An economic critique of prison

That is a new article by Peter N. Salib, at the University of Chicago, 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.

One of the suggested alternatives is (non-prison) mandatory labor in the highest-value available jobs, combined with monitoring, and also restitution to the victims or the government.


These people think themselves to idiocy. Our prison system is awful, and many experiments to improve it would be a good place to start. But you have to be really ignorant of human nature to suggest abolishing prison. Of course, I didn't read his article, so if he goes on to say we could use public whippings and severe corporal punishment (perhaps more execution or mutilation) as an alternative, maybe that's possible

An eye for an eye and soon the whole world is blind.

This isn't an endorsement, but public whipping, caning, and mutilation may actually be more humane than the current system of punishment.

The author is espousing a "Swedish style" prison system, but in fact this works for only homogeneous countries like (traditional, pre-Malmo) Sweden, not the salad bowl of the USA.

As for public caning, even Singapore is moving away from that (going soft) from what my Singapore friends tell me.

I personally believe the US should de-felonize many of the crimes that are now felonies, including low-level drug trafficking, after legalizing drugs.

Most people in prison aren't there on drug charges, especially low level drug charges. Most are violent criminals.

We probably should decriminalize drugs, but that's not going to stop us having a huge number of people in prison.

We already decriminalized the most popular drug in America. Oxy.

To my critics like asdf, just Google it next time, I'm right as usual:

41% percent of convicted and unconvicted jail inmates in 2002 had a current or prior violent offense; 46% were nonviolent recidivists. According to the Bureau of Prisons, there are 207,847 people incarcerated in federal prisons. Roughly half (48.6 percent) are in for drug offenses

I believe that the vast majority of prisoners are held in state prisons and over half of those prisoners are doing time for violent or property crimes. So even decriminalizing drugs would still leave the US with the world's highest incarceration rates. Which is why liberals are starting to agitate for releasing violent criminals and burglars. See Vox.

That's an argument against mutilation, but not against corporal punishment.

You do realize that the whole "eye for an eye" bit was intended into institutionalize moral and legal norms precisely so that endless revenge (re-taliation) would not occur?

That was for Moo Cow.

This! An Eye for an Eye and a Tooth for a Tooth was an attempt to put a ceiling on retribution.

To be honest, mandatory organ donation probably would be an optimal way of "serving the utilitarian aims of the criminal law system."

It would be funny if a kidney just happened to weigh about a pound...

"An eye for an eye" is meant to be an upper limit, not a lower limit.

The analogy of criminal justice to private retribution is pretty weak. When you have a two-sided conflict, one party looking to avenge an injustice can easily lead to a spiraling escalation of retaliation. That's the dynamic we see with individual conflicts or interstate conflicts. The senate SCOTUS confirmation wars are a classic example.

Do we seriously think that's an issue in our criminal justice system though? When cops and prosecutors lock convicts in prisons, are criminals retaliating by abducting cops and prosecutors? Retributory justice imposed by an impersonal force vastly more powerful than the persons being punished is a completely different issue.

Even if we shouldn't completely abolish prison, maybe these alternatives are better than prison in many cases where we presently send convicts to prison. We already have monitoring (GPS ankle bracelets) as an alternative to prison or for early release. We also sentence some to "community service" instead of prison, especially for first-time non-violent offenders. One could imagine that it would be better to have people do higher-value labor instead of picking up trash along the expressway and use the proceeds of that labor to pay restitution to victims. That higher social value might lead us to expand the number of eligible criminals beyond those that get community service instead of prison now (but still not necessarily be extended to all criminals). Also, "mandatory" could mean that it's offered as an alternative to a prison sentence; the convict could choose prison if he or she wanted. It would be "mandatory" in the sense that one would go to jail if one didn't do it.

One problem with "out-patient" prisons like ankle monitors is that it costs the state very little to set up. The state couldn't function if it put 80% of its citizens in prison, but it could certainly function if it put 80% of its population into ankle bracelets.

If there is going to be any continued punishment, the state should shoulder part, possibly even a significant part, of the cost.

A public whipping, whatever other benefits and ills it has, does not have this problem. You're whipped and you're free.

A hybrid approach is to use shock collars. As long as you're connected to the network and GPS says you're in an authorized location, no shock. Otherwise BZZZZT! and the cops will be on the way to your last reported location.

