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Tragedy from incentives

The Tragedy of the Commons in the American Prison System

Where legislators and police officers have in-built incentives to send as many people through the courts as possible, a similar incentive is faced by judges and prosecutors to send defendants through the prison system. Because all judges and prosecutors share common access to prison space with no individual cost for doing so, there is zero incentive for the limitation on the sentence sought by the individual prosecutor or handed down by the individual judge.

There is, however, the incentive for these professions to win cases and appear “tough on crime,” respectively. “The effect,” as Bruce Benson and David Rasmussen tell us, “is that prosecutors and judges as a group crowd the common-access prisons much as cattle owners crowd common access grazing land.”

Legislators, again, also have an incentive to crowd the prison commons. To market themselves as “Drug Warriors,” they are incentivized to pass mandatory minimum sentencing laws, which are often even more severe at the state level than the federal. In this case, the prisons are crowded by a specific type of criminal: drug users. Because resources are scarce, mandatory minimums targeting drug crimes mean that drug users and dealers are increasingly competing for space with murders, rapists, and thieves — criminals for whom mandatory minimum sentences are not imposed.

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