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Incarceration Incentives in the Decarceration Era

Posted by on Friday, January 15, 2016 in Articles, Volume 69, Volume 69, Number 1.

Incarceration Incentives in the Decarceration Era


After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.


Assistant Professor, Florida State University College of Law; J.D., Stanford Law School; B.A., Yale University. Thanks to David Barron, Elaine Bernard, Michael Coenen, James Coleman, Sharon Dolovich, Ronald Eisenberg, Richard Fallon, James Forman, Barbara Fried, Charles Fried, Jacob Gersen, John Goldberg, Louis Kaplow, Mark Kelman, Michael Klarman, Cecelia Klingele, Adriaan Lanni, Lawrence Lessig, John Manning, Daniel Meltzer, Bernadette Meyler, Martha Minow, Bradley Oppenheimer, Josh Page, Joan Petersilia, Leah Plunkett, Chris Robertson, Laura Rosenbury, Ben Sachs, Emily Satterthwaite, Margo Schlanger, Giovanna Shay, David Sklansky, Sonja Starr, Carol Steiker, Matthew Stephenson, Adrian Vermeule, Alexander Volokh, Robert Weisberg, Bruce Western, Alex Whiting, and workshop participants at CrimFest, Criminal Law & Procedure Faculty Conference, UNAM’s Institute for Social Research Conference, the European Consortium for Political Research Conference, and Harvard University’s Edmond J. Safra Center for Ethics for helpful comments and conversations. Tori Anderson, Philippa Greer, Leonard Powell, Caelyn Stephens, and Susan Zhu provided excellent research assistance.