Perverse Incentives Created Our Terrible Criminal Justice System

The U.S. criminal justice system is worse than you think. Horrific incidents like the recent video of a Minneapolis police office kneeling on the neck of George Floyd happen more often than most people believe. Almost daily, we see police officers beating or shooting subdued citizens, judges or prosecutors imposing unreasonable punishments, or county sheriffs seizing cash and goods from people doing nothing more than driving on the interstate. You can watch cops play murderous games of Simon Says with civilians. Police are rarely punished for excessive force. Prisoners who serve their time return to society as second-class citizens who often cannot vote and have little hope of securing good long-term employment.

The so-called Land of the Free is the Land of the Imprisoned. In 2018, the U.S. imprisoned approximately 2.3 million people, about 1 in 100 adults. The United States has 5% of the world’s population but 25% of the world’s known prison population. 27% of all people incarcerated in the United States, including 60% of all females incarcerated, have not been convicted of a crime. An additional 4.6 million people—2% of the population—are under state control through probation or parole. Over 7 million people, or nearly 2.5% of the population of the United States, are under some form of “carceral supervision”—that is, incarcerated, on parole, or on probation.[1] Only 11 U.S. states incarcerate citizens at a lower rate than the Russian Federation.[2] 35 U.S. states, including overwhelmingly white states like Wyoming and Montana, put people in prison at a higher rate than repressive, authoritarian Cuba.[3]

It wasn’t always like this. As late as 1971, the U.S. incarceration rate was only about 150 per 100,000 people—higher than other OECD countries, but within the same cluster. Since then, it’s exploded to over 700 per 100,000. It’s hard to find reliable data on police violence over time, but what data we do have suggests they are far more violent than before. For instance, in 1981, for example, SWAT teams were deployed about 5,000 times across the United States, mostly to respond to violent crime. By 2015, no-knock SWAT teams were deployed about 100 times per day; 93% were for non-violent drug arrests and searches.[4]

How did we get here? What do we do about it?

Three Incomplete/Mistaken Theories

People of different background ideologies come ready to give the same answers they give everywhere else. Progressives want to blame racism and poverty. Conservatives want to blame family and social collapse and the (resulting?) crime. Libertarians want to blame government overreach, especially the drug war. They are each only partly right, and their stories don’t quite work.

Progressives are right that the U.S. criminal justice is systematically racist. Police officers act more violently toward blacks in ways that cannot be explained away by differences in crime rates. Black Americans are disproportionately and excessively fined by police,[5] are arrested at disproportionately higher rates for non-violent offenses like marijuana possession,[6] and black men receive longer sentences than white men for the same crimes.[7]

Nevertheless, the trends go the wrong way. Neither poverty nor racism have disappeared, of course, but they went on a strong downward trend while the criminal justice system’s degree of harshness and punitiveness went on a strong upward trend. Further, racism does not easily explain why the U.S. system became unusually punitive and harsh toward the white majority.

The conservative story faces similar problems. Conservatives are correct that violent criminals tend to come from one-parent households. The breakdown of families partly explains the rise in crime.[8] Yes, crime rose in the United States (for reasons no one quite knows), and so we might expect increased incarceration.

But the conservative story does not quite work either. Yes, crime rose, but then, starting around 1994, it fell. Yet the punitiveness of the system continued to rise steadily the entire time. Single-parent household rates have been generally stable since 1994, but the criminal justice system has become harsher. U.S. imprisonment rates are not proportional to our higher crimes, and the United States gives far longer sentences than other countries do for equivalent crimes. There is little evidence that adding extra length to sentences does much to deter criminals.[9] In fact, some empirical work finds that increased sentences promote recidivism; the longer a prisoner is in jail, the more he becomes institutionalized and the weaker his ties to his community become.[10]

Libertarians want to blame the War on Drugs, and they are partly right. But if jails released all the prisoners convicted or accused only of drug offenses, the United States would still have far more prisoners than any other country, would still incarcerate at a higher rate than almost any other country, and would still impose longer sentences and harsher punishments.[11] Only about 1 in 5 U.S. prisoners are there only for drug crimes.[12] Some of crimes result from conditions created by the Drug War—just as alcohol prohibition lead to increased gang violence in the 1920s—but eliminating the Drug War wouldn’t solve the problem on its own. There are too many other crimes not connected, even indirectly, to conditions created by the Drug War.

Perverse Incentives: Follow the Money

In Injustice for All, we argue that the United States is unusually dysfunctional because the key players in the system—from voters to politicians, town aldermen to state legislatures, local police to prison guards, prosecutors to district attorneys to public defenders—face unusually dysfunctional incentives.

Cash-strapped municipalities can make money by demanding fines for every small infraction—and by expanding what counts as infractions. Local jurisdictions can save money by hiring fewer police and sending more people to state prisons.

Electing prosecutors, DAs, and judges is largely unique to the United States. Thanks to the problem of rational ignorance, voters are systematically misinformed about crime statistics (they persistently believed crime has been increasing though it actually has been falling) and have no incentive to research more effective criminal justice methods. Prosecutors, district attorneys, and politicians win elections by showing they are “tough on crime” and on criminals, not by defending more humane—or more effective—approaches to criminal justice. They are in an arms race to push for more convictions and ever longer sentences.

