Document Type

Article

Publication Title

Minnesota Law Review

Publication Date

2020

Keywords

mass incarceration, prison reform

Abstract

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that the most effective way to end mass incarceration is to target the policy failures that drive it. He focuses in particular on the “prosecutorial free lunch”: prosecutors are county-funded officials who can send as many people as they like to state-funded prisons, which is a classic moral hazard problem. While Zimring is correct to focus on how relatively technocratic issues have posed outsized and underappreciated problems, his analysis suffers from some important shortcomings. In particular, he gives too little attention to the politics that have allowed this policy failure to persist. He thus overstates the ease with which reforms could be passed and understates how quickly they may be subverted. And, flipping the free lunch issue around, he also understates how effective local political change can be in the presence of entrenched state resistance to reform. He thus highlights an important problem but emphasizes fixes that will likely falter while dismissing those with a greater chance of success.

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