Of course, Dean Revesz believes that the result of a neutral cost–benefit analysis will also be “more accurate,” so perhaps his transparency argument hinges on truth here. But conceivably, even those who don’t believe cost–benefit analysis is theoretically defensible could still defend it as an improvement over the undisciplined, ad hoc approach. “Just as the environmental effects of government actions must be accounted for in an environmental impact statement,” says Dean Revesz, “the economic effects should be acknowledged as well.”

This is all well and good, provided that cost–benefit analysis really does make regulatory costs and benefits more transparent. But the critics of cost–benefit analysis make a strong case that the rhetoric of cost–benefit analysis may, in fact, obfuscate and make things less transparent—providing a mere “veneer of technical precision to regulatory judgments and augment[ing] the political case for action.” This is especially true if the methods are hard to understand or if they’re not very determinate and thus subject to political manipulation. Straightforward democratic deliberation based on moral values, by contrast, can be extremely transparent.

Second, the argument from substantive efficiency. Suppose one believes there’s inefficiently much regulation and that cost–benefit analysis is antiregulatory. One could then support cost–benefit analysis as a mechanism that, whatever its faults, at least puts a thumb on the scale in the direction of restoring the efficient amount of regulation.

But for this argument to work, at a minimum, there must be inefficiently much regulation. There may be good reasons to think this is correct. For instance, self-aggrandizing administrators may want to expand their power. Or, even without any self-aggrandizement motive, risk regulators may face perverse incentives if they’re “punished when they fail to avert a risk that becomes manifest,” whereas “the costs of their rules are born[e] by regulated firms and the general public.” But there are also good theoretical reasons to think the opposite. The agency-aggrandizing hypothesis, for instance, is iffy; and agency administrators’ incentives may be reversed—in the direction of inaction—when the costs fall on a concentrated industry while the benefits are dispersed, or when the costs are borne today but the benefits accrue far in the future, as some argue is the case for global warming. One may also argue that environmental concerns will always be slighted in policy deliberation because industry is always more concentrated and, therefore, better able to organize than the polluted public. (Note, though, that both environmental and industry groups are subject to the collective action problem, and environmental organizations have organized successfully and exerted influence on policy).

Finally, the argument from substantive morality. One might think that the amount of regulation, while perhaps efficient, is nonetheless excessive for other reasons. Suppose one is a natural-rights libertarian. An efficient regulatory system may succeed in regulating all sorts of “externalities,” but not all externalities are equal. A system of rights might tell us that some externalities, like killing someone through pollution, can legitimately be addressed by government while others, like my objections to someone else’s religious beliefs, can’t. One might, of course, argue that religious freedom, or freedom of speech, or the like, is in fact efficient, and that if a cost–benefit analysis doesn’t yield that result, it just means that the analyst has insufficiently weighted the relevant liberty interests or has imperfectly understood the negative consequences of violating the rights. This may well be true, but it won’t satisfy the philosopher: a natural-rights perspective is more than just “utilitarianism properly done,” even if the two approaches would usually ((almost?) always?) yield the same result. Under a natural-rights perspective, a right can’t be violated even if everyone would agree that it would be efficient to do so. One might also argue that certain pleasures, like the pleasure of suppressing someone’s religious beliefs, shouldn’t be counted in a cost–benefit analysis. But this would be contrary to cost–benefit’s utilitarian logic; more particularly, it would imply a violation of the Pareto principle.

