The Efficiency Mindset and Mass Incarceration

Abstract

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort. As such, it makes sense that lawyers and judges see efficiency, especially in the form of plea bargaining, as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system. But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration.

To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset. Legal culture change in criminal courts is unlikely to be driven by legislation, court action, or lawyers and judges themselves. Instead, this Essay suggests other sources of power that may break the efficiency mindset. By examining these sources of power—both inside and outside of the legal culture—the Essay hopes to offer some ideas for how legal actors might start to, or be forced to, re-envision their role in mass incarceration.

Keywords: plea bargaining, criminal procedure, criminal law, judges, prosecutors, defense attorneys, legal culture, legal norms, efficiency, decision-making