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Monday, August 01, 2011

Should Prisons Run on a Voucher System?

A few weeks ago I had the chance to read Sasha Volokh's interesting papers concerning prisons and innovation. The paper I want to discuss briefly in this post is his paper on Prison Vouchers forthcoming in the U. Pa. L. Review.

Sasha offers us a nearly perfectly executed thought experiment paper centered on the idea: what if prisons were run on a voucher system? It's such a quirky and seemingly off-the-wall idea. But he does what good academics should do: he unsettles our intuitions and takes creative arguments out for a walk.  

Notwithstanding my admiration for the paper, I had a few random thoughts/reactions that I shared with Sasha and he permitted/endorsed my sharing these reactions more broadly. So what follows threatens to make sense only after one reads his actual paper!
First, though prison vouchers and prison privatization are not the same thing, I thought the paper might engage more of the critics of prison privatization because I sense that they would register similar concerns.  So, I could imagine there being more discussion of the non-instrumental critiques made by folks like Mary Sigler & Michael Walzer, and to some degree Sharon Dolovich.  Perhaps surprisingly to some (b/c I'm a retributivist), I have written in qualified defense of the careful use of private prisons (see the last 30 pages or so of my 2001 piece).  
Second, along those lines, I found the discussion of retributivism in the piece a bit on the crude side. That's because I think Sasha is guilty here of equating retributivism with the philosophy of MORE (offender suffering), and that might in fact be what some political figures or lay persons believe themselves or believe that's what retributivism amounts to, but there is now a long tradition of academic theorists who identify as retributivists and see retributive justice as an essentially humanitarian corrective to the teeming and squalid pestholes of prisons. I count myself as one of those. Chad Flanders and David Gray are others who have written recently on retributivism as a progressive force for criminal justice reform. So, Sasha could probably avoid alienating readers like me (on this overall relatively small point) simply by dropping a footnote or sentence in the text that indicates that his usage of retribution is really more related to a populist vengeance theory, and then cite some dumb politician who embodies the MORE school of punishment. 
One other point, somewhat related. I've often described retributive punishment as a coercive condemnatory deprivation, and in so doing, rejected the suggestion that offenders should get to choose say, between shaming punishments, and a period of incarceration, on the idea that prisoner preferences are of little to no normative significance. To the extent this derogation of prisoner choice matters to the punishment's social meaning, Sasha deftly avoids that problem by arguing that the prisoner's choice can be simply instrumental toward goals extrinsic to respecting the offender's autonomy. That was a nifty argument.
In the conclusion Sasha worries that prison vouchers will reduce the deterrent effect of prisons. The truth is that this concern is ultimately quite speculative; indeed if the work of folks like Tom Tyler or Robinson and Darley is correct, then the possible reduction in  marginal deterrent value attributed to prison vouchers is likely to be negligible.  I realize this skepticism toward the achievement of marginal deterrence might be heresy to some economists interested in punishment design but if one were in fact sensitive to the facts and not just incentive theories, and if marginal deterrence is incredibly difficult to achieve let alone measure (as some credibly believe), then there's less reason to be concerned about the costs to deterrence of this plan.
 
This is the last point: it's commendable of Sasha that he's basically running the thought experiment and expressing ambivalence and caution in the conclusion, but some parts of the article seem less ambivalent. If the paper is really intended to be less than full-throated support for the thought experiment at its core, then perhaps the best signal is to slightly adjust the title to: "Prison Vouchers?"

Posted by Dan Markel on August 1, 2011 at 11:44 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink

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My very first post for Prawfsblawg, three years ago, pressed the idea of treating prisons more like schools, on the theory that, if we conservatives are serious about reforming one governmental institution (schools) with market reforms, then we ought to be equally serious about reforming others that are more beloved by conservative voters -- namely prisons. My own proposal was to use merit pay for prison wardens, rewarding with salary bonuses those wardens whose prisons produced lower recidivism rates and higher rehab rates from former inmates. If one distrusts teachers and principals to produce good results for their custodial charges without market incentives, then one should distrust prison wardens as much if not more.

Sasha's proposal is in the same spirit as mine and will, I suspect, win about as much support from so-called conservatives or Republicans -- namely, zero -- simply because principled distrust of government officials has no natural home in any party or movement today.

It would be interesting to know whether the usual objections to vouchers (skimming the cream, imposing externalities on those who make poor choices, etc) will be trotted out by conservatives who usually deplore such positions when used to attack student voucher proposals. Probably: I found that conservatives denounced merit pay for prison wardens by arguing that wardens could not be held responsible for the prisoners' post-incarceration behavior, given how many factors other than prison conditions contributed to that behavior. The same critics had no difficulty believing that teachers' pay could be varied with students' test scores.

The indifference of conservatives and Republicans to the reform of prisons is the most striking evidence that their anti-statist rhetoric is so much insincere blather. But it does not hurt to come up with smart proposals like Sasha's just to smoke out how resoundingly indifferent conservatives are to limits on state power whenever those limits tread on conservatives' favorite state institutions.

Posted by: Rick Hills | Aug 1, 2011 6:13:26 PM

Rick, I'm glad you reminded me of that fascinating post. More evidence, of course, that you should be submitting your blog posts to the folks at the NYT oped page!

Posted by: Dan Markel | Aug 1, 2011 10:27:32 PM

"the work of folks like Tom Tyler or Robinson and Darley"
I was led here from a VC post, and I've never heard of those people. I am interested thought. Anything in particular to recommend?

Posted by: TGGP | Aug 3, 2011 12:48:37 AM

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