"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.