America should abolish prisons. Perhaps not all of them, but very close to it.
That’s the argument in a recent, provocative paper by Peter Salib, a judicial clerk to Seventh Circuit Court of Appeals Judge Frank Easterbrook.
According to Salib, the idea behind the criminal justice system should be to punish and deter crimes. But prisons are arguably a very inefficient way to do that. The research shows that long prison sentences have little impact on crime, and a stint in prison can actually make someone more likely to commit crime — by further exposing them to all sorts of criminal elements. At the same time, prisons are incredibly costly, eating up funds that could go to other government programs that are more effective at fighting crime.
So why not, Salib suggests, consider alternative approaches to punishment that can let someone actually pay their debt back to society without forcing taxpayers to shoulder the burden of paying for his full confinement?
Salib gave the example of an accountant who burned down an office building. Instead of locking him up for potentially decades, Salib suggests keeping an eye on him through other means, such as GPS monitoring, and forcing him to work as an accountant to pay back the cost of the office building. This would, he argues, be much better for everyone involved; the office building owner gets paid back for the damage, and society has to pay much less to confine this person.
The idea is a bit discomforting, not least because it sounds like forced labor or slavery. Coupled with the massive racial disparities in the justice system, the idea takes an ugly turn.
But Salib makes two points: First, forced labor is certainly punishing, but prison is very punishing as well — arguably more so.
Second, Salib argues that we can try to make the justice system fairer while changing how it punishes people. “If you think that we shouldn’t punish as many minorities as we do now, that’s fine,” he told me. “I’m not asking about who we should punish; I’m asking about how we punish the people we do punish.”
This isn’t a wholly new concept. Previously, Dylan Matthews wrote for Vox about how we could get rid of prisons by using location-tracking technology to monitor offenders while otherwise letting them live productive lives. And criminal justice experts Mark Kleiman, Angela Hawken, and Ross Halperin previously proposed a “graduated reentry” system that would similarly monitor people convicted of crimes, but incentivize them to slowly re-earn their freedom by proving their rehabilitation — getting a job, following a curfew, not committing other crimes, and so on. This could incentivize the inmate to be productive, while avoiding the higher costs of prison.
Still, Salib makes one of the clearer cases for how this change would be better not just for prisoners, but for society as a whole. You should read the full paper for more detail. But to follow up on some of the lingering questions I had — how his system works for murderers, and what kinds of exceptions he envisions that would still warrant prison — I reached out to Salib. What follows is our full conversation, edited for length and clarity.
What is the main argument in your paper?
We start with the law and economics premise of criminal punishment, which is that the main thing we’re interested in when we punish people is deterring anti-social behavior — imposing costs on people so it’s not advantageous for them to make everyone’s life worse.
For various reasons having to do with how hard it is to figure out when people are doing bad stuff to sufficiently deter them, the costs have to be sufficiently high. In layman terms that means we usually can’t just extract money from them, but we sometimes have to do other things. The way our system usually does that now, if criminal punishment is necessary, is imprisonment.
The argument in the paper is that if our starting premise is the economic premise of minimizing social costs, we should look at other social costs [related to prison].
It turns out prison is really costly. It may be pretty good at deterring the bad acts we want to deter. But it has high administrative costs. It creates a lot of perverse incentives.
And, most importantly, if I’m a guy who would otherwise be a productive member of society and I get put in prison, part of the cost to me of being in prison is that I don’t get to earn any money and enjoy the fruits of my labor while I’m in prison. It turns out that’s also a cost to society: If there was some other punishment that also allowed me to work in a socially productive way, we could take the money I earned and give it to, say, my victims or, if my victim has already been compensated, the government or a nonprofit that would distribute it to other people who need it. That would be a lot better from a social standpoint.
The second half of the paper says it’s not so out there that we could have a different system besides prison. When somebody is convicted of having done some bad stuff we think needs to be deterred, we first exhaust the monetary transfers we could make. So we say you have to keep working to pay your debt to society with actual money to the extent you can.
If it turns out there needs to be additional costs on the person, there are lots of additional things you could do. There are some that are historical, and maybe people think some of those are too horrible and archaic. But if you don’t like those, you can pick anything you like. You could have public shaming as a punishment. If you don’t think that’s harsh enough, you could have other modern-day costly punishments — you could make people eat very spicy peppers on a regular basis or have them do something else that’s unpleasant on a regular basis.
