Rationing Criminal Justice

60 Pages Posted: 1 Mar 2017 Last revised: 2 Nov 2017

See all articles by Richard A. Bierschbach

Richard A. Bierschbach

Wayne State University Law School

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2017


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 rough 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.

Keywords: Punishment, sentencing, policing, externalities, criminal justice, criminal law, criminal procedure, prosecutors, prisons, parole, regulation, regulatory budgets, state and local government, cost-benefit analysis, cap and trade, taxing, devolution, localism, distributive justice

Suggested Citation

Bierschbach, Richard A. and Bibas, Stephanos, Rationing Criminal Justice (2017). Michigan Law Review, Vol. 116, p. 187, 2017, Cardozo Legal Studies Research Paper No. 512, U of Penn Law School, Public Law Research Paper No. 17-10, Available at SSRN: https://ssrn.com/abstract=2924584

Richard A. Bierschbach (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

Stephanos Bibas

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

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