Monday, April 23, 2012

New Article: Prison Vouchers, by Sasha Volokh

Alexander Volokh (Emory Law School) has an innovative article forthcoming in the University of Pennsylvania Law Review - Prison Vouchers, which makes a unique contribution to the field of academic literature on privatized prisons.  While most of the published articles about privatized prisons (including those featured on the Privatization Blog) focus on the policy concerns about the prisons themselves - their relative cost to the taxpayer, the perverse incentive that the private prison firms have to lobby for longer sentences, and the problems with legal redress for prisoners injured by private prison guards - Volokh takes the discussion in an entirely new direction, asking what prisoners would select if they had the choice.  Here is the abstract from SSRN:

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons - what if convicted criminals could choose their prison rather than being assigned bureaucratically?
Under a voucher system, prisons would compete for prisoners, meaning that they will adopt policies valued by prisoners. They would be more flexible as a constitutional matter - faith-based prisons would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, decent health care, and good educational and vocational opportunities - features that are also valued by prison reformers and have rehabilitative value.
The counterarguments are twofold. “Market failure” arguments hold that, because of informational or other problems, prisoner choice would not succeed in improving overall prison quality. “Market success” arguments, on the other hand, hold that prison choice would improve prison quality too well, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force, but it is still possible that these disadvantages are outweighed by the socially desirable improvements.  I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.
As much as I doubt the prudence of privatized prisons - mostly because I think they end up being a bad deal for taxpayers, and present legal issues that our courts are not yet prepared to handle - I have to agree with him about the voucher proposal.  Allowing individual choice disaggregates the decisionmaking in this policy area somewhat, thereby lowering the risk of systemic error.  One problem with the private prison industry is that there is often little or no competition for the contracts from the state to build the prisons; without true competition, there is no "market discipline" to improve efficiency or quality.  Vouchers introduce competition from the other end, providing both state and private institutions incentives to improve their internal conditions and their efficiency in providing the associated services.  I could see a similar model being applied to immigrant detention centers.

UPDATE: Giovanna Shay has a thoughtful response piece to Volokh's article on PENNumbra.  Both are very worthwhile reading.

 - Dru Stevenson


  1. Market success and market failure are not inconsistent with each other. Imagine a law which says that shoplifters can be shot. The law would both succeed too well (shoplifters would start getting shot) and fail (innocent people would get shot too).

  2. I seem unable to comment on this using Firefox and Livejournal. It doesn't redirect me to the captcha page.

  3. Your comments seem to have posted just fine. Thank you for contributing to the discussion.

  4. My comments posted fine because I used Internet Explorer specifically to post here after Firefox didn't work.

  5. My objection is that the "customer" for a prison is not the prisoner, or not entirely so. Part of the point of sentencing someone to prison is to remove his freedom to control or ameliorate his circumstances, or even to be treated with respect as a full member of a free market economy.

  6. I read the article and it is a great think piece. Sasha shared the article with me. Sasha is a gifted scholar who thinks outside the box.