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Prison overcrowding

J. FRED GIERTZ Institute of Government and Public Affairs and Department of Economics, University of Illinois, Urbana, IL 61801 PETER F. NARDULLI Institute of Government and Public Affairs and Department of Political Science, University of Illinois, Urbana, IL 61801

1. Introduction

Prisons are overcrowded. In almost every state, the prison population ex- ceeds the capacity for which the prison system was designed. This situation has led many observers to the conclusion that state governments are de- voting insufficient resources to this aspect of the criminal justice system. Even in the current period of fiscal austerity, many states are undertaking ambitious public investment programs to expand prison capacity.

It will be suggested here that the problem of overcrowded prisons is the result of two sets of factors which have combined in recent years to create the current crisis situation. First, there is a basic misalignment of respon- sibilities between local and state governments. While citizens and officials of local governments are the primary beneficiaries of the services provided by the prison system (and are also responsible for determining prison admis- sions), these services are provided by state government at virtually a zero cost to localities. It is not surprising that the incentives created in this en- vironment lead to the misallocation of prison resources.

In addition, several changes in the criminal justice system in recent years have accentuated this misalignment problem and resulted in overcrowding. These factors include: (1) an effective reduction in prison capacity relative to the crime problem as a result of court-ordered rules mandating improved prison conditions as well as limited prison construction during the 1970s and (2) a trend toward longer sentences reflecting a reaffirmation of the value of punishment and a movement toward more determinate sentences and restrictions on early release, thereby reducing the ability of prison ad- ministrations to deal with overcrowding problems.

This paper will first detail the nature of the misalignment of respon- sibilities between local and state government and the inefficiencies that result. Then, the effect of recent changes in the criminal justice system and their interaction with the misalignment problem will be examined. Finally, possible short-run and long-run changes will be suggested, which would both improve the use of existing facilities and guide public investment deci-

sions about the expansion of prison capacity. While the general issue of in- centive problems discussed here is well known in the literature, its ap- plicability to the question of prison utilization has been completely overlooked. For this reason, the analysis presented in this paper will be policy oriented and non-technical.

2. The problem

A fundamental tenet of the fiscal federalism literature is the advantage of the decentralized provision of governmental services where an optimal-sized jurisdiction captures the benefits of a service while at the same time bearing its full cost. In such a situation, strong incentives exist for decisionmakers to engage in a careful weighing of the benefits versus the costs of their ac- tions. This contrasts with a more centralized arrangement where the benefits of a particular activity accrue to one group, while the costs of the service are shared by a much larger entity. In such a situation, the small jurisdiction (often one of many small groups) receiving the benefits has less incentive to economize on the use of the service since it is bearing only a small fraction of the total cost of providing the service. This distortion of the benefit-cost calculus is one of the major weaknesses of the centralized provision of governmental services.

In the criminal justice systern, the sentencing to prison of criminals con- victed to offenses is directly beneficial to officials and citizens of the jurisdiction where the offenses are committed. The police, prosecutors, and judges (whether elected or appointed) are all, to one degree or another, re- sponsive to the interests of the citizens of their local jurisdictions. Pro- secutors are often criticized for not being more aggressive in their endeavors (e.g., the use of plea bargaining), while judges are often reproached for le- niency in their sentencing decisions. The pressure for harsher sentences at the local level is largely in one direction. Lengthier incarcerations (be they motivated by retribution, the desire to get the criminals off the streets or the hope of deterring prospective criminal activity) are frequently viewed as benefiting a community - for real or imagined reasons - and as such will be used to exert strong pressures on the actors in the criminal justice system.

It should be noted that in almost all states, the police, prosecutor and judges are either directly or indirectly responsible to a local constituency. At the same time, the prison system in most states is operated and financed at the state level. While local jails exist in most areas, states usually require that sentences over a certain length (often one year) be served in state facilities at the state's expense. The result is a situation in which local of- ficials, who usually derive utility from lengthier sentences, treat the service as basically a free good. Obviously, the penal system is anything but a free

good from the standpoint of the state. In fact, it is an extremely costly, resource-using activity.

