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Report Shows How Perverse Financial Incentives Drive Mass Incarceration and Inequity in Criminal Justice System

by Matt Clarke

A 72-page report by the Brennan Center for Justice published on July 6, 2022, shows how civil asset forfeiture, fines, fees and privatized community supervision shift the costs of the criminal justice system to the accused, removing financial disincentives for prosecutors to seek alternatives to incarceration. Simultaneously, state and federal contracting for detention bed space has created a speculative market that rewards construction of excessive prison and jail capacity. That capacity, once built, drives mass incarceration with contracts that collect for a certain number of beds regardless of whether they are needed. Moreover, when lockups lose contracts, they must seek to fill the empty beds to avoid financial losses.

The report also addresses how performance metrics for police and prosecutors drive mass incarceration. Prosecutor performance is generally measured by conviction rate and police performance by arrest rate. A failure to meet these required metrics can result in punishment in the form of worse job assignments, docked pay, loss of leave time or even termination. This means that prosecutors must seek convictions and police must make arrests even when justice might be better served by different outcomes. Inevitably, this results in more arrests, more prosecutions and more people in jails and prisons.

The report is extensively documented with 506 footnotes. It also contains specific suggestions for improvements, chiefly by reigning in excessive fees and fines on which criminal justice budgets depend, as well as civil asset forfeiture.

According to the report, the current use of fees to finance parts of the criminal justice system has caused an increase in costs for services such as DNA testing, forensic laboratory, drug testing, the local law library and victim services, even when those specific services are not relevant to a particular case.

Likewise, the use of fines might cause a charge to be upgraded to one carrying a greater fine or one that places use of the fine under local control. The idea of using either to finance the judiciary not only disproportionately effects the poor and racial minorities, it proved to be financial folly when the pandemic shutdown greatly diminished those revenue sources. This left, for instance, North Carolina – which uses fees to meet half of the state judiciary’s budget – and New Orleans – which finances 99% of its traffic court with fees – without an adequate source of revenue and scrambling to keep the doors open.

The report concludes that cash-strapped agencies and cities see potential windfalls from over-enforcement and over-incarceration, giving them “little incentive to divert people from arrest and prosecution or to strengthen alternative approaches to public safety” and thus further driving mass incarceration. See: Revenue Over Public Safety How Perverse Financial Incentives Warp the Criminal Justice System, Brennan Center for Justice (July 2022).

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