Add to this the natural-rights libertarian’s emphasis on economic rights as deserving of as much protection as freedom of speech or religion, and it’s not surprising that, for the natural-rights libertarian, (possibly) efficient but (nonetheless) immoral regulation is everywhere. This includes workplace safety regulation, consumer product safety regulation, safety and effectiveness regulation of pharmaceuticals, and other areas where exposure is voluntary and product characteristics should be determined by contract—as well as various noncontractual areas where people impose risk on themselves, like seat belt or motorcycle helmet mandates. (I don’t mean to categorically rule out regulation of these areas: there may be fraud at work; risks may affect third parties; or, for some reason or other, an apparently voluntary party may be incapable of consenting. But at least the natural-rights libertarian can categorically rule out considering the effect of risk on the adequately informed, consenting, sane adult as a rationale for regulation.) In this context, an antiregulatory cost–benefit analysis can serve a morally valuable function, gumming up the works and generally making it harder to enact regulations, even if the actual numbers it produces are indefensible.

But there are two problems with this approach. First, it’s blunt. The regulatory state today covers many areas that would probably be off limits in a libertarian state, but it also covers some areas that a libertarian wouldn’t categorically object to. For instance, air pollution regulation, provided it regulates true health risks in a cost-effective manner, may well be justifiable, even on a libertarian view. An antiregulatory cost–benefit analysis would thus unfortunately block both permissible and impermissible regulations.

Second, this strategy requires that cost–benefit analysis actually be antiregulatory. Here, Dean Revesz performs a valuable service in showing that this isn’t necessarily true. If he’s right—and I see no reason to doubt his conclusions as a general matter—even the instrumental use of cost–benefit analysis by natural-rights libertarians may be a bad idea.

Dean Revesz isn’t the first to argue that “neutral” economics can be proregulation—many libertarians have done so with dismay, stressing that neoclassical welfare economics can be a recipe for economic intervention. Still, libertarians have tended to go along with cost–benefit analysis; and indeed, it’s been politically useful, even in Democratic administrations. If Dean Revesz’s insights catch on in the practice of cost–benefit analysis, libertarians might have to rethink this marriage of convenience.

Dean Revesz makes the argument to environmentalists that their moral rhetoric, while politically attractive, should be merged with economic arguments because “[t]he same story can be told in many ways.” Why, indeed, shouldn’t a moral environmentalist participate in cost–benefit analysis, always appropriately beginning his remarks with: “I believe cost–benefit analysis is immoral. But since you’re doing it anyway, here are some arguments that cut in favor of environmental regulation . . .”?

This is possible. But some ways of telling the story may, in the long run, undermine one’s case. Surely one shouldn’t always participate in every available political process to pursue one’s goals. Dissidents in countless illegitimate regimes have argued that participation in indefensible processes, even though it can seem to serve one’s goals in the short run, ultimately gives moral legitimacy to the oppressor. Closer to home, it’s not always easy for political organizations or their supporters to keep conflicting messages in their head at the same time; we’re not all trained as lawyers in arguing in the alternative. Those who oppose the utilitarian basis of cost–benefit analysis might do well by participating—but they might also do well by dissenting from the sidelines, or at least (if they still participate) by not losing sight of, by always stressing, and perhaps, in this case, by rediscovering their principled dissent.

* * *

First, the questions that cost–benefit analysis asks may sometimes be simply incoherent. What’s the value of not damming the Grand Canyon or not polluting the Prince William Sound? Environmental economists have a couple of theoretical answers—“[c]ompensating [v]ariation” or “[e]quivalent [v]ariation.” For any change in the level of an environmental amenity, the “compensating variation” is the change in income that, after the change, would keep me at the same utility level. (If the change is for the worse, this is the “willingness to accept compensation” to assent to the change; if the change is for the better, this is the “willingness to pay” to obtain the change.) And the “equivalent variation” is the change in income that would lead to the same utility change as the change in the environmental amenity. (If the change is for the worse, this is the willingness to pay to avoid the change; if the change is for the better, this is the willingness to accept compensation to forgo the change.)

These two amounts are generally different, at least because of income effects, so the environmental economist has to commit to whether to use compensating or equivalent variation—basically, equivalent variation implies a property right in the change while compensating variation implies a property right in the status quo, so the choice between measures will inevitably involve some noneconomic thinking. (That valuations change based on the allocation of rights is itself a challenge to the cost–benefit approach.) But once the value-laden question of who gets the implied property right is resolved, estimating willingness to pay or willingness to accept is a “merely” technical problem.