With these perverse incentives, it is not surprising that prison space is not allocated efficiently. On one hand, local officials have few incentives within the criminal justice system that encourage the efficient utilization of existing prison facilities. At the same time, decisionmakers at the state level must react to quite different incentives as they make investment decisions.about the proper size for the prison system in a state. While they derive little direct political benefits from greater incarceration rates, they do have to bear the political costs of caring for prisoners through higher taxes or the diversion of resources from other state programs.

While most states have a constitutional mandate to provide prison facilities, state officials have little reason to build a prison system that is large enough to satisfy the demands placed upon it by the courts. The provi- sion of adequate prison facilities is obviously much less popular with citizens than is the meting out of stiff sentences for convicted criminals. Fur- thermore, it would clearly be an inefficient use of state resources to provide a system large enough to do so, since local governments are not forced to compare the benefits with the true costs of incarceration in their sentencing decisions.

Since the misalignment of responsibilities between state and local govern- ments is of long-standing, the question arises as to why the problem of over- crowding has become a major issue only very recently. The answer is that several changes have occurred in the criminal justice area which have made the problem more severe and resulted in the current overcrowding crisis. First, prison capacity has been effectively reduced in many states by court orders attempting to improve prison conditions such as the elimination of double-celling. In addition, prison capacity was not increased during the 1970s to keep pace with demographic changes. This is a result of both the high cost of new prison construction (related to mandates about prison stan- dards mentioned above) and the loss of faith by many people during this period in the value of incarceration.

In recent years, however, incarceration as a response to the crime problem has gained renewed favor. As Alfred Blumstein (1983: 233) states: 'The political environment has also changed. The liberal perspective that em- phasized rehabilitation has given way to a new emphasis on punitiveness, reflecting a pressure for greater retribution and an increased desire for crime control.' This has resulted in a trend toward longer and more determinate sentences. This change has put even more pressure on an already inadequate prison capacity in most states.

The move toward determinate sentences with restrictions on parole and other forms of early release has severely reduced the flexibility of prison ad- ministrations to respond to changing demands. Traditionally, states were

able to deal with the misalignment problem and the lack of control over ad- missions by using early release programs. While they could not determine prison admissions, they exercised considerable discretion over discharges. This was the means by which a rough equilibrium in prison populations was maintained and major overcrowding problems avoided, (the use of early release as a device for controlling prison population is developed by Berk, Messinger, Rauma and Berecochea, 1984). With the advent of longer and more determinate sentences, states can no longer control either admissions or discharges (at least to the degree that they could in the past). This clearly has accentuated the problem of the misalignment of responsibilities between state and local governments and has precipitated the current overcrowding

crisis. The division of responsibilities among various segments of the criminal

justice system leads, as the above paragraphs clearly show, to the overutili- zation of existing prisons facilities in the short-run and with incentives for the longer-run decision concerning the proper size for the prison system am- bivalent at best. The overcrowding in prisons should, therefore, be viewed as a natural consequence of the structure of the criminal justice system, not as an indication of the magnitude of the crime problem or the need for more prisons.

Evidence abounds of the overcrowding problem. By one measure, over 58% of all state prison units were overcrowded in 1979. (U.S. Department of Justice [1982]. Sourcebook of CriminalJustice Statistics 1981, Tables 1.73 Ind 1.76.) Many states are under court orders and decrees because of overcrowded conditions. The problem of improper incentives in sentencing, however, goes beyond overcrowding.

Even with more determinate sentences, states still attempt to deal with overcrowding by using various types of early release programs to create space for incoming prisoners. At this stage, local officials have little control over which prisoners are released early. To the extent that sentences im- posed at the local level are subject to modification downward by the prison bureaucracy, there is no assurance that the considerations which affect early release are the same as those involved in the initial sentencing. For example, deterrence of future criminal activity (not necessarily by the same person be- ing sentenced) may be an important factor in the judge's determination of the appropriate sentence for an offender. This is seldom a consideration, however, in the early release decision which tends to concentrate on such thing as behavior while in prison. This suggests that the inefficiencies in- volved go beyond increased incarceration costs to the state government and the overcrowded conditions in prison. The state's response through early release may actually thwart the efforts of local criminal justice officials.

