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W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014), available at SSRN.

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.

The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs.

The rise of mass incarceration may well result in part from the criminal justice system’s repeal of the law of scarcity. The problem goes beyond the fact that judges and prosecutors faced no trade-offs and thus never had to consider the wisdom of their uses of resources when sentencing to prison. Even though in some set of cases probation, diversion or other alternatives to incarceration instead of prison is cheaper, better promotes public safety, and is less traumatic to the community, local officials have every reason to use these them sparingly, because they are generally required to pay for them. In these cases, free prison is costly and counter-productive.

Professor Ball proposes to give the counties trade-offs in a highly non-coercive way.   One alternative is block grants based on crime rates. “Localities would receive funds based on reported rates of violent crime and would be free to spend these monies on prison, diversion, jail, or anything else. The state would continue to administer prisons but would charge counties for every prisoner they sent.”

Under this scenario, prosecutors and judges would face very different choices than they do now. It is one thing to spend millions prosecuting and incarcerating marijuana users and sellers if it is that or nothing; perhaps because it is free, a tough-on-crime judge or prosecutor might find it reasonable to send a three-strike defendant to prison for 25 years or life for shoplifting. But if instead the county could use that money to hire more police, probation officers, or teachers, elected officials would be compelled to confront the trade-offs involved in draconian sentences.

Whatever the details of the system, Professor Ball argues that localities should be forced to bear the consequences of their choices. They need not, he emphasizes, reduce incarceration rates. Police, prosecutors and judges would retain their current discretion; they would be free to impose, for example, even longer sentences on even more people than under the current system. But they would have to find the money, raising revenues or cutting services elsewhere, and they would be politically accountable for their choices. As Professor Ball explains, “[t]he average person could more easily spot the linkage between increasing numbers of prisoners and, say, a decrease in the frequency of road repairs or a shorter public school year, allowing political checks on criminal justice to operate more effectively.”

Of course, there would likely be political objections from those who benefit financially from the wasteful decisions encouraged by the current system.   But it is hard to identify principled objections. Under Professor Ball’s proposal, counties could have the criminal justice system they want and are willing to pay for. They could decide whether mass incarceration is the best use of county funds or if other programs and expenditures should have higher priority. And local governments would be encouraged to innovate to protect public safety in more cost-effective ways. Whatever their effect on incarceration rates, these changes can only improve the criminal justice system.

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Cite as: Gabriel "Jack" Chin, Ending the “Correctional Free Lunch”, JOTWELL (January 14, 2015) (reviewing W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014), available at SSRN),