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Revenue Over Public Safety

Summary: Financial incentives throughout the criminal justice system encourage punitive enforcement and sustain mass incarceration. Realigning them will require action from municipalities to the federal government.

View the entire How Perverse Financial Incentives Warp the Criminal Justice System series

Bipar­tisan efforts to change the crim­inal justice system have gained momentum around the coun­try in recent years. Nearly all 50 states, many counties, and the federal govern­ment have sought to reduce impris­on­ment and mitig­ate its harms. foot­note1_bkj0yoc 1 Rebecca Silber, Ram Subramanian, and Maia Spotts, Justice in Review: New Trends in State Senten­cing and Correc­tions 2014–2015, Vera Insti­tute of Justice, 2016, 4–5,­loads/public­a­tions/state-senten­cing-and-correc­tions-trends-2014–2015-updated.pdf []. For county-level reforms, see, for example, Shan­non Heffernan, “Report: Cook County Bail Reform Reduced Jail Popu­la­tion Without More Crime,” NPR, May 13, 2019,­la­tion-without-more-crime []; Alvaro Ortiz, “Federal Judge Approves Settle­ment Over Historic Lawsuit on Harris County Bail System,” Hous­ton Public Media, Septem­ber 5, 2019, https://www.hous­ton­pub­lic­me­­set­tle­ment-over-historic-lawsuit-on-harris-county-bail-system/ [–6U36]; and Harris County Crim­inal Lawyers Asso­ci­ation, Amended Local Rule 9.1 (Misd Bail Policies), Janu­ary 23, 2019,–1-misd-bail-policies-1–16–19/ []. In the past decade, Congress enacted two major federal crim­inal justice reform bills: the Fair Senten­cing Act and the First Step Act. See Fair Senten­cing Act of 2010, Pub.L. 111–220, 124 Stat. 2372,­l220/pdf/PLAW-111pub­l220.pdf []; and First Step Act of 2018, Pub.L. 115–391, 132 Stat. 5194,­l391/pdf/PLAW-115pub­l391.pdf []. A remark­able wave of legis­la­tion has shortened custodial sentences and widened eligib­il­ity for sentences served in the community. States and local­it­ies have also inves­ted in rehab­il­it­a­tion and reentry services.

Yet the impact of these efforts has been relat­ively modest. While the nation’s imprisoned popu­la­tion has declined since peak­ing in 2009, incar­cer­a­tion levels remain extraordin­ar­ily high (see figure 1). foot­note2_qoaoa3q 2 Silber, Subramanian, Maia Spotts, Justice in Review: New Trends. See also First Step Act of 2018. Nearly 1.2 million people are serving sentences in state and federal pris­ons, and 10.3 million are admit­ted to local jails every year. foot­note3_rx2g­zpa 3 For prison popu­la­tions, see Jacob Kang-Brown, Chase Montag­net, and Jasmine Heiss, People in Jail and Prison in Spring 2021, Vera Insti­tute of Justice, 2021, 1,­loads/public­a­tions/people-in-jail-and-prison-in-spring-2021.pdf []. For jail admis­sions, see Zhen Zeng and Todd Minton, Jail Inmates in 2019, U.S. Depart­ment of Justice, Office of Justice Programs, Bureau of Justice Stat­ist­ics, 2021, 1, []. Mass incar­cer­a­tion — a term now entrenched in the popu­lar lexicon — is prov­ing remark­ably resist­ant to well-inten­tioned reforms. foot­note4_p2uu13x 4 David Garland described the distinct­ive expan­sion of “mass impris­on­ment” in the United States between 1975 and the late 1990s as deriv­ing from a new regime of crim­inal penal­ties that raised incar­cer­a­tion rates on a quantum scale, apply­ing policies and prac­tices to entire categor­ies of people rather than indi­vidu­als. See David Garland, ed., Mass Impris­on­ment: Social Causes and Consequences (London: Sage, 2001). The terms “mass impris­on­ment” and “mass incar­cer­a­tion” were adop­ted by many other crim­in­o­lo­gists as well as civil rights activ­ists. See, for example, Bruce West­ern, Punish­ment and Inequal­ity in Amer­ica (New York: Russell Sage Found­a­tion, 2006); Marc Mauer and Meda Ches­ney-Lind, eds., Invis­ible Punish­ment: The Collat­eral Consequences of Mass Impris­on­ment (New York: The New Press, 2002); and Michelle Alex­an­der, The New Jim Crow: Mass Incar­cer­a­tion in the Age of Colorblind­ness (New York: The New Press, 2012). The terms were even­tu­ally even absorbed into the language of offi­cials. For example see, Pres­id­ent Barack Obama, “Remarks by the Pres­id­ent at the NAACP Confer­ence,” speech delivered at the 2015 NAACP confer­ence, Phil­adelphia, Pennsylvania, July 14, 2015, https://obamawhite­­id­ent-naacp-confer­ence [].