State legislators have every incentive to keep jails and prisons open in their home districts. Prisons systems have become a workfare and fiscal stimulus program for impoverished rural areas. Prison guard unions, prison supplies, and poor towns lobby for more prisons.

The U.S. Census counts incarcerated persons as residents of town where they are imprisoned, not the town they lived in before incarceration. In Connecticut, this is responsible for creating nine (majority white) state representative districts that would not meet minimum population requirements but for their prison populations.

In 1981, the Military Cooperation with Law Enforcement Act authorized the military to cooperate with domestic law enforcement agencies. The military began training police in military tactics—the kinds of home invasion techniques SWAT teams use come from the army’s playbook. The 1990 National Defense Authorization Act authorized the military to donate “excess” military equipment to local law enforcement.[13] As of 2005, 80% of towns with populations between 25,000 and 50,000 people had a SWAT team.[14] Thanks to this and other measures, the federal government has inadvertently—or perhaps on purpose—incentivized and subsidized training local U.S. police to deploy military-style suppression tactics during routine calls—except that police face fewer restrictions on violent force than U.S. soldiers.

Public defender offices are poorly funded, while prosecutors work hand-in-hand with police. Prosecutors threaten to throw dozens of charges at suspects for one crime, and then scare suspects into accepting plea bargains. Pre-trial incarceration is common: Citizens who cannot afford cash bail rot in jail while awaiting their trail, and thus lose their jobs, their homes, and often their families.

These and dozens of other unusual perverse incentives explain why the U.S. system is an outlier. It’s true that external shocks made a difference. Rising crime in the 1970s and the moral panic of the Drug War led to an overreaction (to put it charitably), but the overreaction has continued even as crime dropped away.

The key players have a monetary and power-based stake in keeping things going as is. The benefits of bad behaviors are concentrated among the few while the costs are diffused among the many.

Fixing the Incentives

If we want to fix the problems, we need to fix the incentives.

In some cases, that means admitting we can’t really fix the incentives, and so we should instead strip government of some of its power. In general, something should be a crime only if it causes a wrongful harm to a victim, only if criminalization works (by reducing rather than increasing overall crime), only if there are no superior alternatives to criminalization for reducing the problem, only if enforcement passes cost-benefit analysis, and only if government agencies show they are competent to handle the problem.

The drug war fails each part of this test. The U.S. government has proven itself incompetent and highly corrupt in how it fights the drug war. It blights our cities by incentivizing cartels to run violent black markets. The drug war has become a cash cow for both governments and cartel. Reform is unlikely. We should end the war on drugs.

Similar remarks apply to SWAT teams. They are rarely used for their proper purpose. We should at least eliminate them in any town smaller than 100,000 people.

Further, rather than merely asking how to reform prisons, we should look for alternatives to imprisonment. We tend to assume incarceration is the normal, natural way to punish criminals. But historically speaking, it’s unusual and recent. Prison should generally be reserved for convicted violent offenders who represent a continuing safety threat to others, and only if there is no better way to contain them.

We could instead require the guilty to pay restitution to their victims—perhaps with exemplary damages in some cases. We could expand house arrest. We could even substitute caning/public flogging for imprisonment. While we do not endorse this as the best punishment, in the book, we argue that caning is both more effective and more humane than imprisonment. Even our own criminal code agrees: If we beat you with a cane, we might receive a 3-month jail sentence, but if we kidnapped you and forced you to live in horrible, prison-like conditions for 3 months, we’d receive a far longer sentence.

Beyond that, here are other reforms, some we should clearly implement, and others more speculative:

  1. Towns may no longer keep monetary fines. Police may not keep confiscated goods or cash. All fines collected go to restitution funds to make victims of crime whole.
  2. End career prosecutors. Instead, government lawyers will alternate between serving as public defenders and prosecutors, and they will be judged by factors other than their win rates.
  3. End the election of judges and district attorneys. Have them appointed, as in most of Europe. Voters have proven themselves incompetent to judge this matter.
  4. Remove laws immunizing police and others from bad behavior. Make it easier to sue them. Have damages paid not from general taxes, but from salary pools, merit raise pools, and even from retirement funds. Incentivize the police to police each other rather than to look the other way.
  5. Eliminate cash bail. There’s almost no evidence showing that assigning cash bail makes it more likely for defendants to appear for their court dates. New Jersey passed sweeping bail reform measures in 2014,[15] implementing them in 2017. Since these measures were implemented violent crime is down by more than 30%,[16] pretrial detention is down by 44% or about 6,000 people at any given time,[17] and there was a statistically insignificant percentage change in the number of defendants who failed to appear for their court dates.[18]
  6. Eliminate plea bargaining. In practice, prosecutors threaten suspects with multiple charges to incentivize them to plead guilty, even when they are innocent.
  7. Bring back mens rea and test for fair notice. Require prosecutors to prove to grand juries that a person could reasonably have known something was a crime before they committed it. Before even hearing the case, jurors are given the law, and then given a wide range of behaviors, including not only the behaviors attorneys are thinking of prosecuting as crimes, but a range of other related behaviors. Unless a supermajority of the jurors agrees the behavior in question is clearly a violation of that law and that a reasonable citizen would know this ahead of time, then the charges are automatically dropped.
  8. Change who pays for prison: Make cities pay the full cost of any prisoners they send to state or county prisons.
  9. Adopt the ancient Athenian model for punishments: After a conviction, both the prosecution and the defense propose a punishment. If the jury does not unanimously accept the prosecutor’s punishment by private vote, the suspect receives the defense’s proposed punishment instead