3. A realignment of responsibility

One response to the inappropriate incentives that exist within the criminal justice system would be the complete decentralization of the penal function so that localities would be required to make their own arrangements for punishment. However, this would likely create other problems, both legal and economic. A decentralized arrangement would require major constitu- tional changes in many states. In addition, there are clearly positive inter- jurisdictional externalities arising from the punishment of criminals which would probably not be internalized effectively with decentralization. Economies of scale in the provision of prisons may also encourage more centralized arrangements. While the economies of size in prisons could be captured by an alternative arrangement such as the cooperative provision of facilities by several local governments or by contracting services, there may be legal impediments limiting their use. Finally, the centralized provi- sion of prison space may serve a valid redistributional role (albeit often inef- ficiently) among various regions within a state. For these reasons, the com- plete elimination of state involvement is neither possible nor desirable.

A more appropriate response would be to continue the role of the state in the provision of prisons, but with a more rational set of incentives for the local officials involved in the sentencing process. Under most current prac- tices, the surplus of prisoners is managed within the prison bureaucracy at the state level through overcrowding and/or early release since there are few controls over entry into the prison system. To deal with this problem, the effects of the sentencing decision must be brought to bear on local officials. This would entail both a short-run and a long-run response.

A Short-Run Response. In the short run, prison capacity is fixed (i.e., no additional space can be added), so the problem is to use the available space effectively. One relatively simple (although incomplete) response would be for the state to allocate available prison space to various local courts. This space in turn could be suballocated to individual judges. Judges would then be faced with the traditional economic problem of making choices under scarcity. Within the limits of the law, a judge would have to determine sentences knowing that a harsher sentence for one offender would imply a lighter sentence for another. This would encourage a more efficient utiliza- tion by the judge of the available space in prisons.

In addition, it might also encourage the prosecutor's office to weigh more carefully the sentencing decision. Within the constraints faced by the judi- ciary, the prosecutor would realize that pressing for a harsher sentence in one case would have implications for other cases as well. Local officials (judges and prosecutors) might also be brought into the early release deci- sion. Within the constraints of the law, a judge might reduce the sentence of an offender previously convicted and serving time to free up space for

those currently being sentenced. This would encourage a more careful analysis of the early release decision as compared with current procedures.

An obvious question that would have to be addressed concerns the dis- tribution of available prison space among jurisdictions. As with the geo- graphical distribution of any public good, there would inevitably be con- flicts over the distribution formula. Should prison space be distributed on the basis of population (which would favor low crime areas) or on the basis of the level of criminal activity? This problem is really very little different from the question of how to allocate school aid, police patrol forces and many other public services among various geographical areas. Obviously, the final distribution formula would be basically a political decision. Re- gardless of the precise formula, however, there is every reason to believe that this would lead to a more effective use of prison space than does the current arrangement. Variations of this scheme might allow judges to save back space or to engage in exchanges with other jurisdictions similar to marketable pollution rights in environmental decisions.

The scheme presented here would force decisions to be made in the sen- tencing process where both the benefits and the opportunity costs would have to be weighed by a single entity, the judge, at the time sentences are imposed. This is obviously not a perfect solution to the problem of the effi- cient utilization of space. Judges cannot be assumed to behave omniscient- ly. They would still be subject to the same factors mentioned above in making their decisions; but in this situation, they would also have consider- ably stronger incentives to consider the impact of their decisions. In addi- tion, such a plan could be implemented rather quickly and easily once the procedure was approved at the state level. (This type of scheme could also be used to allocate scarce jail space at the local level.)