I'm sorry, I admire your arguments and the way you are making them, but come on now, why are you making these arguments in response to a commenter and comment that openly stated she did not read the article yet felt entitled to call the author of a work of scholarship an 'ignorant idiot' This Rostova woman does not deserve you reasoned arguments, she deserves to be mercilessly mocked for being everything that is wrong with the internet and Social Media

Everything that is wrong with the culture of the internet and the level of debate on Social Media is perfectly encapsulated in this one comment above.

To begin a definitive statement, not that the argument is misguided or that the logic is flawed or that the analytical method was weak, no the definitive statement is that the writer is an idiot.

Next and this is the most perfect & priceless part when you consider the final point I will make, she accuses the writer of ignorance, but not just is he 'ignorant' he is 'really ignorant', she really wanted to drive home with some emphasis that the idiot is an ignorant idiot.

Finally all this is followed by that most perfect encapsulation of the Social Media debater, after the labeling of the writer as an idiot, an ignorant idiot mind you, she tells the world "I didn't read the article' she then goes onto speculate about what he might have said!!!

I mean does it get any more perfect than that, this person reads a headline, decides to attack the intellect and character of the writer and dismiss as ignorant the argument and this person did not even read the frigging article that she is attacking. I mean just wow, unbelievable, JUST WOW!!

And yet this person is walking on a street, maybe near you right now, convinced of their own righteousness, the power of their own intellect. She probably stopped after pressing Reply and thought to herself just how clever she was and how cutting was her argument. Yet she did not even read the frigging thing, we live in strange and bizarre times and the fact people like this feel emboldened by the power of Social Media should worry us all.

Every positive hope people had for the creative commons that Social Media would provide, the egalitarian sharing of information, the democratisation of knowledge, all those hopes, just forget them. The real face of Social Media is NatashaRostova a person so wilfuly blind and ignorant she proudly states she didn't read the thing and is oblivious to what that means, for a second I thought it was satire.....if only

>this person reads a headline, decides to attack the intellect and character of the writer and dismiss as ignorant the argument and this person did not even read the frigging article that she is attacking

Maybe they're just a good bayesian.

Only an idiot would hope that the internet would be some sort of democratic utopia of reasoned argument and be surprised when people don't behave according to such naive hopes. And only an idiot would then advocate mocking people, which only contributes to very thing that the idiot laments.

Maybe read it before spouting off about it then?

Rather a lot of companies might see this as an egregious attack on their business plans; prison workers also have a great deal invested in the continuation of prison as an economic activity. Prison as an effective societal punishment might come below these vested interests.

Bingo! This is why the idea is a non-starter. Powerful unions and politicians will prevent it from ever happening. Also, the public won't accept the idea of reducing or eliminating the prison population. It's a waste of time to even think about it.

The highest paid correctional officers appear to be in California, at around $75K/year. Median nationwide is around $43K. You'd have to pay me a lot more to spend every day with violent, unintelligent people.

I doubt many people associated with the penal system really enjoy having a penal system or are in it for the lucre.

1. Most people don't want their jobs going away, whether or not they are earning more or less than average.

2. People who are earning more than average are those who especially want their jobs to not go away.

If you showed they were earning less than average, it would have been more convincing that they weren't clinging to their jobs.

"You’d have to pay me a lot more to spend every day with violent, unintelligent people." Those people would be the corrections officers.

After which we create a lot of "crimes" in the code and sentence people to socially useful high-value work. Bielomor canal for the prole and charachka for the college educated. Iosif Dzougashvili here we come!

Which among the cultures and nations of the last 1,000 years have come closest to the author's ideal?

Central African Republic and Comoros have the lowest incarceration rates in the world. The US jails people 40 times as often on a per capita basis. Both countries have higher murder rates than the US, but their median ages are a lot lower.

It would be fair, then, to ask those wishing to reduce the US incarceration rate to spend some time in CAR and the Comoros. They can report back to the rest of us on how life over there compares to things here in the States.

We could return to the Anglo-Saxon common law practice of weregilds and such for crimes. And, of course, death for all those who are just sociopathic. Oh, and slavery for those who cannot pay.

"In the same year first appeared the celebrated Act for the punishment of beggars and vagabonds and forbidding beggary, and requiring them to labor or be whipped. Herbert Spencer states in his "Descriptive Sociology" that it punishes with loss of an ear the third conviction for joining a trades-union, which, if true, would justify much of the bitterness of modem labor unions against the common law. The provision evidently referred to (22 Henry VIII, chapter 12, section 4) applies, however, not to guilds, but to "Scolers of the Universities of Oxford and Cambridge that go about begging not being authorized under the seal of the said Universities" as well as to other beggars or vagabonds playing "subtile, crafty and unlawful games such as physnomye or palmestrye." "

--Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic Jesup Stimson (1910)

So if they won't work, we can go back to taking their ear.

