Defunding State Prisons

March 11, 2013 | W. David Ball, Assistant Professor, Santa Clara School of Law

W. David Ball is an Assistant Professor at Santa Clara School of Law and the Co-Chair of the Corrections Committee of the American Bar Association. His research focuses on the policy and law of sentencing and corrections and has been published widely, including in the Columbia Law Review, the Stanford Journal of Law & Policy, and the American Journal of Criminal Law.

W. David Ball is an Assistant Professor at Santa Clara School of Law and the Co-Chair of the Corrections Committee of the American Bar Association. His research focuses on the policy and law of sentencing and corrections and has been published widely, including in the Columbia Law Review, the Stanford Journal of Law & Policy, and the American Journal of Criminal Law. He received a JD from Stanford, a BA from UNC-Chapel Hill, where he was a Morehead-Cain Scholar, and a BA/MA from Oxford, where he was a Rhodes Scholar.

I want to thank NCCD for allowing me to blog about my recent article, “Defunding State Prisons.” It is the third article in what I call my “correctional free-lunch trilogy” (and what my friend Giovanna Shay has called the best trilogy since Star Wars). The idea of the correctional free lunch comes from a book by Frank Zimring and Gordon Hawkins (The Scale of Imprisonment), in which they note that states subsidize prison usage but typically do not subsidize other criminal justice interventions. Put another way, prison usage is “free” to a locality in ways that, for example, probation usage typically is not. In “Defunding State Prisons,” I explore what might happen if the state stopped subsidizing prisons, and, instead, began subsidizing criminal justice on the basis of violent crime itself. To use a medical analogy, my proposal would be like giving counties a budget to treat illnesses instead of just giving them unlimited money to spend on one particular treatment (say, chemotherapy). I have been exploring the ramifications of this idea in a series of papers, so before talking about “defunding” specifically, I’m going to situate the article within the rest of my research and publications as a means of explaining why the article comes out the way it does.

The genesis for this work came from the two years I spent as a research fellow at the Stanford Criminal Justice Center. My project was about data and operations integration in the California criminal justice system (memorialized in an article I wrote for the Stanford Law & Policy Review). One theme that emerged from this work is the idea that California is not so much a single state as it is a collection of smaller governmental entities, each with its own processes and policies. Although California is uniquely populous (and complicated), the same phenomenon exists in other populous, heterogeneous states. While California has a single criminal code, to a certain extent no “statewide” criminal justice system exists both because practices vary so widely across the state and because the criminal code itself is expansive enough to allow for a wide variety of discretionary outcomes. At the same time, the state prison system pools the outcomes of local decisions. Given this lack of consistency on the input side, why would states pay for prisons?

This is the very question I sought to answer in the very first article in the trilogy, “Why Should States Pay for Prisons, When Local Officials Decide Who Goes There?” Looking at the question from the perspective of political economy and history, I wanted to figure out why states started paying for prisons in the first place, given that they had so little control over the inputs into the system. The political economy of state prison subsidies doesn’t make much sense: most of the actors who implement criminal justice policy are elected locally (or answer to local politicians), so there is no statewide democratic accountability for law enforcement. On the historical side of the ledger, state prisons are a relatively recent phenomenon: until the mid- to late 19th century, most prisoners were held in local facilities. State prisons were built not out of a desire to punish more effectively, but out of a desire to professionalize and reform incarceration. At the same time, the profits from prison labor meant that, at least initially, prison provision and prison subsidies were separate concerns.

As I presented this paper in various law school settings, I kept getting the same feedback: the answer to my question was that states subsidized prisons because prison usage was “obviously” the result of crime. To me, of course, this was not obvious, as so many others have demonstrated on the state and national levels. Nevertheless, I put “Why Should States Pay?” on hold and wrote an empirical paper, “Tough on Crime (on the State’s Dime)” that examined—and rejected—the hypothesis that prison usage at the county level could be explained by differences in the rates of reported violent crime. Looking at 10 years of data from California, I found that counties used prison at widely varying rates and that those differences in the rates of reported violent crime explained only about 3% of this variation.

When I returned to “Why Should States Pay for Prisons?” I eventually realized that I had not one 80-page paper, but two smaller papers. This is how “Defunding State Prisons” came to be. “Defunding State Prisons” explores the policy dimensions of an admittedly outside-the-box idea: What would happen if states did not pay for prisons and localities faced fiscal limits when they decided how to respond to crime?

I examine two proposals in the article. The first would simply distribute the prison subsidy to counties without changing other facts about criminal justice administration. Counties would get “violent crime block grants”—funds determined on the basis of per capita reported violent crime. Counties could use this money to treat crime however they wished, including spending money on social programs, more policing, and even sending offenders to state prisons. However, counties would have to pay for any prison beds they wanted to use.

The second proposal, local unification, would be funded the same way—by reallocation of the prison subsidy—but would eliminate state administration. States would be split into smaller, unified criminal justice units, wherein all of the features of criminal justice, from policing to imprisonment to post-release supervision, would be under the administration of a single agency with an overarching budget. This would allow localities to retain their local decision-making autonomy, but it would also encourage decision makers from various parts of the criminal justice system to consider how the actions of one part affect resources available to other parts.  

My hypothesis is that localities bearing the cost of imprisonment would be less likely to use it, but this is not a necessary outcome. Neither proposal would commandeer localities in any way.  Localities could still imprison at relatively high rates if they were willing to pay for it.  The real advantage, as I see it, is that the proposals would make the implications of local choices more transparent and more likely to reflect the actual values of the locality.  Nothing says sincerity like cash. Forcing localities to pay for their decisions and live with the consequences would take local autonomy seriously.

Of course, the state would continue to regulate the provision of imprisonment. In addition, more transparency about local differences—local differences that are now hidden in the process of aggregating low- and high-prison-use counties into a statewide mean—might even result in the political will to discuss the sensible reform of state penal codes. It is hard right now to think of changing California, Illinois, Texas, or other large heterogeneous states, but it is not as difficult to imagine changing certain parts of them.

At a bare minimum, though, unless a state sees prison as being a solution that is demonstrably better than other responses to crime (e.g., probation, home detention, jail, drug treatment, mental health treatment, etc.), then prison should not be subsidized when these other responses are not.  

Thanks for reading, and thanks again to the NCCD for giving me the opportunity to write this post. These articles are just the start of a conversation, and I look forward to your feedback.