Revenue Over Public Safety

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. ¹ 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). ² Nearly 1.2 million people are serving sentences in state and federal prisons, and 10.3 million are admitted to local jails every year.³ Mass incarceration — a term now entrenched in the popular lexicon — is proving remarkably resistant to well-intentioned reforms.⁴

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. ⁵ 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. ⁶ 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. ⁷ 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.⁸

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.