Law in Contemporary Society

The Persistence of Prisons: An Exposition of Economic Foundations

-- By KeithEdelman - 19 Apr 2009


Our criminal justice system is failing to achieve its purported goals. Even more concerning is how our commitment to imprisonment flies in the face of the only proper purpose for the “correctional system”. In light of the small chance of immediate change, this paper examines a particularly relevant explanation for the persistence of prisons – adherence to free market ideology.

Brief Examination of Justifications for Imprisonment

Retribution theory, a common goal of punishment, assumes the “criminal” is indeed guilty of a crime. This, in turn, requires a reliable method of fact determination. Our fact-finding system, however, is far from the verifiable science that we envision. Even if retribution is assumed to be a proper goal, our current system does little to validate its assumptions.

Deterrence theory is similarly conditioned on questionable propositions. Human beings are rarely “rational-actors.” This simplification ignores the many dimensions of the human experience: adherence to seemingly foolish social scripts, the lack of free will within organizations, and the overall effects of minds on minds. After all, why would 63% of convicts freely get re-arrested?

Incapacitation, assuming individuals cannot change, seems proper. If an individual will only harm, incarceration seems justified on both moral and utilitarian grounds. But this is only appropriate for those who cannot be rehabilitated.

Most people, with proper support, can improve. The rehabilitative effect of our current prison system, however, is questionable at best. For instance, in 1997, only one in ten state inmates received drug treatment.

The Only True Goal

If deterrence is likely impossible, what role does prison serve? Caging humans is not likely to rehabilitate. Incapacitation only applies to the few incapable of positive change. The only human beings who “belong” in prison, therefore, are those who, even with full rehabilitative efforts, will only do harm.

Unfortunately, the medium-term likelihood of sensible reform is quite low for many reasons (e.g. the desire to control the poor. As such, we must investigate the foundations of society’s desire to imprison. Understanding why is the gateway to learning how to enact change.

How Did We Get Here?

One underpinning of our infatuation with incarceration is our adherence to free market ideology. This investigation is particularly relevant with our economic system on the verge of collapse.

Our Economic Theory's Social Stigmatization

Since 1980, the general economic philosophy of the United States has endorsed free markets with minimal government intervention. Simply put, nearly all regulation was believed to hurt the economy. If everyone works hard and in their own self-interest, the theory goes, then the markets will efficiently allocate resources.

This disapproval of governmental intervention stigmatizes those who receive government services. The relationship between the individual and the state is fundamentally altered. Americans who require assistance not only are “imperfect” themselves, but hurt the rest of society by requiring inefficient action. Criminals are such a class. Unlike the truly need who seem to elicit some sympathy, those who require government action due to “fault” of their own are often branded with disdain (see attached, p. 271).

Due to this characterization, facilitated by free market ideology, criminals are susceptible to mass incarceration for two reasons. First, incapacitating “criminals” can be justified on utilitarian grounds. Caging “bad” people is thought to rid society of crime. Second, their removal from society facilitates the repression of cognitive dissonance. Americans who profess freedom but insist on the deprivation of liberty for their fellow citizens need to extinguish this logical inconsistency. Keeping these individuals far from sight, for long periods of time, allows “true Americans” to live without much discomfort. This is demonstrated in the prevalence of the NIMBY syndrome with respect to prisons and the explosion of prison construction in rural areas.

Perceived Functional Benefits of Prisons

Mass incarceration seems to serve practical purposes in the free market paradigm of the United States. Many communities and their politicians claim that prisons foster economic growth. So long as the government acts as a rational, market actor, the theory predicts the formation of a new industry, creating jobs, tax-revenue, etc. Disregarding the obvious inattention to the inmates’ needs, many studies (e.g. here and here) have illustrated prisons' ineffectiveness. Nevertheless, mass incarceration is widely believed to foster economic growth in America. One thing prisons certainly do achieve is artificial inflation of crucial population statistics.

Prisons also have another practical function that fits snugly into the free market system: cheap labor. Requiring prisoners to work cuts costs (a “rational” act) and simultaneously provides inexpensive labor for outside corporations. For example, Virginia authorized joint ventures between prisons and private businesses, proclaiming that prisons are “Wide Open to Business,” and have “willing, experienced workers [with] no employee benefit packages to fund." Having a constant supply of free labor allows American businesses to fine-tune their labor costs with no risk of losing warm bodies. The incentive for mass incarceration is all too obvious.


While many might agree that rehabilitation should be the ultimate goal of our criminal justice system, the reality is that mass incarceration is unlikely to subside anytime soon. The first step in achieving such massive change is to understand why this phenomenon has developed. The recent devotion to free market ideology provides numerous answers. Stigmatized by the corollaries of this paradigm, inmates are incarcerated to provide mental and purported practical benefits for society. In light of the recent economic meltdown, this analysis will hopefully facilitate a reexamination of our criminal justice system and produce much needed social change.

  • I don't understand the analysis here. For some reason, anti-regulatory pro-business laissez-faire ideology is supposed to be connected in so direct a way to the American enthusiasm for incarceration, that it can be seriously proposed that a downturn in the economy will result in changes in the theory of criminal punishment, not because we can't afford to imprison as extensively as we do now, but for some less immediate cultural reason, which after two readings I'm not sure I can specify. (My puzzlement is made worse by the fact that free market ideology is used to explain both why people defend prisons as good for economic development and attack prisons on NIMBY grounds.)

  • It is true, of course, that recession is bringing about a crisis in prison funding, as can be seen most clearly at this stage in California. I do not see any sign, however, that the change is in attitudes about whether we should imprison large numbers of people, but only in our ability to fulfill our appetite for incarceration given the cost. If you had public opinion data, or indeed any species of evidence to present in support of your conclusions, it would have been welcome.

  • This draft is definitely an attempt to address the problems with the first draft, and it constitutes progress. What it needs next is some factual support, and some analytic clarification.


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Attachments Attachments

  Attachment Action Size Date Who Comment
pdf LCP63DWinterSpring2000P257.pdf props, move 309.9 K 19 Apr 2009 - 18:09 KeithEdelman Rethinking Welfare Rights, Journal of Law and Contemporary Problems, Duke University
r6 - 08 Jan 2010 - 22:10:22 - IanSullivan
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