Rationing Criminal Justice

Richard A. Bierschbach* & Stephanos Bibas**

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. Treating punishment like other public-law problems of regulation suggests various regulatory tools as potential solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

* Dean and Professor of Law, Wayne State University Law School.

** Professor of Law and Criminology and Director, Supreme Court Clinic, University of Pennsylvania Law School. We thank Hadar Aviram, Miriam Baer, W. David Ball, Jane Bambauer, Rachel Barkow, Mitchell Berman, Mike Burstein, Darryl Brown, Andrew Coan, Cary Coglianese, Adam Gershowitz, Todd Haugh, Andrew Hessick, Carissa Hessick, Paul Heaton, Eisha Jain, Catherine Kim, Jason Kreag, Maggie Lemos, Jonathan Masur, Sandy Mayson, Ion Meyn, Max Minzner, Stephen Morse, Richard Myers, Lauren Ouziel, John Rappaport, Alex Reinert, Kevin Stack, Elina Treyger, Deborah Weissman, Erica Wilson, and participants in the 2016 Annual Meeting of the Law & Society Association, CrimFest at Cardozo Law School, and faculty workshops at the University of Arizona, University of North Carolina, and University of Pennsylvania law schools for valuable comments on earlier drafts, and Nathan Muchnick for excellent research assistance. Copyright © 2017 Richard A. Bierschbach & Stephanos Bibas.

Download as PDF