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March 6, 2017

"Rationing Criminal Justice"

The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas.  Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities.  Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions.  Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.

Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps.  As these tools highlight, scarcity often works not as a bug but as a design feature.  Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture.  But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 6, 2017 at 08:51 PM | Permalink


"Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions."

There are 20 million crimes and 2 million prosecutions.

Posted by: David Behar | Mar 6, 2017 11:18:54 PM

Immunity grows an entire enterprise, not just a defendant. Liability shrinks an entire enterprise, not a defendant.

Anyone seeking to decarcerate, to reduce prosecutions, to reduce regulatory burden should support making all government subject to tort liability. I am prepared to repeal the Eleventh Amendment. Short of that, one may reverse the Supreme Court decisions distorting the language of that Amendment to protect states from liability to their own citizens. Any originalist to be seated on the Supreme Court should be asked about that important question, and not just about abortion.

That Amendment had that protection only from the claims of the citizens of other states. Its origination is illegitimate. It was hastily passed to prevent creditors from collecting money legitimately owed to them by a state issuing phony bonds. Like so many Clauses, it protected a huge scam. Other scams immunized by our lawyer written constitution include the religion clauses (give us money now, and you will be rewarded after your death - how is that for a scam?), and the press clause (worthless, freak news, not for inform responsible voters, but to deliver eyeballs to advertisers).

Posted by: David Behar | Mar 7, 2017 6:32:32 AM

criminal justice is fragmented ... as isolated, short-term transactions ... not broader, long-term, and aggregate effects

Posted by: Gary Goodman | Mar 10, 2017 12:06:13 PM

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