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Analysis

How to Reduce Incarceration? Change Prosecutors’ Incentives

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

  • Bryan Furst
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)