Wisconsin Lawyer: Mass Incarceration: The Fiscal & Social Costs:

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    Mass Incarceration: The Fiscal & Social Costs

    Changes to state sentencing and corrections policies that take a holistic view of how the different components of the criminal justice system interact could significantly reduce corrections costs.

    Michael O'Hear

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    In the April issue of Wisconsin Lawyer, Mary Prosser and Shannon Toole provided an overview of the phenomenon of mass and disparate incarceration in Wisconsin.1 This article explores one aspect of mass incarceration in somewhat more depth: costs. More specifically, this article covers both the fiscal costs to taxpayers and a broader set of social costs and then considers the potential for fiscal-cost savings through decarceration – that is, changes to sentencing and related policies that are intended to reduce the size of the state prison population.

    Prosser and Toole have suggested several promising decarceration reforms, as have other authors in Wisconsin and elsewhere.2 Although I don’t discuss any such ideas in detail here, I hope that an appreciation of the costs of mass incarceration encourages further consideration of potential reforms.

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    Fiscal Burdens

    Wisconsin’s Department of Corrections has an annual budget of approximately $1.2 billion, the great majority of which goes to fund adult correctional institutions in the state. This budget has grown dramatically since the 1970s, roughly in proportion to the equally dramatic increase in the size of the state prison population. Hard though it may be to believe, corrections spending stood at only $137 million in 1984 (about one-quarter of the current level in constant dollars).3

    Michael O’HearMichael O’Hear, Yale 1996, is a professor at Marquette University Law School. Before joining the Marquette faculty, he practiced civil and criminal litigation with Sonnenschein Nath & Rosenthal in Chicago.

    Table 1 (see Prison Populations and Costs, 2015) puts the budgetary figures in comparative perspective, with data from Wisconsin and its adjoining states. Wisconsin’s prison cost of $150 per state resident is relatively high in this group, second only to Michigan’s $157. Minnesota’s cost is about one-half of Wisconsin’s, while Iowa’s is about one-third less.

    The lower costs in Minnesota and Iowa are proportional to the lower imprisonment rates in the two states. To some extent, the differences in imprisonment rates reflect differences in violent crime rates; however, the cost gap between Wisconsin and its two lowest-imprisoning neighbors is much larger than the crime gap. In other words, higher corrections spending in Wisconsin cannot be explained solely by reference to the state’s higher crime rate.4

    Comparisons of state prison figures can sometimes be misleading because they do not include individuals held in local jails under the jurisdiction of local authorities. If, as a matter of law or practice, a state relies heavily on jail sentences, then the state’s prison budget might not reliably indicate its relative costs of incarceration. However, even factoring in the people held in local facilities, Wisconsin’s total incarceration rate (780 prison and jail inmates per 100,000 adult residents) remains considerably higher than those of Iowa (540) and Minnesota (390).

    The comparisons here echo the national research, which finds only very loose and inconsistent relationships between a state’s crime rate and its incarceration rate.6 To a great extent, the legislators and criminal justice officials in a state collectively determine what that state’s incarceration rate will be through their distinctive policies and practices. Taxpayers then foot the bill.

    Table 1: Prison Populations and Costs, 20155

    State

    Prison Population

    Prisoners per 100,000 State Residents

    Major Violent Crimes per 100,000

    Prison Budget

    ($mm)

    Cost per Inmate

    Cost per State Resident

    Illinois

    47,622

    371

    370

    1,596

    $33,507

    $124

    Iowa

    8,195

    262

    274

    311

    $37,908

    $99

    Michigan

    43,375

    437

    427

    1,553

    $35,809

    $157

    Minnesota

    9,760

    178

    229

    404

    $41,366

    $74

    Wisconsin

    22,461

    389

    290

    868

    $38,644

    $150

    Social Costs

    Discussions of the costs of mass incarceration typically center on the fiscal burdens. These costs are relatively easy to count and are important in a direct and immediate way to state legislators. However, the broader social costs of mass incarceration may plausibly be far greater. The major areas are costs to the imprisoned individual, costs to his or her family, and costs to his or her community.

    Costs to Individuals. As for costs to the individual, there are first the harms and privations associated with time in prison (lost income, lost opportunities to associate with friends and family, and so on). The magnitude of these costs can vary considerably from institution to institution and inmate to inmate. For instance, recent research indicates that certain groups of inmates – for example, women, mentally ill individuals, and nonheterosexual individuals – face elevated risks of sexual victimization behind bars, and that rates of sexual victimization vary from essentially none in some institutions to 10 percent or more in others.7

    Research also indicates that mentally ill inmates are more likely to be placed in solitary confinement, and that this experience tends to exacerbate mental-health problems and make them harder to treat after release.8 Nationally, it is estimated that upwards of one-half of all prisoners suffer from some form of mental disorder, not including substance-use disorders.9 Some of these disorders predate incarceration, while others are brought on by experiences in prison.