What, then, does the economist do with an environmentalist who rejects both willingness to accept and willingness to pay? Willingness to accept might be literally infinite: “There’s no amount of money I’d accept to tolerate the damming of the Grand Canyon.” One might think that willingness to pay is more serviceable because, at least, it’s bounded above by one’s total lifetime net worth; but what if one rejects the question on moral grounds?

Practitioners of contingent valuation surveys, which try to estimate natural resource values from survey data, routinely have to deal with “protest response[s],” where respondents give a willingness to pay of zero or refuse to answer the question. These protest responses are thrown out because they don’t represent true economic valuations—at least if the subject indicates that his zero bid is a protest, not a true zero valuation. But surely the problem lies more with having to shove everything into contingent valuation mode than with those pesky moral environmentalists who refuse to state a willingness to pay. These people may really not think of an amenity in monetary terms, and if you force them to reconsider their answer (at least you can warn those who state zero that their result will be either thrown out or taken to mean a valuation of literally zero), the number they come up with may be meaningless. I may value sex with a loving partner very highly, but if the question is how much I’d be willing to pay for it, we’re now measuring a different sort of experience entirely.

With these infinite valuers, or even just with people who don’t think of the environment as something monetizable, cost–benefit analysis, in demanding some (finite) number for the value of the environmental amenity, is asking the impossible. It wants to use a number that, for some of the affected population, just doesn’t exist because for these people the very question commits a category error.

Second, sometimes cost–benefit analysis may ask a question that isn’t incoherent but may not have an objective answer, even in principle. Damming the Grand Canyon isn’t a moral issue for everyone: some people have no problem treating the services of the Grand Canyon as amenities that can be bought and sold. So we’re not being incoherent in looking for these people’s valuation. The problem here is “merely” that these people may not know, and may never know, their true valuation. (In a metaphysical sense, perhaps their true valuation may not even exist.)

One’s true preferences may or may not be a brooding omnipresence. I suppose, if one could dissect my brain, one could reconstruct my complete utility function. But that doesn’t mean that, at this moment, I know what it is. Discovering my preferences is a trial-and-error learning process. I spend $5 on pizza one night and discover that, in this context (perhaps after having eaten $5 worth of pizza last night), I don’t like it as much as $5 worth of burritos. I suddenly encounter a new and unfamiliar type of cuisine and, by trying an appetizing-looking dish for the first time, discover (or create?) a new preference.

Over time, I may get a better and better sense of what fulfills my preferences, provided my preferences don’t change faster than I learn. But I only learn this because I can experience choosing options and foregoing other options in this pizza–burrito world. At any moment, given my extensive burrito experience, I might be able to tell you the maximum amount I would pay for a burrito at that moment. But because no one’s monetary contribution has ever been pivotal in preserving the Grand Canyon—not even once—and because few have even thought about the issue, there’s no way they can give a truthful answer.

Small wonder, then, that people report essentially the same willingness to pay when 2000, 20,000, or 200,000 birds are on the line: they’re reporting a number that gives them a “warm glow,” not their actual valuation of that number of birds. Or that survey respondents report an average of about $84 to prevent oil spills off the coast of Alaska—but that when they’re asked about their total willingness to pay for a range of social programs and then asked to identify how much of that amount they’d pay for environmental protection . . . and how much of that they’d pay to protect wilderness areas . . . and how much of that they’d pay to prevent human-caused problems . . . and how much of that they’d pay to prevent marine oil spills . . . and how much of that they’d pay to prevent marine oil spills in Alaska, the average response is $0.29.

It’s not that some framings give you the correct answer while others give you a biased answer. Here, everything is framing. There is no picture inside. Even if a nonuse value of the Grand Canyon exists for some people, economists haven’t figured out a theoretically defensible way to discover it.

