'Cap and trade' proposal could end mass incarceration

The August edition of the Reasonably Suspicious podcast from Just Liberty included a new segment titled, "Points for Creativity," in which we score creative ideas for criminal-justice reform. In the inaugural rendition, Texas Defender Service Executive Director Amanda Marzullo and I discussed a proposal popularized by Fordham law professor John Pfaff in his (relatively) new book, Locked In. (See Grits' review.) But it was originally suggested as part of a 2014 anthology called The American Prison: Imagining a Different Future.

As Pfaff's book continues to influence American reform debates, and this was his most important reform suggestion aimed at limiting prosecutor power,* it's worth pulling out this segment as a stand-alone. My podcast partner was more skeptical of the idea, but to me, this may be the only proposal Grits has heard with a real chance of reducing mass incarceration in America to levels more typical of the rest of the western world. Most other potential reforms do not scale up nearly as effectively.

The idea is to make county-level decision makers at least partially responsible for incarceration costs of people they send to prison. Natural policy experiments have shown that, when local decision makers must pay for their incarceration decisions, they incarcerate less. By contrast, under the status quo, counties enjoy perverse economic incentives which make it essentially free to order incarceration in prison for an offender. But they must pay if they choose probation and rehabilitation in the community.

Listen to the excerpted segment here, or find a transcript of our conversation below the jump:



Transcript: August Reasonably Suspicious podcast from Just Liberty, "Points for Creativity" segment. Speakers: Scott Henson and Amanda Marzullo

Scott Henson: Today, we launch a new game segment on the podcast called Points for Creativity, in which we discuss creative public policy solutions and score them from zero to 100. This time we'll consider a fascinating proposal for reducing mass incarceration through the creation of economic incentives for local prosecutors and judges using the cap and trade system, modeled after environmental programs to control excessive pollution. The idea comes out of an article published as part of a 2014 anthology called The American Prison: Imagining a Different Future, then later highlighted in John Pfaff's new book: Locked In. In essence, the idea is for the state to issue an allotment of incarceration, which is the cap measured in bed years for each county based on population and crime rates. Then, if those counties want to incarcerate more than their share, they can purchase extra bed years through a straight-up market mechanism. Jurisdiction that incarcerate at lower rates could sell extra bed years and use the money for treatment programming, community supervision, or even tax relief. The proposal would make local decision-makers responsible for the economic consequences of mass incarceration, while providing incentives to reduce success of jailing. So Mandy, what score would you give this idea and how do you think it would play out in Texas?

Mandy Marzullo: So, I'd give this a 75 or an 80. And this is a great idea, which you can tell came from an economist, but would get rid of some of the incentives that have been big drivers in mass incarceration, in terms of putting pressure on counties and then, by extension, prosecutors and judges to send fewer people to prison and when they are sent, to send them for less time. I think part of the problem we would have in Texas is the political environment in some of these jurisdictions that are sending people away for a lot of time, I think would support it. And so, I think there's a need for a counter-narrative about how to discuss prosecutors and judges and, basically, for the effectiveness of the criminal justice system in general, but doesn't use the number of convictions and jail time as a metric.

Scott Henson: Right, although I do think that if you made this change, the prosecutors and judges would be the leaders in creating those new metrics because would, all of the sudden, have to be justifying their own decisions and they would be at the forefront of identifying what those new values are.

I'm a little more optimistic about this idea than you are and maybe it's because I was an economics major that I'm a willing to countenance such a thing, but I’d probably score this at a 90 because I think this gets to the heart of a lot of the incentives that really make mass incarceration the easy option for local decision makers. It's very simple to just say "Okay. This person is an addict and I could put him on probation and try and get them treatment and try and help them and their family or I can make them the Department of Criminal Justice's problem and send them to the state prison and not think about them for a couple of years." And that's cheaper and easier for them, but I think that making it more expensive to make that choice might make a big difference. Certainly, the pushback would be "Oh, well we can incarcerate anyone we want". Well, no. No one can. There are limits.

Mandy Marzullo: And I think part of what you would see is that some prosecutors and judges would come out and say "This is money we need to spend. Ladies and gentlemen, we need to send these people away to protect you". And then, because we have so much stratification in terms of who is being sent away, I do worry that the pockets of Texas that send the most people away aren't going to change and that's where we really need to change the behavior and to have a counter-narrative or another way to talk about why we're incarcerating to begin with and when is it appropriate when it isn't appropriate, need to get in there. And that's been the problem, I think, for the defense and the advocacy community, is that there are a lot of moving parts here.

Scott Henson: Sure.

Mandy Marzullo: And it's hard to come up with a counter-narrative to something that is really complex.

Scott Henson: Right. On the other hand, I have to wonder is it really that big a problem if some jurisdictions would choose to over-incarcerate and choose to pay that extra because think about how that would play out. If they wanted to incarcerate more, then they would have to purchase those extra [bed] years from some other counties. So, say here in Travis County, if we don't incarcerate at the same levels as other counties and we say "Well, we'd rather have tax relief or we'd rather spend money on our greenbelt or we'd rather spend money on treatment programming in our criminal justice system". And so, if people up in Amarillo and Potter county want to pay us a few million dollars extra for bed years that we're not going to use anyway, they want it, we don't. Why shouldn't they get it and why shouldn't there be some economic recompense there? Because the goal of maximizing public safety while minimizing incarceration should be the goal of the system. And so, this starts to reward people who are able to do that.

Mandy Marzullo: But, it doesn't get rid of the problem of what happens when a high profile case results from quote unquote lenient treatment to a potentially violent offender. And those are the cases at the margins and that's where you need to have some other discussion, some other narrative about the system in general, in order to combat it.

Scott Henson: And there actually was a suggestion in that article …

Mandy Marzullo: That you exempt homicides.

Scott Henson: The highest level offenses, that's right. So, you're not going to have rape and murder be subject to this, but this is really more about the more volitional low level stuff: the property offenders, the drug offenders, the low level fist fight in the bar, this sort of thing.

Mandy Marzullo: Which can do a lot, but I still get nervous about it. So, I'm sticking to my C, B minus rating.

Scott Henson: Alright, you're a tough grader.

* Pfaff's other big reform suggestion was for "plea bargain guidelines" to govern prosecutorial decisions. But sentencing guidelines at the federal and state level contributed to increased incarceration and there are no real-world examples of guidelines working in the fashion he hypothesizes, particularly regarding people convicted of violent crimes.