This is the third in a series of posts in which I’ll be serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. The first post in the series is here (I recommend reading it for an overview of the entire paper), and the second post is here. Many of the comments to past posts are addressed in this or later installments (though if you want to know everything immediately, with all the supporting footnotes, you should look at the full version on SSRN). Also, I see that many commenters are making the casual assumption that I’m in favor of the scheme I’m laying out; note, though, that I don’t make such a claim anywhere in the paper.
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.