How to Reduce Incarceration? Change Prosecutors’ Incentives

Some states and cities are making prosecutors accountable for the costs of the punishments they seek

July 9, 2018

In his first year as district attorney in Philadelphia, Larry Krasner is making waves for his reform-minded approach to fixing some of the most fundamental problems in our justice system. Among other innovative strategies, he is requiring prosecutors in his office to justify the cost of a prison sentence before asking taxpayers to foot the bill. 

Krasner’s method, released as part of a much-lauded memo outlining several progressive new practices, forces those imposing the punishment to confront and explain the costs of it — monetary and otherwise. Sending someone to prison in Pennsylvania costs around $42,000 a year by conservative estimates. So if a prosecutor is requesting a five-year sentence, they would have to justify not only an approximate $210,000 cost to taxpayers but also the decision to interrupt the convicted person’s connection to family, employment, and access to public benefits. Publicly stating the costs of incarceration, goes the thinking, will incentivize prosecutors to push for shorter sentences or even find alternatives to time behind bars. 

Americans pay tens of billions of dollars each year in taxes to run and maintain state prisons, which currently incarcerate more than 1.3 million men, women, and children. Though the state government foots the bill, it is often county prosecutors who have the most power to send people to prison. This blank check on admissions creates a tragic paradox: It is easier and cheaper for the county if a prosecutor sends someone to state prison rather than diverts them into community-based alternatives to incarceration. Combined with office cultures that reward convictions and long sentences, prosecutors are routinely incentivized to perpetuate mass incarceration.  

Krasner’s policy is an innovative effort to begin shifting those perverse incentives. States can also implement even bolder strategies. The Brennan Center released a criminal justice agenda earlier this year that offers options for reforming local prosecutor incentives. It recommends providing bonus funding to prosecutor offices that reduce both crime and incarceration. Rewarding these goals, in contrast to traditional measures of success (e.g. conviction rates and sentence lengths), will encourage prosecutors to opt for lower charges or alternatives to incarceration. 

The agenda also suggests charging counties for the number of people they send to prison, which some states have already started doing. In January 2018, Ohio launched Targeted Community Alternatives to Prison (T-CAP). Counties that participate in the program agree to pay a penalty for every person they send to prison for certain low-level felonies. This cost shifting makes prosecutors directly accountable for their charging decisions, encouraging them to reprioritize who they lock up. Participating counties receive funding to develop community-based solutions in lieu of prison, giving prosecutors more effective and humane options that focus on rehabilitation. The program is new, but policymakers should pay attention to whether T-CAP will serve as a model for other states to follow.

In 2009, Illinois implemented Adult Redeploy Illinois (ARI), which uses both fines and grant funding to incentivize counties to send fewer people convicted of nonviolent offenses to state prison. The program awards grants to counties to develop alternatives to incarceration, including problem-solving courts, enhanced probation, and other evidence-based interventions. Counties receiving funding agree to reduce prison admissions by 25 percent for a defined target population (e.g. those with mental illness or suffering from drug addiction). If they fail to hit that target, the county must pay a fine to the state, financially incentivizing buy-in from prosecutors and judges. By awarding $25 million in grants from 2011 to 2017, ARI kept 3,000 people out of prison and in their communities, while saving the state $108 million. 

Even stronger incentive-shifting solutions have been proposed. Law professor W. David Ball proposed that state governments allot major grants to counties pegged to their respective levels of violent crime. Counties could use the money however they saw fit, but would have to pay for every person they sent to state prison. Faced with these costs, prosecutors would likely prioritize more serious crimes and send fewer people to prison.

Still, Ball’s plan is likely to face pushback from local stakeholders resistant to drastic change (e.g. prosecutors and police unions). And it’s unclear what backstop will ensure that costs imposed on counties are not simply passed on to defendants through additional fees and fines. 

These programs are not a silver bullet for ending mass incarceration or the complex funding structures that perpetuate it. But they can reduce the number of people behind bars by making prosecutors accountable for the punishments they seek. Elected officials and policymakers who support a more equitable justice system should implement similar strategies in their own states. 

 

(Photo: Thinkstock)