The system is broken from top to bottom. There is no singular law or policy responsible for its problems, and so there is no one law or policy that can fix everything. But proposals like these should be taken seriously.


[1] Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2019.”

[2] BBC, “World Prison Populations,” 2019; Prison Policy Initiative, “Following the Money of Mass Incarceration,” 2017.

[3] Ibid.

[4] Jonsson, P. “After Atlanta Raid Tragedy, New Scrutiny of Police Tactics,” The Christian Science Monitor; Hohmann, L, “No-Knock Police Raid Ends in Blazing Tragedy.”

[5] Sances, M. and H. You, (2017) “Who Pays for Government? Representation and Exploitative Revenue Sources,” The Journal of Politics 79(3): 1090-1094.

[6] Drug Policy Alliance, “From Prohibition to Progress: A Status Report on Marijuana Legalization.”

[7] United States Sentencing Commission, “Demographic Differences in Sentencing: An Update to the 2012 Booker Report.”

[8] Harper, C. C., and S. S. MacLanahan, (2004) “Father Absence and Youth Incarceration,” Journal of Research on Adolescence 14:369-397.

[9] Nagin, D. S. (2013), “Deterrence in the Twenty-First Century,” in Crime and Justice: A Review of Research, vol 42: Crime and Justice in America, 1975-2025, ed. M. Tonry. Chicago: University of Chicago Press, pp. 199-263; Levitt, S. D. (2004), “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not,” Journal of Economic Perspectives 18:163-190; Doob, A. and C. Webster. (2003), “Sentence Severity and Crime: Accepting the Null Hypotheses,” Crime and Justice 30(2003):143-195; Levitt, S. D. (1998), “Why Do Increased Arrest Rates Appear to Reduce Crime: Deterrence, Incapacitation, or Measurement Error?” Economic Inquiry 36:353-372; Gendreau, P., T. Little, and C. Goggin (1996), “A Meta-Analysis of Adult Offender Recidivism: What Works!” Criminology 34:575-607; Farrington, D. P., P. A. Langan, and P. O. Wikström (1994), “Changes in Crime and Punishment in America, England, and Sweden between the 1980s and 1990s,” Studies on Crime and Crime Prevention 3 (1994): 103-131.

[10] Gendreau, P., T. Little, and C. Goggin (1996).

[11] Pfaff, J. (2017), Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books.

[12] Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2019.”

[13] Andrzejewski, A. (2016), “War Weapons for America’s Police Departments: New Data Shows Feds Transfer $2.2B in Military Gear,” Forbes, May 10, 2016.

[14] Fund, J. (2014), “The United States of SWAT?National Review.

[15] State of New Jersey 216th Legislature (2014), “An Act Concerning Court Administration, Supplementing Titles 2A and 2B of the New Jersey Statutes, and amending P.L. 1995, c. 325.”

[16] Ibarra, R. (2018), “Crime Rates Plunge in New Jersey, and Bail Reform Advocates Are Gloating,” WNYC.

[17] Parmley, S. (2019), “Two Years Into Bail Reform, Pretrial Detention Much Lower, AOC Report Says,” New Jersey Law Journal.

[18] New Jersey Judiciary 2018.

Also from this issue

Lead Essay

  • Chris W. Surprenant and Jason Brennan argue that the U.S. criminal justice system grew to the size that it is owing to the incentives faced by prosecutors, judges, police, and federal, state, and local legislators. Each had a solid but narrow reason to act the role that they did in recent decades, yet taken together, their actions produced a system that locks up more people than any other nominally free country. As incentives created the problem, Surprenant and Brennan recommend a set of policies that will align incentives toward de-incarceration.

Response Essays

  • John Malcolm notes that police misconduct is relatively rare and far from standard operating procedure. While the United States imprisons many more than do other free, developed nations, this has been at least partly the result of a pronounced crime wave that only began to abate in the mid-90s; it is at least arguable that other nations didn’t do enough to imprison the guilty, while we did. Disdain for the American justice system is likewise misplaced: Few would trade a trial in the U.S. system for a trial in Cuba or Russia, for example, their lower incarceration rates notwithstanding.

  • Clark Neily focuses on two factors behind the U.S. mass incarceration phenomenon, overcriminalization and plea bargaining. Overcriminalization, he writes, has come to make criminals of everyone, meaning that prosecutorial discretion reigns supreme. And plea bargaining brings defendants to surrender their constitutional rights under duress, as many fear the much longer sentences that prosecutors threaten to seek at trial.