The idea is that there are options that don’t keep people from working and remaining a productive member of society. So not a drain, but rather beneficial to others while still being deterred.
The way we usually talk about prison, we mostly talk about the costs to the prisoner. “Now he has to pay for his crime”: That’s the frame most people think about with prisons. But I think you’re right that people tend to overlook some of the other social costs. To give readers a better idea of what some of the social costs of prison are, could you walk me through them?
Say I’m an accountant. But I have a streak of pyromania, so I burn down a big office building.
Under the current system, I go to prison. Let’s say I get sent to 30 years of prison for serious arson. Part of the cost for me is, in addition to being confined to my prison cell and not being able to be with my family and loved ones, I don’t get to earn any money while I’m in prison. And when I get out, I have foregone 30 years of my salary. That’s a cost to me. But it’s also a cost to everyone else.
Imagine if instead of getting sent to prison, the court tells me I have to repay the costs of the office building. But I don’t have the savings to do that. If instead of being sent to prison, I was forced to continue working as an accountant to give, say, 80 percent of my earnings for however long to whoever’s office building I burned down, that would actually be a lot better to the guy whose office building I burned down.
The fact that I get sent to prison and am prevented from earning any wealth while I’m there is as much taking money out of my victim’s pocket as it is taking money out of my pocket.
I could see someone latching onto that framing and arguing that sounds a lot like forced labor or slavery, especially with racial disparities in the criminal justice system. It could have some pretty ugly implications. How would you respond to that?
I do worry about it. Part of the reason I don’t engage with it very much in the paper is, one, the paper is really supposed to be narrowly a law and economics piece. There are other kinds of reasons we might want to do this. There are moral objections to this and some of the alternative punishments being imposed. As a law and economics matter, though, the point is this system is more efficient.
Particularly in regards to racial disparities in incarceration in America, there is a lot of research on that. It is very good. I buy that there are racial disparities that can’t be explained or are hard to explain by good reasons.
But there’s nothing incompatible with the idea that we should be fairer about who we punish and that we might want to punish them in a different way. I can accept the objection that the American system of criminal punishment is unfair along the racial lines. If you think that we shouldn’t punish as many minorities as we do now, that’s fine. I’m not asking about who we should punish; I’m asking about how we punish the people we do punish.
The other thing: If you think forced labor is bad because of American slavery, I don’t think that’s wrong either. I just point out in the paper that prisoners in our current system do work. We do have forced labor for prisoners now. It just turns out there aren’t a lot of ways for people who are locked up in a cell to do high-value labor. So that undercompensates people who are victims of crime who could be compensated more if people were using their talents more productively.
There are some crimes that don’t have a hard monetary value attached to them — like murder, where it’s hard to measure the value of a human life. So how do you approach those situations?
It’s right that it’s very difficult to put a value on a human life. That’s given by the fact that most of us would pay potentially any sum of money to prevent our impending death.
The point of this system is not to put a dollar value on a life and then extract that from the murderer. The point of this system is to figure out how much private cost we want to impose on the murderer to keep him from killing the person in the first place. That might be — in fact, likely is — a lot less than the value of a human life. If you think the value of a human life approaches infinity, you probably don’t have to impose an infinite amount of costs on a potential murderer to deter him from murdering.
So when we’re thinking about how much punishment to inflict, how much private cost to impose on a potential bad actor, we’re really thinking less about the losses of the victim — which can be enormous and likely irreparable. The best we can do in a system of criminal law is figure out what threat we need to make to murderers to keep them from murdering. That’s the cost we’re thinking of.
The idea, then, is that as much of that punishment as possible should be paid in the form of money instead of a form of discomfort, confinement, or things that can’t be transferred. As far as we’re imposing costs on bad actors like murderers, it’s senseless to destroy wealth when we could make those people generate wealth and give it to their victims or give it to their governments.
That’s not to fully say we’ll ever fully compensate the family of a murder victim. The only idea is that there’s no sense in having them lose a loved one and then giving them nothing, because we’ve locked up the person who did it.
What are some of the other alternatives to prison that you think are plausible, besides forced labor?
In the system I suggest, the only way there is some economic efficiency is if there is a required labor component. The whole idea is that instead of destroying people’s wealth, you let them generate wealth and transfer it — either to victims or the government or someone else who we think would do good things with the money. So that’s kind of the baseline.