Third, a number may exist in principle, but in practice, economics, mathematics, and the limitations of available data mean that we’re not likely to find it. In the Grand Canyon hypothetical, perhaps someone has discovered his true valuation through introspection, but why would he reveal it rather than be strategic or seek the moral approval of the interviewer? Of course, anyone interested in preserving the Grand Canyon would be well-advised to report a high willingness to pay because no one will be actually demanding his money.

Or suppose we estimate the cost of a particular environmental risk using the wages of workers exposed to different degrees of risk—we may find, for instance, that workers in a particular industry who bear extra cancer risks due to their on-the-job exposure demand higher wages. Or we may estimate the benefit of an environmental amenity by looking at the prices of houses that have that amenity to different degrees—suppose a house with a better ocean view sells for an extra $10,000. But $10,000 is only the benefit of the view to the marginal house purchaser. It’s not the benefit of the view to the inframarginal house purchasers, who may value the view at more than $10,000; nor is it the benefit of the view to those who didn’t buy the house, who may have not bought the house precisely because, while they like views, they wouldn’t pay $10,000 for one. Similarly with occupational health risks: an econometric wage study can tell us how the marginal (mobile, informed) worker values risk, but it doesn’t tell us about the inframarginal workers, who would tend to select the job because they’re less risk-averse, or those who would never even think about working in that industry precisely because they hate risk.

Cost–benefit analysts trying to back out these costs and benefits—which, being subjective, only exist in people’s heads—from other data are essentially rediscovering the socialist calculation problem. Doing good cost–benefit analysis is easier than planning an entire economy, but the same knowledge problem that dooms the latter is bad news for the former as well. While cost–benefit analysis may look like rationality, perhaps it is merely rationalism.

I’m going to post the text of my article in installments over the next few days, though I encourage you to consult the full version on SSRN, or the version in 48 Hous. L. Rev. 79 (2011), for the footnotes. The first installment follows below the fold.

* * *

Environmental, health, and safety advocates, say Richard Revesz and Michael Livermore, have been wrongly hostile to cost–benefit analysis because of a false belief that it is biased against regulation. But the bias against regulation, while real, has been the artifact of historical accident—the domination of cost–benefit discourse by antiregulatory advocates. In fact, cost–benefit analysis, neutrally applied, can easily be proregulatory, especially in health, safety, and environmental regulation. Proregulation types should, therefore, learn to stop worrying and confidently make their case in economic terms.

Dean Revesz’s pitch is partly political: advocates of regulation should use cost–benefit analysis to better achieve their goals, even if those goals come from a moral perspective that rejects economic reasoning. “Cost–benefit analysis,” after all, “is here to stay,” and “[d]ecisions [a]re [m]ade by [t]hose [w]ho [s]how [u]p.” But he’s also speaking on an intellectual level: cost–benefit analysis is not just “inevitable” but also “desirable,” because it correctly tells us which regulations are rational.

On the intellectual level, I believe that Dean Revesz gives short shrift to important theoretical, practical, and normative arguments against cost–benefit analysis: it may not be a coherent enterprise; if it’s coherent, it may not be possible to do it well; and if it’s possible to do it well, it’s not necessarily attractive on moral grounds.

On the political level, cost–benefit analysis can be more attractive: one can happily use theoretically indefensible means to pursue political ends that one desires for other reasons. For Dean Revesz’s intended audience—regulation advocates who have been historically suspicious of cost–benefit analysis—his thesis may well be right. But it has a corollary for free-market advocates who are hostile to regulation. Free-market advocates have mostly gone along with cost–benefit analysis because of a belief that it would serve as a brake on regulation. If Dean Revesz is right—if cost–benefit analysis, neutrally applied, can easily be proregulatory—perhaps natural-rights libertarians should reconsider their tolerance of cost–benefit analysis and focus more on making their case for deregulation in moral terms.