As an aside, I've been unable to discern whether "Scolers of the Universities" in that passage refers to students or some Middle Ages adjunct professors.

The problem here, as with any system in which there are penalties, is coercion - for which humans have yet to construct any system that perfectly solves the problem without potentially icky issues (death, pain, force, slavery...yes what you're suggesting is slavery, economic loss, poverty, banishment or exile, loss of status, etc.), issues that could be icky to at least a bottom denominator of 1 (but much much more than that usually) person on the planet at any given time. I am convinced that subconsciously most people on the planet have actually done the math and have calculated that there is definitely an economic loss and sunk costs due to penalties having to be administered, and that it is worth it. The economic question I'm interested in answering is whether or not prison is actually more beneficial to human society than the cost of a $0.09 9mm round to the back of the head or exile (fundamentally no longer an option though) to absolutely anyone who fails to follow the rules (reasonable or not) or who, upon reaching the lowest-boundary "no" answer to all reasonable commands, provides everyone else with no other alternative, and thus negates the law in question and all the other laws in principle.

I believe that prison is extremely costly to society, economically, psychologically and morally and is also totally and completely worth it. I also believe that until we evolve the human condition further in forms of coercion that mirror changing some people's "source-code" it is the best mass-production solution to the problem of criminality. Penalties are disadvantageous. They suck. They are natural and a fact of life. And they are absolutely necessary. Thank god so many countries (but not nearly enough) have moved away from death, mutilation and torture to adopt separation from others as a punishments. Small miracles I guess.

Wouldn't the mandatory labor violate the Constitution's prohibition of slavery?

Involuntary servitude is constitutionally permitted as punishment for a crime for which the punishee is duly convicted.


It was Constitutional 100 years ago, it might not pass muster today.

Forced labor is still used in some prisons, especially federal ones.

Involuntary servitude as criminal punishment is specifically approved in the 13th Amendment.

Even Ginsburg and Kennedy might balk at explicitly banning it. Though with them, who knows.

I also highly recommend this youtube regarding the humanitarian theory of punishment from C.S. Lewis.

C.S. Lewis said, in that video you posted, that an expert will use statistics to "prove" that a punishment will or will not deter future crimes. I turned it off after that.

The average citizen of New Zealand has 1 testicle. Fact.

You can use facts to prove all sorts of things, even things that aren't true.

This Article argues that we should not imprison people who commit crimes.

And what follows is a precis of an act of intellectual onanism. Is the purpose of Marginal Revolution to demonstrate that academic economics has fallen into a decadent state?

As the saying goes, some ideas are so dumb only intellectuals believe them.

Employing the tools of economic analysis, this Article demonstrates t

...that there's an academic economist who has no sense of the circumscribed utility of 'tools of economic analysis'.

And one who has never been mugged by someone who didn't just take their wallet but additionally beat them to a pulp, or dealt with a rape victim, etc.

"One of the suggested alternatives is (non-prison) mandatory labor in the highest-value available jobs"

That would require paying them more than non-criminals doing the same jobs, with the state paying a large part of the bill, thus stealing jobs from non-criminal workers trying to find jobs.

Unless the idea is to force them to work for wages too low to cover housing and transportation forcing them to engage in illegal activity, trespass to sleep in parks, public buildings, using fast food restrooms to bath, foraging for food; hitchhiking, etc.

"That would require paying them more than non-criminals doing the same jobs, with the state paying a large part of the bill, thus stealing jobs from non-criminal workers trying to find jobs."

Yes, or there will inevitably be some workers who will commit crimes in order to be given jobs!

This is not outlandish. There are criminals who commit (often minor) crimes in order to be sent back to jail, where they have at least a warm bed and several meals a day.

From the article:

"Let’s frame these inherent social costs in terms of actual dollars. According to the U.S. Census Bureau, the per capita income of an American between March 2015 and March 2016 was $28,555.61 There are obvious problems with using per capita income as a precise measure of the wages lost while in prison, For example, those sent to prison might, on average, earn either more or less than the general population."

More or less. It's a big mystery. But the average, he tells us, "is good enough for a rough estimate," which he proceeds to make.

So, typical head-in-the-clouds academic nonsense.


