How Perverse Financial Exploitation Sustains America’s Mass Incarceration Problem

Mass incar­cer­a­tion — a term now entrenched in the popu­lar lexicon — is prov­ing remark­ably resist­ant to well-inten­tioned
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Photos: ACLU\YouTube

Bipar­tisan efforts to change the crim­inal justice system have gained momentum around the coun­try in recent years. Nearly all 50 states, many counties, and the federal govern­ment have sought to reduce impris­on­ment and mitig­ate its harms.[1] A remark­able wave of legis­la­tion has shortened custodial sentences and widened eligib­il­ity for sentences served in the community. States and local­it­ies have also inves­ted in rehab­il­it­a­tion and reentry services.

Yet the impact of these efforts has been relat­ively modest. While the nation’s imprisoned popu­la­tion has declined since peak­ing in 2009, incar­cer­a­tion levels remain extraordin­ar­ily high.[2] Nearly 1.2 million people are serving sentences in state and federal pris­ons, and 10.3 million are admit­ted to local jails every year.[3] Mass incar­cer­a­tion — a term now entrenched in the popu­lar lexicon — is prov­ing remark­ably resist­ant to well-inten­tioned reforms.[4]

One explan­a­tion can be found in the infra­struc­ture erec­ted to support the United States’ reli­ance on impris­on­ment as the coun­try’s primary crime control policy. Mass incar­cer­a­tion did not result simply from increased poli­cing and harsher crim­inal penal­ties.[5] Economic and finan­cial incent­ives estab­lished by local, state, and federal agen­cies also played a role. Police, prosec­utors, and correc­tions agen­cies competed for these bene­fits by escal­at­ing their enforce­ment prac­tices. Law enforce­ment came to depend on these fund­ing sources, partic­u­larly as declin­ing tax receipts and inter­gov­ern­mental trans­fers left them grasp­ing to fill budget holes.[6] These incent­ives are a persist­ent struc­tural driver of punit­ive enforce­ment and mass incar­cer­a­tion.

The perverse finan­cial incent­ives of direct federal fund­ing programs for incar­cer­a­tion are relat­ively easy to identify. So too are laws passed by Congress that encour­age more punit­ive policies.[7] This report focuses instead on an inter­lock­ing set of economic incent­ives that are more deeply entrenched and diffi­cult to unravel. These incent­ive struc­tures raise the risk that offi­cials will chase revenue rather than pursue public safety and justice, giving law enforce­ment agen­cies a stake in perpetu­at­ing mass incar­cer­a­tion. This report cata­logs some of the most corros­ive prac­tices.

These perverse economic incent­ives fall into three primary categor­ies:

  • User-funded justice. Through mech­an­isms such as civil asset forfeit­ure, fines and fees, and privat­ized community super­vi­sion, the very people subjec­ted to crim­inal enforce­ment activ­it­ies are routinely made to contrib­ute to the cost of their being arres­ted, detained, charged, prosec­uted, super­vised, or incar­cer­ated. Law enforce­ment offi­cials and agen­cies reap the bene­fits while those trapped in the system struggle to pay.
  • Correc­tional and deten­tion bed markets. Offi­cials seek­ing to alle­vi­ate prison and jail over­crowding by rent­ing space from other juris­dic­tions have created a market in incar­cer­ated people. The federal govern­ment has exacer­bated this demand for bed space, partic­u­larly through stepped-up immig­ra­tion enforce­ment. Fisc­ally distressed counties have seen this market as a solu­tion to their budget woes, often expand­ing their jails to serve it. Incar­cer­ated people, mean­while, are reduced to dollars and cents in this rent-seek­ing ecosys­tem of carceral insti­tu­tions seek­ing to main­tain or grow their oper­a­tions.
  • Enforce­ment-oriented perform­ance metrics. Police depart­ments and prosec­utors’ offices reward staff for meet­ing productiv­ity-based job metrics, such as arrest quotas and high convic­tion rates, and penal­ize those who fall short. With their job secur­ity and career advance­ment at stake, law enforce­ment offi­cials are incentiv­ized to pursue punit­ive meas­ures even when leni­ency might be more appro­pri­ate.

