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March 10, 2017

"Why Prison?: An Economic Critique"

The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:

This Article argues that we should not imprison people who commit crimes.  This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system.  Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.

Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses.  It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs.  The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently.  It concludes that there exist economically superior alternatives to prison available right now.  The alternatives are practicable.  They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.

This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.  Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective.  But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns.  That question is outside the ambit of this paper.  The alternative system can also be criticized on practicability grounds.  But upon close investigation, such criticisms lose much of their force.

March 10, 2017 at 09:24 PM | Permalink


My very first post to SL&P was a method for mostly doing away with prisons. Of course, my method would do so by executing most convicts.

"Productive employment" requires an ability to trust the worker. I suspect that for the vast majority of folks who manage to reach prison that trust would be misplaced.

Posted by: Soronel Haetir | Mar 10, 2017 10:15:47 PM

How old is Peter Salib, 12? Has he ever met a criminal? Put them to work, you will lose the business to his crimes, to his misconduct against customers, and to his disruptive behaviors. Each is a natural disaster generating $millions in losses each year kept alive.

Mr. Salib, hire them to clerk for the judge who hired you. Make one your colleague. Hire one of each, a member of the Aryan Nation, and one from the MS13 organization. No doubt they would love to work along side of you, right there in the Federal Court. Show the class how it is done.

Here is a sure fire way to achieve his goals. Go Duterte. Kill them all, from the youngest age palatable to society, e.g. 14.

The Department of Justice should be putting a $billion into CASPR/cas9 technology, to fix the congenital defects that lead to crime in the criminal and in all future spawns, and into mRNA technology to replace the missing proteins that result in addictions, and in criminality.

Prof. Berman, are you pranking, us with this article from the Lawyer Denier Planet? You are such a card.

Posted by: David Behar | Mar 10, 2017 10:30:00 PM

Everything argument is true if one only grants its premises..

"It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs. '

Except that is not the purpose of a criminal justice system. I don't give a damn about total social costs...I care about shifting the burden to the other guy. It is MY costs that I care about not some abstract notion of "total social costs".

Posted by: Hinky Pinky | Mar 11, 2017 12:47:53 PM

"Of course, my method would do so by executing most convicts."

Of course, few people want to execute the over one million people this would require.

"According to the US Bureau of Justice Statistics (BJS), 2,220,300 adults were incarcerated in US federal and state prisons, and county jails in 2013"

I gather as well that a sizable number of these people -- many who are working in some fashion in prison itself -- can provide productive labor outside, lots of jobs not requiring too much wherewithal as it is. We are talking here on some basic fashion on a raw pragmatic level. For those who as a matter of morality think people who commit theft should be executed, that would be another matter.

Posted by: Joe | Mar 11, 2017 1:00:05 PM

"Except that is not [in my view] the purpose of a criminal justice system."

Fixed it for you.

Posted by: Joe | Mar 11, 2017 1:01:57 PM

Although this country shamefully incarcerates a higher percentage of its citizens than any other civilized country, (as if Americans are the most criminally-prone persons on the planet), I find the complete eradication of prison to be nonsensical. I have sat next to quite a few clients who by their conduct and thought processes showed that they were completely unsafe to be around any other person outside of the structured existence inherent in a correctional facility. As our resident alien would likely say, "let the freed inmates live next door to the writer."

Posted by: MarK M. | Mar 11, 2017 7:57:20 PM

I would agree with the author that the argument he presents, on the basis of economics, is an essential element of any discussion about incarceration. The loss to the wealth of the USA in terms of productive capacity, the real costs of prisons and imprisonment, the indirect costs caused by the damaging effects of separation on family members, and the costs caused by the lack of preparation and support of inmates re-entering society - these are greatly disproportionately high against the overall gains of excessive incarceration (both of itself and in terms of length). However, I would take issue with the seeming acceptance (whether in fact or for the purposes of the paper) of this statement: .... it is outside the scope of this paper to consider whether achieving optimal deterrence by imposing distress—physical, psychological, or otherwise—is ultimately morally justifiable. Rather, insofar as such
impositions are a central feature of our current system of criminal punishment, THIS PAPER ASSUMES THEIR NECESSITY." (my caps). It is certainly true that these impositions are widely tolerated - I know of no clause in the criminal law or Constitution that either specifies such as a requirement, or excuses it. Indeed it would be extraordinary if there were (accepting that the death penalty is an obvious extreme and notable exception). And of course, it is this difference of practice that distinguishes incarceration in much of the US with the best and progressive practices and thinking in Europe for example. It can certainly be argued that both approaches are taken too far, but that leaves a middle way that while would take time and investment to implement, would also give opportunities to re-balance the economic costs outlined in the paper.

Posted by: peter | Mar 12, 2017 6:09:19 AM

This paper is a misleading attempt to transfer funding from rural prisons to urban social welfare budgets.

Think about the value of damages in torts if I intentionally pistol whipped you, pulled you out of your car, and resold it to a chop shop for $3000, the fee charged for their ordering it.

Multiply the value of that crime by 200 a year per violent criminal multiplied by a million busy criminals. Say you could get $10,000 for those damages. These do not include the drop in value of real estate for all blocks surrounding the location.

So each criminal generates$millions in losses a year. The cost of prison is one of the greatest bargains in all human activity. Spend $50,000, save $50 million a year.

Did Salib include that arithmetic in his analysis?

Posted by: David Behar | Mar 12, 2017 2:12:19 PM

Is there any support for this suggestion?

The secretary of Prof. Berman informs the authors of the SSRN articles he is posting. In a standard email, they are invited to read the comments, and to address them if they wish.

In another post, such a reply by an author indicated a point was addressed at the end of the article. I found that useful.

Posted by: David Behar | Mar 12, 2017 9:51:11 PM

In my opinion: Prisons are necessary for Corporations because the Courts are Corporate. White collar crime and Government Employee crime is very harmful to the people. The same goes for the habitual criminal that kills.

All other cases should go before a common Law court in the community.

Posted by: LC in Texas | Mar 13, 2017 5:37:02 PM

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