"But prison’s needless social costs do not end when convicts’ sentences do. It is wellestablished
that imprisonment causes ex-convicts to face dismal odds of post-release
employment. For example, a 2001 survey of employers in Los Angeles County found that
“over 40 percent of employers indicated that they would ‘probably’ or ‘definitely’ not be
willing to hire an applicant with a criminal record for a job not requiring a college degree.”64
The problem has become sufficiently well-recognized that a number of states have
instituted “ban the box” laws.65 Those laws make it illegal for employers to ask about past
convictions in job application forms.66 Thus, imposing prison as an immediate nonmonetary
punishment for bad acts causes a net social loss of the bad actor’s wages not only while
incarcerated, but also for years thereafter.67 One study suggests that these losses amount to
an annual loss in output of between $57 and $65 billion.68"

Presumably, it is only the fact of imprisonment that causes these billion-dollar social losses. If robbers and drug dealers were given the alternative sanction Salib recommends, employers would be eager to hire them!

"This reduction in bad actors’ net present worth is a detriment to his “creditors”—tort
claimants and governments to whom he owes fines—insofar as it reduces their recovery.
But, more importantly, it is a huge social cost. Wealth transfers like tort judgments and
fines are nearly socially costless.59 If the jewel thief pays his entire $50,000 net worth to his
victim, his wealth is reduced by that amount, but his victim’s wealth increased by the same.
Thus, holding aside administrative and transaction costs, overall societal wealth is
unchanged. Our prison system fundamentally replaces socially costless wealth transfers
with social losses.
60 Instead of allowing the thief to earn his $50,000 and then punishing
him by transferring it, the prison system immediately punishes him by destroying the
$50,000. From the thief’s perspective, the two are essentially the same; he loses $50,000
either way. But from society’s perspective, the second is much worse. In the latter scenario,
the world is $50,000 poorer than it might have been."

Presumably, the thief doesn't mind being imprisoned except for the fact that he won't be able to work and earn 50,000$, thieves being well known for their eagerness to work.


Tyler's signalling again.

What is he signalling though?

That this is worth considering? Or that it is really quite dumb?

So your disagreement is based on having actually read the article?
You restore part of my faith in humanity.

"... mandatory labor in the highest-value available jobs, combined with monitoring.."

We could employ them as prison guards!

Ye gods. This isn't an academic economist. This is written by a 27 year old lawyer with no background at all in any social research discipline.

And your comment is written by someone who thinks money for prison and probation grows on trees, ie, a free lunch economist.

The fraction of the population in prison and probation has increased over the past three or so decades, but the people who advocated these changes the loudest to fix problems in society are today the loudest in claiming society is in worse crisis today than three decades ago.

Either Reagan, Bush, Newt, Cruz, Perry, Trump are radical leftists, or conservatives have failed on policy with a high economic cost, one that conservatives do not want to pay.

And your comment is written by someone who thinks money for prison and probation grows on trees, ie, a free lunch economist.

You came to that conclusion not by way of any remarks by me, but by way of your own mental incoherence.

Last I checked, the prison budget in New York amounted to 0.5% of the state's domestic product. We can afford that.

One of the suggested alternatives is (non-prison) mandatory labor in the highest-value available jobs

Many problems with this idea.
1. Low-wage laborers will object that they cannot compete with prison labor, and they would be right. Even if the labor is compensated (ha!), the fact that the work is mandatory would reduce the laborers negotiation power. They would price non-criminal labor out of the market.

2. Companies that employ such labor may have an unfair market advantage.

3. Commit a crime, get a job. You would incentivize poor people who cannot find employment to commit crimes so that they will be assigned one. There aren't enough jobs for a significant percentage of the population right now. If there are high value jobs to hand out, one would think that non-criminals ought to have a chance to apply for them first.

The dynamic would be analagous to the situation with large slaveholding plantations and their ability to outcompete smaller private landholders who employed free labor during the run-up to the Civil War. You would end up with some big corporation that hires criminal laborers and employs them in large highly profitable plantation-style operations dominating significant industries.

There are so many perverse incentives and potential for abuses here that I don't even know where to start.

Your solution is: hike taxes and build ever more prisons until the prison population exceeds the number of workers?

Don't get me wrong. I think the prison system is a horrible solution and should be reformed or replaced with *something*. I just don't think mandatory labor is a good alternative.

Technology isn't going to help you, Hazel, unless perhaps you'd like to land in some dystopia dreamed up by Aldous Huxley or C.S. Lewis. You've got your choice or prison or corporal punishment.

What it it's the least bad option?

Mandatory labor would be worse than prison, due to the perverse incentives it would create for the rest of society.

Prison at least quarantines the criminals, so we can keep on exchanging goods and services voluntarily without having involuntary laborers mucking up the markets.