In recent years, poli­cy­makers have come to see how these prac­tices exacer­bate poverty, create conflicts of interest for offi­cials, and dispro­por­tion­ately harm communit­ies of color. This has helped drive progress. But reforms that target specific incent­ives in isol­a­tion can have unin­ten­ded consequences. A roll­back of fines and fees, for example, may simply drive offi­cials to increase civil asset forfeit­ures to fill the anti­cip­ated revenue gap. Propos­als to reduce jail and prison popu­la­tions by moving people into privat­ized community super­vi­sion may enrich for-profit firms while saddling people with costs they cannot afford.[8]

The array of perverse incent­ives in the crim­inal legal system makes unwind­ing mass incar­cer­a­tion extraordin­ar­ily diffi­cult. A compre­hens­ive approach will require an all-out mobil­iz­a­tion by Congress, state legis­latures, local govern­ments, and law enforce­ment agen­cies. To decrease the number of people under correc­tional control, poli­cy­makers must unravel these deeply embed­ded economic incent­ives. At the same time, dissuad­ing public safety agen­cies from prey­ing on the very people they are charged with protect­ing will require that they be adequately and equit­ably funded.

This report maps out the perverse incent­ive struc­tures that have helped perpetu­ate the United States’ overly harsh system of punish­ment and outlines reforms that can elim­in­ate, change, or realign them, moving the coun­try toward a more fair and just crim­inal justice system.

Endnotes

[1] Rebecca Silber, Ram Subramanian, and Maia Spotts, Justice in Review: New Trends in State Senten­cing and Correc­tions 2014–2015, Vera Insti­tute of Justice, 2016, 4–5, https://www.vera.org/down­loads/public­a­tions/state-senten­cing-and-correc­tions-trends-2014–2015-updated.pdf [https://perma.cc/RTB4-MSS8]. For county-level reforms, see, for example, Shan­non Heffernan, “Report: Cook County Bail Reform Reduced Jail Popu­la­tion Without More Crime,” NPR, May 13, 2019, https://www.npr.org/local/309/2019/05/13/722286868/report-cook-county-ba...­la­tion-without-more-crime [https://perma.cc/M66F-Q3FY]; Alvaro Ortiz, “Federal Judge Approves Settle­ment Over Historic Lawsuit on Harris County Bail System,” Hous­ton Public Media, Septem­ber 5, 2019, https://www.hous­ton­pub­lic­me­dia.org/articles/news/local/2019/09/05/345121/federal-judge-approves­set­tle­ment-over-historic-lawsuit-on-harris-county-bail-system/ [https://perma.cc/G4T3–6U36]; and Harris County Crim­inal Lawyers Asso­ci­ation, Amended Local Rule 9.1 (Misd Bail Policies), Janu­ary 23, 2019, https://hccla.org/member-files/amended-local-rule-9–1-misd-bail-policies-1–16–19/ [https://perma.cc/YR8M-TWSE]. In the past decade, Congress enacted two major federal crim­inal justice reform bills: the Fair Senten­cing Act and the First Step Act. See Fair Senten­cing Act of 2010, Pub.L. 111–220, 124 Stat. 2372, https://www.govinfo.gov/content/pkg/PLAW-111pub­l220/pdf/PLAW-111pub­l220.pdf [https://perma.cc/Z7ZX-EXHL]; and First Step Act of 2018, Pub.L. 115–391, 132 Stat. 5194, https://www.govinfo.gov/content/pkg/PLAW-115pub­l391/pdf/PLAW-115pub­l391.pdf [https://perma.cc/R4CA-F2EU]. foot­note2_8uw4nhz

[2] Silber, Subramanian, Maia Spotts, Justice in Review: New Trends. See also First Step Act of 2018. foot­note3_t8xst1p

[3] For prison popu­la­tions, see Jacob Kang-Brown, Chase Montag­net, and Jasmine Heiss, People in Jail and Prison in Spring 2021, Vera Insti­tute of Justice, 2021, 1, https://www.vera.org/down­loads/public­a­tions/people-in-jail-and-prison-in-spring-2021.pdf [https://perma.cc/G3XK-KCG4]. For jail admis­sions, see Zhen Zeng and Todd Minton, Jail Inmates in 2019, U.S. Depart­ment of Justice, Office of Justice Programs, Bureau of Justice Stat­ist­ics, 2021, 1, https://bjs.ojp.gov/content/pub/pdf/ji19.pdf [https://perma.cc/E8QM-7BBU]. foot­note4_251g8mt