One explan­a­tion can be found in the infra­struc­ture erec­ted to support the United States’ reli­ance on impris­on­ment as the coun­try’s primary crime control policy. Mass incar­cer­a­tion did not result simply from increased poli­cing and harsher crim­inal penal­ties. foot­note5_9ls6j7a 5 For a discus­sion of the increas­ingly punit­ive policy land­scape that has contrib­uted to higher rates of incar­cer­a­tion, see Jeremy Travis, Bruce West­ern, and Steve Redburn, eds., The Growth of Incar­cer­a­tion in the United States: Explor­ing Causes and Consequences (Wash­ing­ton, DC: The National Academies Press, 2014), 70–89. Economic and finan­cial incent­ives estab­lished by local, state, and federal agen­cies also played a role. Police, prosec­utors, and correc­tions agen­cies competed for these bene­fits by escal­at­ing their enforce­ment prac­tices. Law enforce­ment came to depend on these fund­ing sources, partic­u­larly as declin­ing tax receipts and inter­gov­ern­mental trans­fers left them grasp­ing to fill budget holes. foot­note6_obb24nm 6 Heather Schoen­feld, Build­ing the Prison State: Race and the Polit­ics of Mass Incar­cer­a­tion (Chicago: Univer­sity of Chicago Press, 2018), 211–16 (arguing that the constitu­en­cies that helped grow and sustain mass incar­cer­a­tion are not likely to relin­quish their stake in it because they believe the busi­ness of mass incar­cer­a­tion “sustains live­li­hoods, grows careers and supports communit­ies”). These incent­ives are a persist­ent struc­tural driver of punit­ive enforce­ment and mass incar­cer­a­tion.

The perverse finan­cial incent­ives of direct federal fund­ing programs for incar­cer­a­tion are relat­ively easy to identify. So too are laws passed by Congress that encour­age more punit­ive policies. foot­note7_6fl3o67 7 For example, the Viol­ent Crime Control and Law Enforce­ment Act of 1994 incentiv­ized states to pass “truth in senten­cing” laws that reduced the avail­ab­il­ity of parole by prom­ising millions of dollars to compli­ant juris­dic­tions to use to expand their capa­city for incar­cer­a­tion. Viol­ent Crime Control and Law Enforce­ment Act of 1994, Pub.L. 103–322, 108 Stat. 1796,­UTE-108/pdf/STAT­UTE-108-Pg1796.pdf []. Approx­im­ately $2.7 billion was awar­ded between FY 1996 and 2001 as grants to the states and territ­or­ies for construct­ing, expand­ing, or renov­at­ing correc­tional facil­it­ies. See U.S. Depart­ment of Justice, Bureau of Justice Assist­ance, Report to Congress: Viol­ent Offender Incar­cer­a­tion and Truth-in-Senten­cing Incent­ive Formula Grant Program 1, 2012, 6,­uh186/files/media/docu­ment/voitis-final-report.pdf []. This report focuses instead on an inter­lock­ing set of economic incent­ives that are more deeply entrenched and diffi­cult to unravel. These incent­ive struc­tures raise the risk that offi­cials will chase revenue rather than pursue public safety and justice, giving law enforce­ment agen­cies a stake in perpetu­at­ing mass incar­cer­a­tion. This report cata­logs some of the most corros­ive prac­tices.

These perverse economic incent­ives fall into three primary categor­ies:

  • User-funded justice. Through mech­an­isms such as civil asset forfeit­ure, fines and fees, and privat­ized community super­vi­sion, the very people subjec­ted to crim­inal enforce­ment activ­it­ies are routinely made to contrib­ute to the cost of their being arres­ted, detained, charged, prosec­uted, super­vised, or incar­cer­ated. Law enforce­ment offi­cials and agen­cies reap the bene­fits while those trapped in the system struggle to pay.
  • Correc­tional and deten­tion bed markets. Offi­cials seek­ing to alle­vi­ate prison and jail over­crowding by rent­ing space from other juris­dic­tions have created a market in incar­cer­ated people. The federal govern­ment has exacer­bated this demand for bed space, partic­u­larly through stepped-up immig­ra­tion enforce­ment. Fisc­ally distressed counties have seen this market as a solu­tion to their budget woes, often expand­ing their jails to serve it. Incar­cer­ated people, mean­while, are reduced to dollars and cents in this rent-seek­ing ecosys­tem of carceral insti­tu­tions seek­ing to main­tain or grow their oper­a­tions.
  • Enforce­ment-oriented perform­ance metrics. Police depart­ments and prosec­utors’ offices reward staff for meet­ing productiv­ity-based job metrics, such as arrest quotas and high convic­tion rates, and penal­ize those who fall short. With their job secur­ity and career advance­ment at stake, law enforce­ment offi­cials are incentiv­ized to pursue punit­ive meas­ures even when leni­ency might be more appro­pri­ate.

In recent years, poli­cy­makers have come to see how these prac­tices exacer­bate poverty, create conflicts of interest for offi­cials, and dispro­por­tion­ately harm communit­ies of color. This has helped drive progress. But reforms that target specific incent­ives in isol­a­tion can have unin­ten­ded consequences. A roll­back of fines and fees, for example, may simply drive offi­cials to increase civil asset forfeit­ures to fill the anti­cip­ated revenue gap. Propos­als to reduce jail and prison popu­la­tions by moving people into privat­ized community super­vi­sion may enrich for-profit firms while saddling people with costs they cannot afford. foot­note8_seuzkah 8 Michelle Alex­an­der, “The Newest Jim Crow,” New York Times, Novem­ber 8, 2018,­ion/sunday/crim­inal-justice-reforms-race-tech­no­logy.html [–6FC3].

The array of perverse incent­ives in the crim­inal legal system makes unwind­ing mass incar­cer­a­tion extraordin­ar­ily diffi­cult. A compre­hens­ive approach will require an all-out mobil­iz­a­tion by Congress, state legis­latures, local govern­ments, and law enforce­ment agen­cies. To decrease the number of people under correc­tional control, poli­cy­makers must unravel these deeply embed­ded economic incent­ives. At the same time, dissuad­ing public safety agen­cies from prey­ing on the very people they are charged with protect­ing will require that they be adequately and equit­ably funded. This report maps out the perverse incent­ive struc­tures that have helped perpetu­ate the United States’ overly harsh system of punish­ment and outlines reforms that can elim­in­ate, change, or realign them, moving the coun­try toward a more fair and just crim­inal justice system.

End Notes