It gets worse: What if some criminals can never labour at a sufficient rate to repay even the cost of their keep? What if they are sub-zero marginal product?

$28k a year is a joke. I mean, a lot of criminals are pretty stupid, risk-taking, lazy, with a high discount rate and no skills. I wouldn't buy labour from the average criminal at minimum wage rates. Indeed the mere costs of compelling them into "highest value" labour may be high. For what? So they can produce minimal wage product at value of $10/hour? And what do we mean by "monitoring"? Someone standing over them with a whip? Because at the end of the day, what do you do if they don't feel like working? Starve them or beat them?

The BEST thing that would come out of it is if the criminal laborers weren't actually worth employing. That way no private corporation would want to employ them and it would end up being merely a government run chain gang.

Unfortunately, slavery is usually pretty profitable.

Worse, if the slavery is profitable, the state has an incentive to find more people to lock up so they make more profit. We already see this in a lot of places with traffic enforcement (where at least they're keeping people from speeding) and in a few corrupt places with civil forfeiture. We don't want more of this kind of perverse incentive.

Exactly. This idea is so unfathomably awful that it's nearly impossible to catalogue everything that is wrong with it.
I'm almost at a loss for words.

Decent arguments can be made that prisons do a poor job of punishing, rehabilitating and deterring. But I see the most important function of prisons as quarantine of sociopaths. Or what Salib calls "incapacitation". He finally addresses that issue in his "Objection B", but some of his solutions are preposterous. I LOL'ed at this one: " GPS bracelets could ensure that bad actors attend therapy sessions".

The last line of that section weakens the whole point of the paper, seemingly conceding that some prisons, for some people, will still be necessary: "for a great majority of criminals, the efficient system wins".

Indeed. It assumes far too much rationality on the part of his subjects.

While we are at it, what do you do with criminals who refuse the "mandatory" labour? Beat them or starve them? Or - wait - put them in prison....

The American regime drives its own people to crime and then confines them like animals when it just fon't murder them. A desperate and terrorized populace sees no way out, has no prospects and, as the goes by, less and less hope. American society is seek.

* sick

Take a look at the case of Aaron Hernandez, Thiago.

Infamous baller, who had it all: money, success, skill, plaudits, attractive gf, circle of friends, cars, etc. And what did he do? He shot people.

He was not driven to crime. He had prospects. He had hope inasmuch as a huge multimillion dollar professional sports contract gives you "hope". He was not driven by poverty to commit crimes. You could perhaps argue that he was a rare psychopath, but there are many like him. Not murderers, but highly attracted to the gangsta lifestyle of drugs, alcohol, fast cars, tattoos, girls and parties. And lots of glocks.

When I think of people being driven by poverty to commit crimes, I think of impoverished Brazilians in their shanty town hovels of corrugated steel.

She had a nice body and good skin but I'd be afraid she'd murder me in my sleep for my Samsung Galaxy S7.

"He was not driven to crime. He had prospects. He had hope inasmuch as a huge multimillion dollar professional sports contract gives you 'hope'".

It is an exception. Most Americans feel desperate, angry, afraid and disgusted with what they see. Americans have lost their faith in their leaders. Their leaders betrayed them and they understood that the so-called American Dream has gone sour.

In related news: "Brazil's corruption scandal nabs more politicians, including 8 Cabinet members, and Brazilians cheer"

I would hope the enlightened Brazilians don't confine these poor politicians like animals.

They probably will be confined. Hundreds of politicians, including former governors, ministers and Congressmen, and top businessmen have been jailed . All living former presidentes of Brazil are under the most strict federal investigation. But we do not drive people to crime, outsourcing their jobs, preying on them on every way and they confine them. In Brazil, we can trust our system, we do not have the FBI deciding who must be president and who must not. Our people is not desperate, voting for reality show personalities to be president.

"In Brazil, we can trust our system, ..."

From the article:

"Federal prosecutors will open new inquiries into eight ministers in President Michel Temer’s Cabinet, as well as 24 senators and 39 lawmakers in the lower house of Congress."

"Brazilians are becoming accustomed to seeing presidents in legal hot water. Temer’s predecessor, Dilma Rousseff, was impeached last fall for breaking budgetary rules by shifting around funds to cover short-term deficits. She wasn’t accused of corruption, nor was she a target of Lava Jato, but her predecessor, Luiz Inacio Lula da Silva, was. He faces corruption charges in connection with alleged bribes from Oderbrecht."