A Long-Run Response. The long-run decision about prisons involves both the efficient use of existing facilities and the public investment decision about the size of the prison system. The incentives for these decisions could be improved by making local jurisdictions responsible for at least some frac- tion of the cost of caring for the prisoners they sentence. This procedure would involve not just the judiciary, but also local bodies with taxing authority.

While more details of such a scheme will be discussed below, it is clear that such a plan would improve resource allocation at both the state and local levels. With local jurisdictions paying a substantial share of the cost of incarceration, they would be encouraged to make a more careful decision concerning the allocation of resources within the criminal justice system. The value of incarceration would have to be compared with other alter- natives such as greater expenditures for police or social services. In addition, local jurisdictions would be encouraged to explore other forms of punish- ment. Clearly, the sentencing decision would be more carefully considered.

Furthermore, the state would receive clear signals concerning the appro- priate size for the prison system.

This sort of plan would not yield a completely decentralized sentencing process or put prisons on a self-financing basis from the state's standpoint. It is very likely that the charges levied on the local jurisdictions by the state would not and should not cover the full cost of providing prisons. First, it is not just a local district that benefits when an offender is sentenced. It would be quite appropriate for the state to recognize this positive externality by subsidizing a portion of the cost of incarceration. Second, redistribu- tional considerations may also lead to the state's involvement in prison funding. Certain areas are likely to have particularly acute crime problems and/or low incomes, so a case could be made on redistributional grounds for the state to pay at least a portion of the costs for imprisoning offenders.

In designing a program, the rationale for state involvement should be an important factor in dictating the form of state aid. If the reason is positive externalities created among districts by sentencing, the appropriate form of state subsidy would be a reduction in the cost to the local governments of incarcerating prisoners in state facilities, i.e. a price subsidy. However, if the aim of state involvement is redistributive, revenue sharing or some type of block grant for the local criminal justice system would be more ap- propriate. This would encourage the efficient utilization of prison facilities as compared with other options available to deal with crime.

Once such a pricing scheme was established and accepted, it would gener- ate signals that could guide investment decisions about the construction of new prison space. If there were excess demand from local governments for prison space (given an appropriate pricing scheme), this would be a clear in- dication of the need for more space. This obviously is not the case currently where the excess demand for space is largely a function of its zero price.

4. Concluding remarks

The analysis presented here suggests that traditional arrangements by which states provide prison space at zero cost to local governments leads to over- crowding. It is suggested that schemes that force local governments to bear at least a portion of prison costs would lead to a more effective allocation of resources in this area.

It should be noted that the plans suggested here are not put forward as a panacea for the problem of crime in our society. It would, however, at least in a small way, lead to a better use of resources in the criminal justice system. In addition, this analysis should not be viewed as a rationale for either the harsher or more lenient sentencing of offenders. It only suggests that the benefits and the costs of sentencing be brought to bear more directly

on the individuals and institutions making the decisions. Similarly, it is not an argument for either larger or smaller prison capacity - only a suggestion for making better decisions about prison space.

While the responses suggested here are relatively simple and straight- forward, there are likely to be substantial difficulties in their implementa- tion. It would, at a minimum, require legislation in most states to revise in- tergovernmental relations within the criminal justice system. Some states might well require constitutional changes to bring about the more thorough- going changes. In addition, any decision in this area would not be based solely on the merits of possible reform from a resource allocation stand- point. Obviously, in any such rearrangement of functions, many individuals would lose; others would gain. Since the decision is clearly political in nature, it is difficult to predict whether such changes could be easily accom- plished. In any case, however, there are important gains to be realized from a movement to a more rational set of incentives for the utilization of prisons.

REFERENCES

Berk, R., Messinger, S., Rauma, D., and Berecochea, J. (1983). Prisons as self-regulating systems: A comparison of historical patterns in California for male and female offenders. Law and Society Review 17 (4).

Blumstein, A. (1983). Prisons: Population, capacity, and alternatives. In J.Q. Wilson (Ed.), Crime and public policy. ICS Press.