[4] David Garland described the distinct­ive expan­sion of “mass impris­on­ment” in the United States between 1975 and the late 1990s as deriv­ing from a new regime of crim­inal penal­ties that raised incar­cer­a­tion rates on a quantum scale, apply­ing policies and prac­tices to entire categor­ies of people rather than indi­vidu­als. See David Garland, ed., Mass Impris­on­ment: Social Causes and Consequences (London: Sage, 2001). The terms “mass impris­on­ment” and “mass incar­cer­a­tion” were adop­ted by many other crim­in­o­lo­gists as well as civil rights activ­ists. See, for example, Bruce West­ern, Punish­ment and Inequal­ity in Amer­ica (New York: Russell Sage Found­a­tion, 2006); Marc Mauer and Meda Ches­ney-Lind, eds., Invis­ible Punish­ment: The Collat­eral Consequences of Mass Impris­on­ment (New York: The New Press, 2002); and Michelle Alex­an­der, The New Jim Crow: Mass Incar­cer­a­tion in the Age of Colorblind­ness (New York: The New Press, 2012). The terms were even­tu­ally even absorbed into the language of offi­cials. For example see, Pres­id­ent Barack Obama, “Remarks by the Pres­id­ent at the NAACP Confer­ence,” speech delivered at the 2015 NAACP confer­ence, Phil­adelphia, Pennsylvania, July 14, 2015, https://obamawhite­house.archives.gov/the-press-office/2015/07/14/remarks-pres­id­ent-naacp-confer­ence [https://perma.cc/XM8C-XLVJ].

[5] For a discus­sion of the increas­ingly punit­ive policy land­scape that has contrib­uted to higher rates of incar­cer­a­tion, see Jeremy Travis, Bruce West­ern, and Steve Redburn, eds., The Growth of Incar­cer­a­tion in the United States: Explor­ing Causes and Consequences (Wash­ing­ton, DC: The National Academies Press, 2014), 70–89.

[6] Heather Schoen­feld, Build­ing the Prison State: Race and the Polit­ics of Mass Incar­cer­a­tion (Chicago: Univer­sity of Chicago Press, 2018), 211–16 (arguing that the constitu­en­cies that helped grow and sustain mass incar­cer­a­tion are not likely to relin­quish their stake in it because they believe the busi­ness of mass incar­cer­a­tion “sustains live­li­hoods, grows careers and supports communit­ies”).

[7] For example, the Viol­ent Crime Control and Law Enforce­ment Act of 1994 incentiv­ized states to pass “truth in senten­cing” laws that reduced the avail­ab­il­ity of parole by prom­ising millions of dollars to compli­ant juris­dic­tions to use to expand their capa­city for incar­cer­a­tion. Viol­ent Crime Control and Law Enforce­ment Act of 1994, Pub.L. 103–322, 108 Stat. 1796, https://www.govinfo.gov/content/pkg/STAT­UTE-108/pdf/STAT­UTE-108-Pg1796.pdf [https://perma.cc/HF3Z-E6GL]. Approx­im­ately $2.7 billion was awar­ded between FY 1996 and 2001 as grants to the states and territ­or­ies for construct­ing, expand­ing, or renov­at­ing correc­tional facil­it­ies. See U.S. Depart­ment of Justice, Bureau of Justice Assist­ance, Report to Congress: Viol­ent Offender Incar­cer­a­tion and Truth-in-Senten­cing Incent­ive Formula Grant Program 1, 2012, 6, https://bja.ojp.gov/sites/g/files/xyck­uh186/files/media/docu­ment/voitis-final-report.pdf [https://perma.cc/QTG7-EZPV].

[8] Michelle Alex­an­der, “The Newest Jim Crow,” New York Times, Novem­ber 8, 2018, https://www.nytimes.com/2018/11/08/opin­ion/sunday/crim­inal-justice-reforms-race-tech­no­logy.html [https://perma.cc/BSW8–6FC3].

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