I don't think I could find it me to trust the system after that many years of corruption at the very highest levels. Brazilians are truly a trusting people.

The point is, the guilty are punished - swiftly and harshly. To quote Mr. Goldwater, "Now, certainly, simple honesty is not too much to demand of men in government. We find it in most. Republicans demand it from everyone. They demand it from everyone no matter how exalted or protected his position might be."
Now, however, Americans know the powerful and exalted will never be punished. The law enforcement system has become a tool of oppression and Americans have no choice anymore, but echoes. They know that a former president or seating president, by the way, would never be really investigated and punished. They know they can not trust the FBI or the CIA or their president. The power who once belonged to "we, the people" now is auctioned to the highest bidder and wielded like a club to crush innocent citizens.

What's next, an economic critique of speed bumps?

I'm sure there are libertarian arguments against this kind of nudging.

You consider the past three decades plus of war on crime, war on drugs, three strikes, etc, and growing share of population in prison or probation to be progress?

Positive for economic growth and rising economic welfare?

The index crime rate went down by 30% and the homicide rate by more than 50%. That's a good thing. While we're at it, the prison census hit a plateau about a half-dozen years ago.

Good call, rayward!

. . . or Tyler is just trolling.

I think it should be possible to design a test or questionnaire to find out exactly what criminals fear most. Is it pain? Is it deprivation? It is humiliation? Or is it incarceration?

If it is humiliation, then a "shaming circle" arrangement might work. If it is pain, then caning or corporal punishment might work.

However, what I've read (and I'm busy at office and won't try to look it up) over the last few years suggests that what prisoners really fear is incarceration. They really really don't want to be imprisoned. They strongly dislike the loss of their liberty.

Perhaps it isn't the loss of liberty that they fear, but rape, assault and solitary confinement. It is difficult to say what criminals fear most about prison.

This is a stupid and childish proposition that could only be suggested by someone who has zero experience with criminals.

Alas, the stupid and childish author clerks for a federal judge in Chicago.

Fortunately, not one of the ones with a reputation for wisdom or common sense. Clever old fellow, though.

What do you do with stalkers or organized crime members who might retaliate against victims or witnesses if they have freedom of movement?

What portion of people in prison are there on stalking or organized crime convictions?

As long as the number is more than a handful, it is a question that deserves consideration. Based on chart 2 in an FBI gang report a significant proportion of crime is committed by gang members.

Or the victims' families lynching criminals. I think a country without prisons would be a pretty violent place. Right now we manage to segregate and offshore a lot of violence.

OTOH, if criminals knew they were more likely to be cornered by an angry mob of a victim's family and friends, would it have a deterrent effect?

I think that we can look to Baltimore and Chicago for an answer to your question.

"High value labor"? You mean like sentence people to run a hedge fund or be CEO of a large company?

I'm all for it. House them with the academics.

I was expecting a model. I don't know why.

He mentions Tom Dart, an old colleague of mine. And he clerks for Frank E. Small world.

I think many people underestimate the cost of leaving criminals among the populace as opposed to caging them. Probably the greatest crime reduction benefit comes from their absence.

I'm not convinced that people who flout the law as a way of life will behave in an employment where they earn a low fraction of their marginal revenue product. It's too easy to drop out. Our current halfway and probation programs don't work particularly well.

I've long favored corporal punishment as not only more humane but more effective. However, this nation will never accept it with its history of slavery and oppression, no matter how well it promises to work.

The ladder goes down too fast and the rungs going up are too slippery. I would do shorter jail/prison sentences that are more frequent but will automatically purge from your record provided you avoid additional legal problems for a sustained, but not excessive period of time. I suspect there's a huge implicit 'tax' placed on someone whose done wrong who decides he now wants to try being clean. A tax that is much higher these days than it ever was in the past.

Someone has done some criminal activity. He has two choices. He could return to crime, which he now might be more successful at given his past experience, the 'networking' prison has allowed him to do etc. Or he could 'be clean' and try to get away from being in and out of the system. If the second option can be accomplished by only a few months of sustained employment then the ladder up is easy to climb and offers immediate returns that can build into larger ones in the long run. But if the second option entails min. wage work for two decades, constant disrespect and lifetime exclusion from simple privileges (for example, in Newark you can't drive a cab if you ever had even a minor drug conviction even if it was decades ago)....well then why not go after the career criminal option?

1. Would you support making "past criminal activity" a protected class for employment? (Or at least for most employment, where you can carve out a short list of exceptions?)

