How to Stop Overzealous Prosecutors

Make them answer for the cost of incarceration.

Inmates sit in the county jail on July 26, 2013 in Williston, North Dakota.

Photo by Andrew Burton/Getty Images

When a local prosecutor sends a convicted felon to prison, the cost of keeping him locked up—an average of $31,286 per year—is paid for entirely by the state, not the county where the prosecutor holds office. The problem with this setup, some argue, is that prosecutors end up enjoying a “correctional free lunch,” meaning they can be extremely aggressive in their charging decisions without having to worry about how much it will cost the local taxpayers who elected them. If prosecutors were forced to take the cost of incarceration into account, the theory goes, there might not be 1.36 million people in America’s state prisons.

The “correctional free lunch” problem has been with us for decades; it was first named in a 1991 book called The Scale of Imprisonment by Frank Zimring and Gordon Hawkins. Now, a professor at Santa Clara University School of Law has come forward with a new idea for how to fix it.

W. David Ball’s proposal begins with defunding state prisons, and making the counties pay for every inmate they incarcerate. In a recent paper, Ball argues that states should take the money they’re currently spending on their prison systems, distribute it among counties based on their violent crime rate, and allow local decision-makers to spend it as they see fit. If county officials want to use the money to fund crime prevention programs, they can; if they want to use it to put lots of convicted felons in prison, they can do that too.

“The hope would be that they would start using prisons at the societally optimal level,” Ball told me. “They’d say, ‘Here’s $50,000 we can spend on sending someone to prison, but that’s $50,000 we’re not going to spend on other things, like the police budget or drug treatment programs.’ ”

Making those trade-offs transparent could potentially introduce political pressure on prosecutors that they currently don’t have to deal with, Ball said. “It would at least introduce some competing voices that would say, ‘There are other things we can spend law enforcement resources on.’ Because the problem right now is that there’s no one who is going to stand up during a DA’s election and say, ‘We shouldn’t prosecute criminals to the maximum extent possible because it’s really expensive.’ I can imagine that under my system, you would have people saying there are costs to this, and that [local efforts to drive down crime] are being deprived of resources by these prosecutorial decisions.”

Underlying this argument is the idea that prison is just one way to deal with crime—and it’s far from clear it’s the most effective one. “There’s lots of evidence that prison is a superexpensive and really ineffective way to treat people’s criminogenic risks and needs,” Ball said. “The state should not pay for prison unless prison is better, and prison isn’t better.”

Ball writes in his paper that, under the existing system, “counties that choose to use state prison to address crime are, in essence, subsidized by counties that choose local programs such as probation and treatment instead,” since the state typically pays for the former, while the county pays for the latter. This is not just theory: Ball analyzed the use of prisons by counties all over California and found wide variation, even among counties that had similar rates of violent crime. His findings are best illustrated by a comparison of Alameda and San Bernardino Counties over the 10-year period of 2000-2009, during which they had similarly sized populations and nearly identical overall crime rates. And yet, Ball found, “San Bernardino’s prison population was more than twice as high, on average, as Alameda’s, and it sent an average of more than three times as many ‘new felons’ to prison each year.”

The difference can’t be chalked up to prosecutorial zeal alone—there are surely other factors at play. As a spokesman for the San Bernardino DA’s office said in an email when asked about Ball’s numbers, “No conclusions can be drawn from the statistics other than for the time period studied there must have been more cases in San Bernardino County that met the statewide standards for a state prison sentence.” But this underplays the vast amount of discretion that a prosecutor has in deciding whom to charge and what to charge them with, and that discretion is unquestionably central in determining a county’s felony admission rate.

Putting a price tag on the disparity between a county that sends a lot of people to prison and a county that doesn’t underscores the point that the decisions of prosecutors should matter to taxpayers: On average, according to Ball’s analysis, San Bernardino’s prison population cost the state of California $236,761,677 more per year during the time period in question than Alameda’s did. But voters in those counties don’t necessarily recognize that the prosecutors they elect are partially responsible for that difference—and they have little reason to care, since the cost is borne by the state, not the county. This is one of many reasons why county prosecutor races tend to be extremely uncompetitive: According to one study, which looked at election results between 1996 and 2006 in 10 states, the success rate for an incumbent DA running for re-election was an incredible 95 percent.

If criminal justice spending was allocated locally, as Ball suggests, the impact of the decisions made by local prosecutors would be more obvious to voters, which could exert pressure on the way prosecutors operate. As Ball writes, “The average person could more easily spot the linkage between increasing numbers of local prison commitments and, say, a decrease in the frequency of road repairs or a shorter public school year, allowing political checks on criminal justice to operate more effectively.”

Ball is the first to admit his proposal is not likely to be enacted, and would involve a radical rethinking of criminal justice funding. And yet, “People have told me this idea is crazy, but my response to them is look around, have you noticed the system we have now? It’s the most dysfunctional system in the history of civilization.” Ball notes California is currently experimenting with a policy that can be seen as a small-scale version of his idea: In accordance with the state’s 2011 “realignment” law, designed to reduce the state’s prison population, convicted felons who are classified as “triple-nons”—meaning their crimes were “non-serious, non-sexual and non-violent”—must do their time in county jails, rather than state prisons. So far, there’s no evidence that this has had a significant impact on prosecutorial behavior. But according to Ball, officials in counties where jails are particularly overcrowded are starting to have conversations about resource constraints “that we would have never seen in the past.”

Ball’s proposal would make those conversations all the more urgent and intense, by giving local decision-makers money to spend on crime-fighting initiatives and forcing them to make choices about how to spend it. If local prosecutors didn’t feel any pressure to change their charging behavior under those circumstances, it’s hard to imagine a scenario in which they would.