The Political Market for Criminal Justice

Authors

Rachel E. Barkow, New York University School of LawFollow

Abstract

In 2004, the number of individuals incarcerated in the United States exceeded the two million mark. The current incarceration rate in the United States is 726 per 100,000 residents, the highest incarceration rate in the Western world and a dramatic increase from just three decades ago. Not only are more people serving time, but sentences have markedly lengthened. What should we make of these trends? The answer has been easy for most legal scholars: to them, the incarceration rate in the United States is too high, and reforms are necessary to lower sentences. But many political leaders and voters reach the opposite conclusion: current sentencing levels are just right or, in some cases, not tough enough. One way to assess these competing claims would be to agree on the purpose criminal punishment is supposed to serve and then to conduct an empirical evaluation of how well current incarceration policies achieve that purpose. The difficulty with this approach is readily apparent. To begin, the purpose of punishment is highly contested. The purpose could be deterrence, incapacitation, retribution, rehabilitation, or some combination thereof, and neither voters nor scholars agree on the proper metric. If that alone were not a sufficient hurdle, there is also the thorny question of measuring effectiveness. Given the complexity of human behavior and social dynamics, it is not easy to assess whether a particular sentence will deter or rehabilitate offenders or whether it will cause a reduction in crime rates. An alternative method for evaluating sentencing and incarceration policies is to analyze the institutional dynamics that produce them. If the political economy that produces sentencing laws suffers from an imbalance or defect of some kind, that could provide a reason for questioning the sentencing policy itself. The political-economy approach is the one that Doran Teichman takes in his recent article The Market for Criminal Justice, and his piece shows the promise of this method in assessing questions of criminal justice policy. As Teichman points out, looking at criminal justice policy from this institutional perspective might reveal counterintuitive conclusions and shed new light on important questions in criminal law, such as how to divide authority among local, state, and federal jurisdictions and how to assess substantive laws and sentences. This methodology is a welcome addition to the scholarship on the federalization of crime, and it will undoubtedly produce many valuable insights. Teichman's inquiry is a prime example, for it demonstrates that there is, theoretically at least, a category of crimes for which state competition might produce a race toward more severe sentences than would be produced by a single central authority.

Recommended Citation

Rachel E. Barkow, The Political Market for Criminal Justice, 104 Mich. L. Rev. 1713 (2006).
Available at: https://repository.law.umich.edu/mlr/vol104/iss7/3