2. Would you support indemnifying employers for crimes committed by their employees unrelated to their job? (Again, specify a list of exceptions if you wish.) If my retail employee gets insulted by a customer and stabs him, am I at least off the hook for his criminal behavior?

If we have both of these, we can do a lot to help people who have served their punishment, whatever that is, to return to society.

I am 100% in favor of you hiring a recently-released-from-prison violent felon to care for your aged grandmother, or watch your children, or do work inside your house unattended. But I'd like to be able to opt out.

Do work inside your house? Hmmm. Are you under the impression that home contractors, construction, landscaping, are fields remarkably free of people with criminal records?

1. Not really protected class, but protected information perhaps. If you go on a job interview and they run your credit report and Chase says fifteen years ago you jibbed them on your credit card, that information may be totally true but it is illegal as negative marks on your credit have to drop off after 7 years or so.

2. No. In #1 would the fact that the employer couldn't learn about bad money management from over a decade ago indemnify them if their employee stole money from a customer? If you walk into a store and a retail employee stabs you in the chest are you unable to sue the store if the worker had no history of criminal behavior ever?

3. Something missing here is that the cost of wiping records clean after time and providing people with incentives to pull themselves up from bad decisions is probably much smaller than the hidden costs we see today. Prisons cost a lot to run. A large class of people sub-employed for long periods of time, more crimes that happen than otherwise would have happened, more welfare costs all to maybe lower your chance of hiring someone who will go crazy and stab a customer from 1 in 100,000 to 1 in 105,000?

If employers are going to be liable for crimes their customers commit, employers are going to quite rationally discriminate against anyone who has any potential reason to suggest criminal history.

We can insist that employers just take that hit for the team, but for all we insist loudly, they won't. It's too big a risk. Even if you make it protected information, they would rather face a few government fines than their business ending over a lawsuit because they gave Joe McStabby a second chance.

If you can come up with some way around this so employers aren't left holding the bag, employers won't try to work around your systems. I'm open to ideas. You could, for example, have the government pay for the needed insurance, or even handle it directly.

150 years ago how would this be done? If you wanted to escape your past you packed up and moved somewhere else...'the man with no name' so to speak. Sure people might suspect a new stranger that arrives in town but it would be very difficult to do anything like a background check on him. If you really wanted one, say you were putting someone in charge of a bank could pay a PI to document an individual's background but otherwise you would be ignorant except for your ability to judge someone's character in the moment.

As for 'taking one for the team'....whose taking it for real here? If Joe doesn't hire 10 people with criminal records because 1 may go nuts....the rest of society has 9 people who live a substandard life, pay less taxes, incur more welfare, might even end up doing more crime since choosing crime will be less taxing than not.

I also suspect this can tie into Tyler's complacency theory. Some amount of growth comes from making mistakes and reinventing yourself. Infinite data available about you since your birth rewards those who never change, who spend their whole lives never straying outside the box. Creating an 'untouchable' class for those who have had runins with the law may benefit individuals on a personal level but end up costing all of us more in the long run.

If the employer is responsible for his employee stabbing someone, asking the employer to hire known felons is asking them to take one for the team.

You are avoiding the question by saying someone needs to absorb the cost, which is a tautology. You identity we have a collective action problem, but you don't solve collective action problems via telling people to sacrifice so others can gain.

You're assuming the best way to avoid hiring someone who will go nuts and stab your customers is to screen applicants for criminal records. Making that harder is 'taking one for the team'. Perhaps....or maybe not.

Suppose someone invents an invasive machine (think sets of pins that are drilled into your skull) that can scan your unconscious and determine if the dreams you forget involve a lot of violence. The procedure is painful but otherwise doesn't harm you physically in the long run. Do people who have violent dreams have unpredictable outbursts of violence? Let's say it's a weak correlation but real.

Should you be labeled a 'violent dreamer' you will find it harder for the rest of your life to get a job. Your income will be lower, your health insurance crappier, etc. etc. But instead of there being 1000 incidents of workplace crazy violence per year there'll only be 975. You and others form a movement to limit the use of this. This is absurd you say! We have a million people plus locked in a lifetime ghetto. In fact there's several thousand crimes from those million in the economic ghetto because they no longer respect the system and cannot simply 'live in their place'.

Yet your twin brother steps forward and asks what about the 25 additional people who will be 'taking it for the team'?

Excellently played, your trolling worked and hooked me right in to your fish bucket. This round to you, sir.

