If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation

Abstract

This article examines the consequences of prison overcrowding litigation for U.S. prisons. We use insights derived from the endogeneity of law perspective to develop expectations about the likely impact of overcrowding litigation on five outcomes: prison admissions, prison releases, spending on prison capacity, prison crowding, and incarceration rates. Using newly available data on prison overcrowding litigation cases joined with panel data on U.S. states from 1971 to 1996, we offer a novel and comprehensive analysis of the impact that overcrowding litigation has had on U.S. prisons. We find that it had no impact on admissions or release rates and did not lead to any reduction in prison crowding. Litigation did, however, lead to an increase in spending on prison capacity and incarceration rates. We discuss the implications of these results for endogeneity of law theory, attempts to achieve reform through litigation, and the politics of prison construction.The unprecedented and unparalleled size of the U.S. prison population has received an enormous amount of scholarly attention. Incarceration has become so common and widespread, especially among African Americans, that it has left significant marks on racial inequality in labor markets, wages and health, and has reshaped citizenship and race relations in contemporary America (Alexander

A Research Agenda on Reform

“…First, the federal courts have renewed their interest in claims of overcrowding and unconstitutional provision of health care in confinement. Past research demonstrates that the federal courts have acted as both an impetus and a constraint on reform (Guetzkow and Schoon 2015). Given the political climate in the 1980s, many states complied with court orders by building more prisons (Lynch 2010; Schoenfeld 2010; Perkinson 2010).…”

The Politics, Promise, and Peril of Criminal Justice Reform in the Context of Mass Incarceration

“…14 Third, studies suggest that prison overcrowding litigation does not reduce prison overcrowding but does increase corrections spending and incarceration rates, presumably by serving as a catalyst for prison (or jail) construction (Guetzkow & Schoon 2015;see also Schoenfeld 2010). Nor have the courts served as an effective vehicle for improving prison conditions in recent decades, consistently ruling, for example, that the widespread use of solitary confinement does not violate the Eighth Amendment's prohibition of cruel and unusual punishment (Reiter 2015).…”

The Law-Before: Legacies and Gaps in Penal Reform

“…Even more remarkable is the state of California's response. While states have often sought to comply with population cap orders by expanding prison capacity (e.g., Feeley and Rubin ; Guetzkow and Schoon ; Schoenfeld ), California enacted legislation known as “Public Safety Realignment,” or Assembly Bill 109 (AB 109 2011), which localized the onus of compliance to individual counties (Schlanger ). AB 109 devolves the supervision of most nonviolent offenders to the county level and, notably, delegates unprecedented discretion to local practitioners to either incarcerate those previously sent to state prison in local jails or to use alternative, community‐based sanctions that do not entail incarceration (Pen.…”