    Overcrowded institutions – a chronic problem in this era of mass incarceration – present particular threats to the mental and physical well-being of inmates. Research finds that overcrowding is associated with elevated blood pressure, increased complaints of illness, heightened stress and arousal, drug use, and suicide.10

    The costs of incarceration to the individual do not end with release from the institution. For instance, it is estimated that approximately one-half of inmates remain unemployed even a full year after release,11 while approximately 10 percent experience homelessness.12 To some extent, such bleak figures reflect the persistence of pre-incarceration deficits in areas like education and mental health, but the difficulties of “reentry” also result in part from the stigma of incarceration, the erosion of job and social skills behind bars, the breakdown of potentially beneficial social relationships outside prison, and the legal disabilities that follow from a felony conviction.

    Overcrowded institutions – a chronic problem in this era of mass incarceration – present particular threats to the mental and physical well-being of inmates.

    Costs to Families. Moving from the individual, a growing body of research documents the variety and magnitude of the costs that may be suffered by a family when one of its members is imprisoned. Nationally, more than one-half of prisoners have minor children.13 Most imprisoned parents indicate that they were the primary source of financial support for their children, and close to one-half report that they lived with their children before their arrest or incarceration.14

    Not surprisingly, then, research indicates that the incarceration of a parent may contribute to family financial distress, often putting families that were already struggling over the edge into economic crisis. One recent study of families with an incarcerated member found a multitude of financial burdens associated with the conviction and sentence, including:

    • Attorney costs,

    • Court fees and fines,

    • Telephone charges,

    • Visitation expenses,

    • Loss of income from the incarcerated member, and

    • Mental-health treatment needs.15

    The researchers observed that the direct costs alone “often amount to one year’s total household income for a family.” Most of the families in the study struggled with meeting basic food and housing needs.

    Consistent with these observations, several controlled studies have found that parental incarceration is associated with a heightened risk of child homelessness.16 Other studies find an association between a father’s incarceration and the mother’s receipt of food stamps and other public benefits.

    A number of controlled studies also find an increased incidence of behavioral problems, particularly aggression, among children with an incarcerated father.17 (The effects are especially clear for boys; the research has produced less consistent results as to girls.) Similarly, several studies find an association between paternal incarceration and rates of delinquency and arrest among their male children.18 Research on academic achievement is more mixed, but parental incarceration (maternal or paternal) does seem associated with the completion of less schooling.19

    The difficulties of “reentry” also result in part from the stigma of incarceration, the erosion of job and social skills behind bars, the breakdown of potentially beneficial social relationships outside prison, and the legal disabilities that follow from a felony conviction.

    Costs to Communities. Moving to the community level, there are striking geographic disparities to the mass-incarceration phenomenon. A committee of the National Academy of Sciences recently summarized the research this way:

    “The communities and neighborhoods with the highest rates of incarceration tend to be characterized by high rates of poverty, unemployment, and racial segregation. In particular, the geography of incarceration is contingent on race and concentrated poverty, with poor African American communities bearing the brunt of high rates of imprisonment. The same places also have high levels of violence and frequent contact with criminal justice institutions.… The spatial inequality of incarceration is a general phenomenon across the United States and is seen in multiple cities.”20

    An increasingly well-known example in Wisconsin is the neighborhood on Milwaukee’s near-northwest side within the 53206 zip code – said to be the zip code with the highest rate of incarceration in the United States. Based on U.S. Census data, this 95-percent African-American community displays multiple signs of disadvantage, including a 22-percent unemployment rate and a 45-percent poverty rate in 2016.

    Out of an adult male population of approximately 7,260, more than 4,000 men have either served time in a state prison or are currently incarcerated in a state institution.21 The incarceration rate would likely be even higher if residents held in local jails were included. After mapping the home addresses of the former prisoners in 53206, two researchers observed that “nearly every residential block in the neighborhood had multiple numbers of ex-offenders with prison records.”22 In Milwaukee as a whole, the researchers determined that more than one-half of the African-American males between the ages of 30 and 44 either were in a state prison or had been held in such an institution in the past.23

    The available research does not permit any firm conclusions as to whether high incarceration rates in neighborhoods such as 53206 independently exacerbate patterns of socioeconomic disadvantage.24 The traditional view is that incarceration benefits troubled communities by deterring crime and incapacitating dangerous individuals. However, there seems a growing appreciation among researchers that, when it comes to putting offenders behind bars, there can be “too much of a good thing”; while a certain degree of incarceration in a high-crime, disadvantaged community may be beneficial, at some point, continued increases in incarceration become damaging.