Only a third of the criminals being "punished" are in prison. The rest, the probationers, are living among the population. Then even they live among the population with black marks making it difficult to live legally. Thus they reoffend and repeat the cycle, spending most of their life in the justice system, but less than half actually in prison.

suppose we had a rule of thumb like 'two good = 1 bad'. Sentenced to three years? Serve 2 years and probation for 1 year *but* if you behave and stay out of trouble for 6 years that record is expunged for all purposes other than sentences for a new offense. Add bonuses like two additional months off for remaining continuously employed for 6 months, three for 12 months, etc. Make it easier to get short and long term rewards for taking small steps in the right direction.

Just bringing up this quote for others to see:

"As such, this paper does not endorse any particular nonmonetary sanction. History presents a startling array of options, including: flogging, pillory, running the gauntlope,95 tarring and feathering, branding, and many more. Modern judges have concocted similarly creative sanctions, including: forcing criminals to publicly carry embarrassing signs,96 mandating that they sleep in doghouses,97 or requiring them to undergo unwanted haircuts.98 If one objects to all of these, as-yet- unimagined punishments could be substituted. Many nonmonetary sanctions could impose private costs without needlessly destroying societal wealth."

>mandatory labor

Oh, you mean slavery. I can't imagine anyone would have a problem with that...

Dear Lord, people. Even Brazil isn't this stupid.

Brazil is not stupid. While American scientists proved the average American has the intelligencemof a 12-year old boy, Brazilian scientists showed the Brazilian brain is considerably bigger, heavier and more powerful than the American brain.

This was published in a law journal: student editors, no peer review.

Not a bad descriptive article, but certainly not rigourous.

In my youth in Kentucky I knew several moonshiners.

They figured they would spend several years in prison and just looked at it as a cost of doing business.

So absent that cost we could've all had cheaper moonshine.

One concern that I have is that a non-prison system that is less terrible might perversely encourage more and longer punishments. Essentially, lowering society's costs of punishing people will make us punish people more.

Perhaps most people might end up in "high value labor" over time, as society deems almost all of us criminals already.

Didn't Tyler spend like 8 years trying to convince us that all those people who lost their jobs in the last recession were "Zero Marginal Product workers" anyway? Not sure how that squares with the idea that there's big economic gains to be had in sentencing crack dealers to involuntary employment.

Boo. Ignores procedural versus distributive justice issues.

Hmm. He claims longer sentences increase recidivism; in the footnotes to the claim he admits that, in fact, there is good reason to believe prison term length has no effect on recidivism; he then speculates on the premise that prison does increase recidivism; and finally he out-and-out states that "Prison also increases the probability of additional crimes." All in the space of two paragraphs and one footnote. If you're broadly familiar with the literature on recidivism, instead of having a horizon limited to a handful of studies cited in one paper, you know that in fact we know very, very little about how to increase or reduce recidivism. The only things that have a strong, non-confounded correlation to recidivism rates are age and sex. The older a person is, the less likely they are to re-offend in any given time period. And females are less likely to reoffend than men, just as they are much less likely to offend in the first place. All other claims are unsupported by the totality of the literature.

I do note, interestingly, both age and femaleness correlate broadly with lower testosterone. Although there aren't enough castrated males in the population either in general or in prisons to make a proper statistical study easy, anecdotes plus the known effects of testosterone suggest that castrated men, at least if denied hormone replacement therapy, should also have woman-like re-offense rates. Which suggests castration would be a simple, rather inexpensive, non-financial punishment with low social costs that would reduce recidivism while possibly being a more-effective deterrent to crime in the first place. And further, insofar as antisocial behavior has genetic roots, such action could also have a eugenic effect on reducing crime rates in the overall population by preventing felons from passing on anti-social genetic propensities.

Hmm. He claims longer sentences increase recidivism; in the footnotes to the claim he admits that, in fact, there is good reason to believe prison term length has no effect on recidivism; he then speculates on the premise that prison does increase recidivism; and finally he out-and-out states that “Prison also increases the probability of additional crimes.” All in the space of two paragraphs and one footnote.

(1) He has no background in social research beyond some disconnected undergraduate coursework, if that. (2) He's a lawyer. He's paid to press buttons that work. He's not paid to say anything true.

So called chemical castration is already used for certain offenders. Perhaps it could be used as part of parole or probation for more offenders?

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I am always quite shocked by the thirst for revenge of American people.
At least, I hope that the majority of you all is from the USA, good grief...

America already uses a similar system (imputed income, judicial oversight, enforcement, garnishing) for child support. Does it work so well? In particular, does it work so well for the principal demographic of American prisons, the existence of which motivates such "research" in the first place?

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