The Intellectual Case: Does Cost–Benefit Analysis Give Us the Right Answers?

On one level, Dean Revesz’s defense of cost–benefit analysis is unobjectionable. Surely we should consider costs as well as benefits. “We live in a world of finite resources,” and “we need a mechanism that tells us when to stop spending money” to reduce risks. Surely—if we believe in weighing costs against benefits—“[c]ost–benefit analysis is that mechanism.” Indeed, for purely economic regulations, “the use of cost–benefit analysis is a requirement of basic rationality.”

But really, this is a rhetorical sleight of hand. Of course we should always do cost–benefit analysis, even if just by tallying up pros and cons on a napkin. Even free-form democratic deliberation, insofar as it considers costs and benefits to some extent, is an exercise in intuitive cost–benefit analysis. But the term “cost–benefit analysis” in the regulatory context refers to a much more specific exercise, one that assigns numerical values to outcomes and plugs them into a utilitarian social welfare function. And clearly the type of cost–benefit analysis Dean Revesz is talking about is the formal type (even though he doesn’t view it as “a master procedure” that is “capable of trumping all other values”). Formal cost–benefit analysis—which is just one of many possible implementations of cost–benefit analysis—is much more controversial, and its theoretical basis is much less defensible than the intuitive kind we do all the time.

When I teach environmental law and economics, my students usually come in, like Dean Revesz’s audience, skeptical of cost–benefit analysis. I tell them that I want to discipline their thinking on the subject, so that even if they remain opposed to cost–benefit analysis, at least they’ll better know why. I outline a number of avenues of attack, first the internal ones:

1. The questions cost–benefit analysis asks are incoherent.
2. Maybe the questions are coherent, but mathematics and econometrics can’t give us the right answers in principle.
3. Maybe we can get the right answers in principle, but the data doesn’t allow us to get the right answers in practice.
4. Maybe we can get the right answers in practice, but practitioners of the technique have been using the method incorrectly.

—and then an external one—

5. Maybe cost–benefit analysis has been correctly applied, but its results are normatively unattractive.

Dean Revesz’s approach focuses on issue number 4 and argues that the implementation problems can be solved if the new crop of cost–benefit practitioners, both in the academy and in the Office of Information and Regulatory Affairs, is just convinced to avoid their predecessors’ mistakes. But he gives short shrift to internal critiques 1 through 3 and to external critique number 5.

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

Doug Berman at the Sentencing Law and Policy blog calls it a “must read” — thanks!

What was that all about? Back in 1996 [UPDATE: actually 1994, but I publicized it in 1996], I and some friends made up a little mnemonic paragraph to remember the value of pi to 167 digits. (There may be a slight error in there; I no longer remember.) That item was picked up in a number of places, including The Scientist and Ivars Peterson’s MathTrek column.

Otherwise, I’ve never profited from this invention, so I share it with you now for free lest it be lost forever. Of course, there are a great many pi mnemonics out there, some much longer than 167 digits; see, e.g., Poe, E.: Near a Raven (740 digits), which isn’t even the longest.

In other news, if you type in “pi” in the iTunes store, you find a number of interesting songs called “Pi”, some of which sound interesting. Downloads of the day?

UPDATE: I forgot to mention Nobel laureate Wislawa Szymborska’s poem about pi. Here it is in Polish; here’s one English translation, and here’s another.

Now I like the story behind the broken window fallacy as much as the next guy. Yes, GDP might go up, but this only shows how meaningless GDP is. GDP is just, roughly speaking, the sum of prices in transactions, so anything non-market goes uncounted. If you bomb a building and then hire people to rebuild it, the bombing counts as 0 for GDP (not a negative) and the rebuilding counts as a positive; so you can bomb the building ten times and have it rebuilt each time for a super boost to GDP! But clearly, from a real point of view, you’re just using up real resources without creating anything on net. Or, in Bastiat’s terms, consider the “jobs created” by the bombing; without the bombing, that money would have been spent in other ways, perhaps creating jobs elsewhere, but that’s unseen.