    Concerns focus on five areas. First, high incarceration rates create instability as large numbers of individuals are being continually removed from the community and then returned a few months or years later. Some scholars argue that this instability disrupts the mechanisms of informal social control that can help to reduce crime and disorder.25 Second, because men are incarcerated far more frequently than women, high incarceration rates in a neighborhood give rise to significant male-female imbalances, which lead to lower rates of marriage and higher rates of nonmarital childbearing.26 Even after release, previously incarcerated men may be regarded as undesirable partners in marriage and parenting because of their reduced economic prospects.

    Several studies find an association between paternal incarceration and rates of delinquency and arrest among their male children.

    Third, as noted above, parental incarceration does seem to produce worse outcomes for children in a number of ways, which suggests that incarceration may be contributing to the intergenerational transfer of disadvantage. Fourth, a growing body of research indicates that incarceration can increase recidivism risks for many offenders,27 which may exacerbate crime problems in the neighborhoods to which former prisoners so disproportionately return.

    Finally, high rates of incarceration in a community may contribute to feelings of distrust of the law and legal institutions,28 perhaps especially if racial bias is seen as playing a role in disparate incarceration.29 Such views may produce a variety of adverse effects, including less cooperation with law enforcement authorities.

    In sum, mass incarceration is associated with many social costs that go well beyond the fiscal. To be sure, many people will be untroubled by the costs borne by offenders themselves, on the theory that these costs are simply their just deserts or function usefully as a deterrent. Whether the individual costs are fully justified on these theories requires an uncertain and doubtlessly contentious weighing of social values. However, the costs borne by families and children might be more widely viewed as concerning, as also might be the costs borne by those neighborhoods of concentrated disadvantage that would experience great difficulties even without the overlay of mass incarceration.

    Benefits

    Although this article focuses on the cost side of the cost-benefit calculus, it is important to acknowledge that incarceration can generate significant offsetting social benefits. Public safety is the benefit most often cited by the defenders of current incarceration levels. Sophisticated statistical analyses support the view that rising incarceration rates in the United States in the 1970s and 1980s likely played an overall helpful role in controlling crime.30

    However, it is much less clear that continued growth in incarceration in the 1990s and beyond has been beneficial, especially with respect to violent crime.31 Rather, the research suggests that incarceration growth has been subject to the phenomenon of diminishing marginal returns. This may follow from the dynamics of risk and incapacitation. When a society’s incarceration rate is low and its crime rate high, which may be a good description of the United States in the 1970s, there should be plenty of demonstrably high-risk individuals on the streets whose incapacitation behind bars would reliably reduce crime.

    While a certain degree of incarceration in a high-crime, disadvantaged community may be beneficial, at some point, continued increases in incarceration become damaging.

    However, as incarceration rates rise and crime rates fall, which has been more or less consistently the situation in the United States since 1990, there are fewer and fewer demonstrably high-risk individuals left to incapacitate. More and more, society will be incarcerating lower-risk individuals or holding previously high-risk individuals longer than necessary. Then, too, the adverse, crime-increasing neighborhood effects noted in the previous section might also come into play. Given these dynamics it should not be surprising that, as Prosser and Toole discuss, a few states have succeeded in achieving large reductions in their prison populations without experiencing any concurrent increase in their crime rates.

    Prospects for Fiscal Cost Savings

    Given that corrections budgets rose sharply across the United States during the era of mass incarceration, it seems obvious that decarceration would save taxpayers money, right? Several states have indeed achieved significant fiscal savings in recent years that seem connected to reduced incarceration. Table 2 (see Prison Population and Cost Reductions, 2010-15) provides the numbers from four states that had particular success between 2010 and 2015. Notably, over the same time period, violent crime rates also fell in each of these states.

    At the same time, it is important to realize that hoped-for fiscal savings do not always materialize from reductions in imprisonment. Of the 16 states that cut their prison populations by at least 3 percent between 2010 and 2015, only nine also managed to reduce their prison spending.33

    At least three pitfalls must be kept in mind. First, while the average cost per inmate approaches or exceeds $30,000 in most states, the marginal cost of each inmate is much lower.34 As a result, it is hard to achieve big savings from decarceration unless whole facilities are closed, which can present serious political and operational challenges for a state. These challenges are not impossible – New York, for instance, has closed 14 prisons since 201035 – but, if they not are successfully met, the fiscal savings from reduced incarceration are apt to be disappointing.

