Last year, the governor of Alabama proposed and then overwhelmingly lost a bitter referendum to increase taxes and boost revenue. Voters rightly saw the campaign as a slick attempt to expand the public sector’s power, prestige, and wealth transfers by increasing the degree of legal plunder in Alabama’s tax system.
It spoke highly of the voters in the Heart of Dixie that they resisted the scare tactics of desperate public officials who threatened dire circumstances if voters didn’t fall into line behind the state’s newly-elected governor, a big-government Republican.1
One threat in particular stood out. The state prison system had become so crowded that the officials were exporting prisoners to private prisons in nearby Mississippi and Louisiana. The governor and his cronies often warned that failure to pass his tax increase would lead to the early release of many criminals. Voters were told that a cost of rejection would be a crime wave of unprecedented proportions. It was a threat worthy of “The Godfather.”
But the voters nixed the tax increases, like voters everywhere almost always do when given the chance. And the prison system did give early parole to many of its convicts. But that often mentioned crime wave never happened. The Birmingham News recently reported that the number of parolees released in Jefferson County last year more than doubled from 261 parolees in 2002.2 “That the parolees, many freed early, have not spawned a crime wave is welcome news. . . . ’The word was: Man, if we let all these people go, the crime rate is going to go sky high,’ said Earl Johnson, house parent at Shepherd’s Fold, a halfway house in the West End.”
Officials marvel at their good fortune, and much credit must be given to the network of private shelters that assist ex-convicts’ transition to life outside the bars. But they would be wrong to ignore the economic explanation for that good fortune. Many of those ex-cons never posed a threat to society in the first place, because they were trapped in the prison system by the judicial commons.
Commons problems describe a type of resource allocation problem that applies to goods in the public sector, and judicial commons is a subset of these problems that apply to the use of the public-sector legal system. In the commons, there are some (nonexcludable) resources to which many have access. When individuals stand to benefit from accessing these goods, each one has a perverse incentive to overconsume them. Any effort to conserve these goods for time period t+1 simply results in more of the good available for others to consume in time period t.
American biologist (and socialist) Garrett Hardin, who is generally credited with identifying the commons problem in 1968, discussed this phenomenon in terms of commonly-owned grazing land.3 Hardin argued that herdsmen allowing their cattle to graze on such land have an incentive to do so as long as grazing land remains available. Many herdsmen, acting independently of each other, can end up overgrazing such common pool resources and ruin them. That is the way it goes when property rights, which include the right to exclude so as to maximize resources’ social value, are poorly defined.
Florida State University economist Bruce Benson has written extensively on the application of this theory to the judicial system. He argues that access to the legal system for lawyers, judges, district attorneys offices, and others, can result in over-consumption in the same way that cattle can overgraze grazing land when many herdsmen have access to it. After all, such individuals are not maximizing potential revenue when prisons and court dockets are not full. Benson writes that4 :
[P]rosecutors and judges have common access to prison space. They have at best only weak incentives to limit the number of prisoners they “herd” into the commons when making their sentencing recommendations and decisions. . . . Indeed, in as much as prosecutors have incentives to demonstrate to their local constituencies that they are “tough on crime,” imprisonment is a relatively attractive punishment. Even if they recognize that their actions add to the crowding problem, their personal benefits (the political support they get from their “tough” image) may exceed their personal costs (perhaps the anxiety associated with the recognition that they are crowding prisons and raising costs to society at large). Thus, imprisonment is chosen relatively frequently. The effect is that prosecutors and judges as a group crowd the common-access prisons much as cattle owners crowd common access grazing land.
State legislators can also crowd the criminal justice commons since, like judges and prosecutors, they have no incentive to conserve scarce prison resources. When passing laws that increase the penalties for drug crimes, such as mandatory minimum sentences, the legislature’s action is equivalent to increasing the number of people who can use the classic grazing commons. Of course, the legislature also has the power to offset the resulting overcrowding since it can increase the number of prison beds, the equivalent of increasing the common land. But the temptation to overcrowd the commons is likely to prevail, since individual legislators are unlikely to suffer any costs from this course of action, particularly in the short run. Legislators can reap political benefits by passing longer sentences for crimes, so they appear to be tough on criminals, while ignoring the fact that the law can undermine other aspects of the criminal justice system. Since expanding criminal justice resources involves the politically unpopular task of either cutting other government functions or raising taxes, the politically astute course of action is to crowd the commons.
Such a system does impose significant costs on society, and these costs are much more than the money costs that strain state prison officials trying to comply with the latest “tough on crime” legislation. The public sector’s desire to expand its prison systems and spend its budgets results in an increasing percentage of the population that has done time. These individuals find themselves at certain disadvantages upon reentering society.
Finding work is difficult. Their addition to the labor supply places a downward pressure on wages, creating friction between them and the existing faction of employed and unemployed workers. Another cost includes the dehumanization and moral deprivation that is a standard characteristic of prison life, which profoundly shapes the character of many who spend time behind bars. There is little wonder that many find their way back into the prison system. Indeed, this result may be by design.
Source: Dr. Carol Veneziano, Southeast Missouri State University
The judicial commons increases the prison population by multiplying the laws, making them easy to break. The result is that the United States, with 5 percent of the world’s population, has 25 percent of the world’s prisoners. (See table nearby.) These numbers are maintained by adding victimless crimes to the legal codes (such as is the case for many drug-related offenses) as well as crimes involving voluntary consent (which include many of the voluntary exchanges that occur in the vast underground economy).
No one is safer as a result of removing the men and women who commit such crimes from society, although their incarceration allows politicians to claim tough-on-crime credentials, and the over-consumption of the judicial commons is allowed to continue for another season.
But once the system is exposed for the fraud that it is, the grazing stops. This is what happened in Alabama when voters saw through crass threats of a crime wave and rejected the governor’s tax proposal. That the promised crime wave turned out to be illusory underscores the fact that many who were incarcerated posed little danger to society in the first place. They served as useful foils for those who stand to profit from the expansion of the judicial commons.
- 1For instance, the state school superintendent at the time threatened to close down the public schools if the referendum wasn’t passed. The voters, by rejecting the proposal, dared him to. Nonetheless, he was rewarded by being named the interim president of Auburn University by the governor.
- 2Carla Crowder, “Parole Rise, Crime Rate Drop Coincide,” The Birmingham News, July 28, 2004, p. A2.
- 3Cf. Garrett Hardin, “The Tragedy of the Commons,” Science, December 13, 1968, pp. 1243–248. Hardin’s theory was based on the 1833 work of mathematician William Foster Lloyd.
- 4Bruce Benson, “The Allocation of Law Enforcement Resources: An Overview of the Commons Problem,” Chapter 2 in David W. Rasmussen and Bruce L. Benson, The Economic Anatomy of a Drug War: Criminal Justice in the Commons (Lanham, MD: Rowman and Littlefield, 1994).