Still, I’m not sure the broken windows fallacy is necessarily a “fallacy”. Yes, there are people who don’t understand the seen/unseen distinction as described above. But there are more sophisticated claims one could make, which might be true:

• The rebuilding money goes to particular people, e.g. construction workers. The money otherwise might have gone elsewhere, e.g. symphony orchestras. The spending induced by the disaster clearly has a redistributive effect, which one might consider desirable if one has particular redistributive goals.

  Yes, maybe one could accomplish those redistributive goals directly. But (1) the existing tax system may not be able to identify the same set of beneficiaries — what if your target group is not “the poor” but “construction workers”?; and (2) even if one could imagine some tax break or subsidy that would benefit exactly that group, it might not be politically palatable in the absence of the disaster. So the disaster might eliminate a political barrier that otherwise would have existed.

• The rebuilding money goes to consumption, whereas without the disaster it might have gone to savings or investment. Now savings and investment may well be good because they increase future productivity; but there’s also the paradox of thrift and, generally, the view, associated with Keynes, that consumption spending is inefficiently low during recessions. Now maybe Keynes is wrong, but I don’t have a super-strong view on that.

  And, as before, it would be better not to have a disaster but to just vote to spend the money, but there might be political resistance to this by taxpayers, libertarians, Tea Partiers, etc. So one can argue — as, indeed, (perhaps) Keynes and (definitely) some others do — that, if the only way to get that spending is to have disasters, wars, etc., then at least those events will have good economic consequences by removing the political barrier that would otherwise exist.

• Independent of the recessionary point, there might just be some productive government spending out there, like perhaps some infrastructure spending, that’s efficient regardless of whether we’re in a recession. So if the rebuilding replaces old infrastructure with new and better infrastructure, then that will be an improvement. And unlike the previous points (redistributive policy or counter-cyclical policy), this one will affect long-term growth.

  Yes, it would have been better to have just upgraded the infrastructure without the disaster, but, I think you see this coming by now, political barriers.

• David himself has suggested, in the comments to his post: “To the extent that the government is about to waste money on nonsense, say, high-speed rail from Tampa to Orlando, and a natural disaster forces the government to redirect that spending to rebuilding basic infrastructure that was in need of replacement anyway, the economic consequences of the natural disaster could be offset by the appropriate redirection of government priorities.” David thinks this is unlikely — “But more likely the government will just add new spending on top of whatever nonsense it would doing before.” — but of course that’s an empirical question.

  Here, the political problem was in a pro-government-spending direction, but it was in the direction of bad government spending, and now we’d have more productive government spending.

None of this is to deny that there is a fallacy somewhere in there: if someone seriously doesn’t understand that you have to take the resource destruction into account, that’s fallacious, and once you take it into account, it’s unlikely you’ll have anything to show for it in the end.

But if any of the above are true — if there’s a valid distributional argument in favor of the people who would get the post-destruction money; if counter-cyclical expenditure is a good idea; if infrastructure spending is a good idea and the disaster causes an upgrade; or if the disaster diverts funds from worse government projects to better ones — and if those problems couldn’t be better addressed in other ways because of political barriers, then, indeed, disasters, wars, etc., may have beneficial economic effects on net.

UPDATE: Commenter Le Poisson points out correctly that destruction of physical does get taken into account. It shows up in the national income accounts as “consumption of fixed capital”. So just ignore the GDP-related prologue to the argument.

UPDATE 2: Commenter awp points out that I was too quick in my correction, so my original version was right after all! (So I’ve uncorrected my previous correction.) GDP – consumption of fixed capital = net domestic product. So NDP falls when a building is destroyed, but GDP doesn’t. So the destruction has a zero effect on GDP, and the reconstruction is all positive.

UPDATE 3: Welcome, visitors from Instapundit, and happi Pi Day!