    The decarceration benefits of sentencing reform may be significantly undermined by the community supervision “back door.”

    Second, to achieve significant decarceration, policymakers must adopt reforms that either divert a larger share of offenders from prison or that reduce the average length of stay in prison. Either way, reforms are apt to inflate the number of offenders on community supervision (probation, parole, or extended supervision). However, it is important to realize that community supervision serves not simply as an alternative to incarceration, but actually often becomes a back door to incarceration. Revocations of supervision are common, as are short terms of incarceration that can function as an alternative to revocation. Thus, a swelling tide of supervisees today likely means a swelling tide of individuals entering incarceration through the back door a few months down the road.36

    North Carolina might serve as a cautionary tale. The state adopted a complex, multifaceted “justice reinvestment” bill in 2011 to deal with the fiscal challenges created by a rapidly growing corrections budget.37 The state then shed more than 2,000 prison inmates in approximately one year – a remarkable drop that was accomplished without any increase in crime – but then decarceration mostly stalled.

    A closer look at the data reveals that, after the big first year, North Carolina’s further progress in reducing its number of new prison sentences was being offset by a growing number of parole revocations. Additionally, jail and alternative-to-revocation incarceration was also growing.

    While the North Carolina experience reflects the particular interplay of various aspects of its unusual reform package, the bigger lesson for other states should not be lost: the decarceration benefits of sentencing reform may be significantly undermined by the community supervision “back door.” To moderate this dynamic, reforms to community supervision, including those suggested by Prosser and Toole in their article, ought to be considered alongside sentencing reforms.

    Third, with average lengths of stay dramatically increased over the past generation, prison populations are rapidly aging in Wisconsin and across the United States. In turn, a booming cohort of older prisoners means that prison health care costs are also soaring. One recent national study found the average cost of a prisoner age 50 or older to be $68,000 per year – twice the overall average.38 Given these growing and disproportionate costs, the fiscal benefits of decarceration efforts may be blunted if reforms ignore the elderly component of the prison population. As Prosser and Toole suggest, it may be helpful to consider expanding the opportunities for early release based on age and extraordinary health conditions.

    Table 2: Prison Population and Cost Reductions, 2010-1532

    State

    Prison Population Change

    Prison Spending Change (Dollars)

    Prison Spending Change (Percent)

    Michigan

    -4.1%

    -$221mm

    -12.4%

    New Jersey

    -14.8%

    -$159mm

    -10.5%

    New York

    -10.2%

    -$302mm

    -7.6%

    Texas

    -3.3%

    -$262mm

    -7.4%

    Conclusion

    In arguing for decarceration, reform proponents sometimes make too much of average costs per prisoner. “If Wisconsin could reduce its prison population from 22,000 to its 1990 level of 7,000,” I’ve heard it said, “then we could save $450 million each year.” The math – 15,000 prisoners times $30,000 per year – seems straightforward, but the experiences of other states make clear that there is no simple, linear relationship between population cuts and cost cuts.

    The actual cost savings from a 15,000-inmate drop would depend on a multitude of factors, including, among others, how many and which institutions would be closed; how those 15,000 would be supervised in the community; and the age, health condition, and risk level of those inmates. Additionally, if we take a broader view of corrections costs, we might also be concerned about how many of those 15,000 would wind up in local jails at county expense.

    None of this is to discourage reform efforts. With thoughtful changes to state sentencing and corrections policies that take a holistic view of how the different components of the criminal justice system interact with one another, it should be possible to achieve substantial, durable reductions in corrections costs without sacrificing public safety. However, the difficulty in ensuring any particular level of fiscal savings over any particular time period makes it all the more important also to keep in mind the broader social costs associated with mass incarceration.

    Meet Our Contributors

    What is your proudest accomplishment as a lawyer?

    Michael O’HearWhen President Obama announced a clemency initiative for nonviolent federal offenders, I set up a clinic at Marquette to provide assistance to prisoners seeking to take advantage of the program. A small group of students and I reviewed the cases of 18 prisoners and ultimately helped seven to obtain substantial reductions in their sentences.

    One especially gratifying case involved a drug offender who was about 20 years into a life sentence. He had completely turned his life around in prison and had become a leader at his institution in helping fellow inmates in dealing with their substance abuse problems. With his sentence commutation, he is now scheduled to regain his freedom by the end of this year.

