David R. Henderson  

Distorted Incentives for Prosecutors

Two ways of thinking about eco... The Henderson Misery Index...

You get (more of) what you (don't) pay for.

When a local prosecutor sends a convicted felon to prison, the cost of keeping him locked up--an average of $31,286 per year--is paid for entirely by the state, not the county where the prosecutor holds office. The problem with this setup, some argue, is that prosecutors end up enjoying a "correctional free lunch," meaning they can be extremely aggressive in their charging decisions without having to worry about how much it will cost the local taxpayers who elected them. If prosecutors were forced to take the cost of incarceration into account, the theory goes, there might not be 1.36 million people in America's state prisons.

This is the first paragraph of an excellent piece in Slate on the distorted incentives that prosecutors face. The piece, by Leon Neyfakh, is titled "How to Stop Overzealous Prosecutors."

Of course, if the locals pay all the costs of an incarceration, you might get "under zealous" prosecutors. Why? Because the benefits of prosecution don't all flow to the locals. Some of the benefits arguably go to people in other parts of the state and, maybe, other parts of the country.

I don't worry about this incentive in the other direction, though, when I look at police behavior and D.A. behavior. I think the downside from too few prosecutions is much less than the downside from too many. It seems unlikely that prosecutors would substitute by prosecuting more marijuana crimes and fewer murders.

As almost anyone who looks at the criminal justice system in America (and I use the word "justice" loosely) can see, it's what my military officer students call a Charley Foxtrot. The Justice Department report on Ferguson's system as a revenue generator rather than a justice seeker was highly informative. (See pp. 9-15 of the report.)

I do have one problem, though, with the proposal from W. David Ball that the Slate author mentions. Neyfakh writes: "Ball argues that states should take the money they're currently spending on their prison systems, distribute it among counties based on their violent crime rate, and allow local decision-makers to spend it as they see fit." Professor Bell is proposing that the more violent crime a county has, the more money it would get. Do you see a problem?

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COMMENTS (11 to date)
Blakeney writes:

I see a couple of problems, though neither may be the problem you're thinking of.

First, Ball's proposal presumes that the current statewide funding level for the prison system is the right level. This funding has historically been driven by the "demand" of local prosecutors who, as you point out, are not paying for the "services" demanded, so there's every reason to think the funding level is higher than it would be if local governments had to pay for imprisonments out of their own budgets (NOT out of some lump-sum handed down from the state).

Turning, for reference, to every single government agency in all of human history, I would predict that local prosecutors under Ball's proposed system would find crimes to prosecute, to the precise extent of their annual state allotment, no matter how large the amount. This is definitely not a recipe for reducing imprisonment.

Second (and this may just be a matter of careless wording), not all crimes are violent. If this godawful proposal were to be implemented, there should be some allowance for fraud and other white-collar crime.

Blakeney writes:

And another thing... The local prosecutor who most successfully suppresses crime in his city or county is rewarded with a budget cut? Brilliant!

BillD writes:

How is "policing for profit" not a "conservative" issue? It would seem to be an easy (and right) way of broadening their appeal.

john hare writes:

More violent crime equals more funding, we'll import criminals if we have to.

LD Bottorff writes:

I'm pretty sure that even if local governments had to pay for the prisons, prosecutors would still prosecute vigorously. Their reputations are made by being tough on crime, not tough on budgets.

Brad writes:

Prosecutors will be prosecutors, and this policy change would, at best, effect things on the margins. When the state outlaws a million things, a burgeoning prison population is the predictable result. The only sure way to correct this situation is to decriminalize non-violent activities.

Andrew_FL writes:

The only time the cost of incarceration should be relevant to the question of whether to aggressively prosecute someone is if either A) It's a petty crime or B) It's something that shouldn't be illegal in the first place.

I don't think any reasonable person, for example, would regard it as relevant to the decision to prosecute a murderer how much it will cost to imprison him. Of course, there are other ways, with heinous crimes, of keeping incarceration costs down: keeping a murderer fed and clothed and housed for life in prison is very expensive, the death penalty is relatively cheap. But if you have moral objections to the death penalty, you could argue that incarceration costs shouldn't come into consideration here, either.

On the other hand, for non-violent drug crimes, the decision whether to prosecute or not still shouldn't hinge on the cost of incarceration, since it shouldn't be something prosecuted in the first place. In the above case incarceration costs were irrelevant because the answer to the question "Prosecute?" was always yes. In this case, it's irrelevant because the answer should always be no. But since we do prosecute for drug crimes, I'd be okay with it being taken into consideration. They're making the decision for the wrong reasons, but it will increase the frequency with which they make the right decision.

Petty theft is probably something worth taking the cost of incarceration/prosecution into account in the decision making process. But petty crimes usually carry relatively light sentences, I don't know how much money you'd actually save, or how much you'd actually reduce the prison population by by doing so.

hanmeng writes:

You get less of what you have to pay for. Apologies if this has already been mentioned: The Price of Death - Why capital punishment cases are in steep decline, even in Texas.

Andrew_FL writes:

@hanmeng-Ah, good point, it's not just the cost of incarceration, but the cost of prosecution itself. Though, it's rather hard to say whether you gain or lose in the long run if you replace the death penalty with long prison sentences-partly because you have to decide on the appropriate discount rate.

Has anyone studied this thoroughly, I wonder?

mico writes:

"Professor Bell is proposing that the more violent crime a county has, the more money it would get. Do you see a problem?"

The solution you are proposing here sounds very much like the creation of fluid areas where there is a lot of crime, very little legitimate income, and therefore very few resources to counter crime. This will create a vicious cycle as the legitimate productive citizens flee. These places will become no-go areas and essentially cease to be ruled by the United States, in the sense that its laws will no longer be enforced there, and private militias that emerge there to enforce some other law will no longer be opposed by the United States.

Applied to places like Ferguson it reminds me a lot of the South African plan to create Bantustans.

Phil writes:

This theory was tested in California when AB109 realigned prisoners from the state penitentiaries to the county jails in response to the Supreme Court decision mandating reduced overcrowding.

The fear was that the influx of costs on the counties would result in an increase in felony convictions to push more prisoners back to the state level. The post-mortem studies of the prison realignment did not find any evidence that occurred.

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