The idea for additional punishment comes from the fact that if I steal $10,000, you might think that having me pay $10,000 back is good enough to deter me from having stolen it in the first place. But it turns out we only catch some thieves. So if we only catch 50 percent of thieves, and account for my expected value of a $10,000 jewel, the actual [deterrent] value is $20,000 — because there’s only a 50 percent chance I’ll have to pay it back.
The idea is that high penalties are required as long as we don’t catch that many criminals. So we have people work so they repay victims and society so much as that’s possible. But insofar as some people do some socially costly stuff, there will sometimes be a higher required punishment than people can pay for in money. That’s where some other sanction comes in. I call these non-monetary sanctions.
The paper is completely agnostic about what and how many non-monetary sanctions we should impose.
In the American colonial days, we had pillory — putting people in the stock and humiliating them. We had flogging. We had tarring and feathering (although it was often extrajudicial, not sanctioned).
The point isn’t to endorse those punishments. I think there are valid objections to those punishments — especially because they look a lot like the things that we did to American slaves, and that’s very ugly.
The paper says we don’t need to do that. You can invent anything you like. Whatever you think is the right way to impose costs on people who’ve harmed others in society, that’s okay.
There are judges out in America who are inventing these kinds of things. They’re often a little bit silly. So after someone made his daughter sleep in the doghouse, the judge made him sleep in the doghouse. There’s a similar eye-for-an-eye story for a judge who made someone get a very bad haircut.
A lot of people would probably say those are probably not costly enough to impose on many people who do bad things. That’s fine too. Pick something between a bad haircut and whatever you think the extreme is.
If you think part of the effectiveness of prison is it confines people, you could have people live in very confining conditions when they’re not working. It could be, really, anything that we think, as a society, is humane and effective.
Certainly, punishing people can be hard to stomach. I agree with that. But one thing I put in the paper is prison is really hard to stomach if you’re intimately familiar with it. Prison is a place where we send people to be subject to incredible rates of violence, incredible rates of sexual assault, [and] often more limited medical care.
If you object to how brutal prison is, then under my system you can impose something less brutal in the world. But you shouldn’t object to moving away from prison to something that seems brutal without also recognizing that prison as we do it now is a pretty nasty place.
I wanted to bring that up. I think there’s an underlying bias for the status quo. People don’t always think of prison as this brutal place. But as you mentioned, there are high rates of violence and sexual assault. Even if there weren’t higher rates of violence, just imagining yourself in a position where you are stuck somewhere for years in this monotonous, terrifying situation, that still seems like a brutal environment to be in. So while flogging seems harsher to me, it’s certainly true that prison is harsh. It’s bizarre to not consider that when criticizing or vetoing these other forms of punishment you mentioned.
So it seems like the point is that people should think about alternative punishments more seriously and start thinking outside the box for this, acknowledging that prison is by itself fairly harsh and inefficient.
One reason for the status quo bias is we need prisons to keep dangerous people out of society and therefore prevent them from committing crime. But I think alternatives to prison might actually do better on that count.
There’s a fair amount of research that there’s actually a causal relationship between years of imprisonment and lifetime crimes committed. We think prison as reducing crime, because it takes people who we think would commit crimes and puts them away so they can’t commit them. But it actually has the opposite effect: Maybe you can’t commit a crime while you’re in prison, but you commit a bunch more [crimes] once you get out.
So for many people who commit crimes, it may be possible to stop them from committing more crimes while they’re out in the world, working and contributing to society, because we have all this cool technology now that we didn’t have before. We have very good location-detection technology. We can really make sure people are where they’re supposed to be using biometric technology. We can monitor them. Our smartphones have every kind of data transfer you’d like, from voice to video to pictures to text.
We just have to think outside the box with how we use criminal punishment as a mechanism for preventing future crimes in a way that doesn’t involve just putting people in a cage.
Are there exceptions in this system? Are there some people who do need to go to prison?
There are at least some murderers — I’m thinking of, at the very least, the kind of psychotic serial killers, the Ted Bundys of the world — that probably we really should keep away from society. Insofar as there is some percentage of people who really are an irreparable danger to society, the paper concedes that okay, maybe those people really do need to be locked up.
It might not be everyone who commits a violent crime, but there are certainly some people for who prison is the right answer. But it’s almost certainly a small fraction of the millions we incarcerate in America now.