    Michael O’Hear, Marquette University Law School, Milwaukee.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 Mary Prosser & Shannon Toole, How Did We Get Here? Wisconsin’s Mass & Disparate Incarceration, 91 Wis. Law. 18 (April 2018).

    2 See, e.g., Michael Tonry, Remodeling American Sentencing: A Ten-Step Blueprint for Moving Past Mass Incarceration, 15 Criminology & Pub. Pol’y 503 (2014).

    3 Michael O’Hear, Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway 92 (2017).

    4 It is sometimes suggested that Wisconsin could save money by contracting with private prisons. Wisconsin did use out-of-state, for-profit prisons extensively in the late 1990s and early 2000s. Id. at 146. Whether private institutions are more cost-effective than public presents a host of difficult accounting problems. Alexander Volokh, Prison Accountability and Performance Measures, 63 Emory L.J. 339, 347-50 (2013). Existing research suggests that private facilities sometimes offer cost savings, but results have not been consistent. Id. at 350-52. There are also important, unresolved questions regarding the relative quality of private and public prisons. Id. at 353-62.

    5 Other than the violent crime rate, the data come from Chris Mai & Ram Subramanian, Vera Institute of Justice, The Price of Prisons: Examining State Spending Trends, 2010-2015 (2017). The crime data are derived from the FBI’s interactive data tool, www.bjs.gov/ucrdata/index.cfm. “Major violent crimes” here means the FBI’s violent index crimes (nonnegligent homicide, rape, robbery, and aggravated assault). Crime data are from 2014.

    6 O’Hear, supra note 3, at 159-62.                                     

    7 Alan J. Beck et al., U.S. Dep’t of Justice, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12 (2013).

    8 Commission on Safety & Abuse in America’s Prisons, Confronting Confinement 60 (2006).

    9 Jennifer Bronson & Marcus Berzofsky, U.S. Dep’t of Justice, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-12 (2013).

    10 Committee on Causes & Consequences of High Rates of Incarceration, National Research Council of the National Academies, The Growth of Incarceration in the United States 180-81 (2013) [hereinafter Growth of Incarceration].

    11 Id. at 233.

    12 Susan Turner, Reentry, in Reforming Criminal Justice: Punishment, Incarceration, and Release 341-55 (Erik Luna ed. 2017).

    13 Lauren Glaze & Laura Maruschak, U.S. Dep’t of Justice, Parents in Prison and Their Minor Children 1 (2010).

    14 Id. at 5, 4.

    15 Saneta deVuono-Powell et al., Who Pays? The True Cost of Incarceration on Families 7 (2015).

    16 Growth of Incarceration, supra note 10, at 267-68. By “controlled,” I mean that the studies attempt to use appropriate analytical techniques to control for the presence of other risk factors besides incarceration.

    17 Id. at 271.

    18 Id. at 272.

    19 Id. at 273-74.

    20 Id. at 283.

    21 John Pawasarat & Lois M. Quinn, Wisconsin’s Mass Incarceration of African American Males: Workforce Challenges for 2013, at 25 (2013). Access the documentary “Milwaukee 53206” at www.milwaukee53206.com/.

    22 Pawasarat & Quinn, supra note 21.

    23 Id. at 13.

    24 Growth of Incarceration, supra note 10, at 282.

    25 Id. at 289.

    26 Id. at 265-66.

    27 Id. at 193-95.

    28 Id. at 291.

    29 Michael O’Hear, Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice, 20 Stan. L. & Pol’y Rev. 463, 475-76 (2009).

    30 Oliver Roder et al., Brennan Center for Justice, What Caused the Crime Decline? 22, 25 (2015).

    31 Id. at 22-25.                                              

    32 Mai & Subramanian, supra note 5, at 14.

    33 Id.

    34 Average costs per prisoner are high because they include all of the fixed costs of running a prison system. Marginal costs, by contrast, are simply the added costs of increasing the prison population by one inmate, which would generally include only relatively low-dollar items such as food and clothing costs.

    35 Id. at 11.

    36 Of course, in addition to these back-door costs, an increase in the number of people on supervision means that community supervision budgets might also swell. However, supervising offenders in the community tends to be considerably less expensive than holding them in prison. For instance, the DOC’s Division of Community Corrections reported a daily offender cost of $8.51 in FY2017, or about $3,106 per year. Div. of Community Corrections, Dep’t of Corrections, 2017: A Year in Review 15 (2018).

    37 Michael O’Hear, The Failed Promise of Sentencing Reform 77-85 (2017).

    38 Am. Civ. Liberties Union, At America’s Expense: The Mass Incarceration of the Elderly ii (2012).