The Free Market 24, no. 10 (October 2004)
Last year, the governor of Alabama proposed and then overwhelmingly lost a bitter referendum to increase taxes and boost revenue. Voters rightly saw the campaign as a slick attempt to expand the public sector’s power, prestige, and wealth transfers by increasing the degree of legal plunder in Alabama’s tax system.
It spoke highly of the voters in the Heart of Dixie that they resisted the scare tactics of desperate public officials who threatened dire circumstances if voters didn’t fall into line behind the state’s newly-elected governor, a big-government Republican.
One threat in particular stood out. The state prison system had become so crowded that the officials were exporting prisoners to private prisons in nearby Mississippi and Louisiana. The governor and his cronies often warned that failure to pass his tax increase would lead to the early release of many criminals. Voters were told that a cost of rejection would be a crime wave of unprecedented proportions. It was a threat worthy of The Godfather.
But the voters nixed the tax increases, like voters everywhere almost always do when given the chance. And the prison system did give early parole to many of its convicts. But that often mentioned crime wave never happened. The Birmingham News recently reported that the number of parolees released in Jefferson County last year more than doubled from 261 parolees in 2002.
Officials marvel at their good fortune, and much credit must be given to the network of private shelters that assist ex-convicts’ transition to life outside the bars. But they would be wrong to ignore the economic explanation for that good fortune. Many of those ex-cons never posed a threat to society in the first place, because they were trapped in the prison system by the judicial commons.
Commons problems describe a type of resource allocation problem that applies to goods in the public sector, and judicial commons is a subset of these problems that apply to the use of the public-sector legal system. In the commons, there are some (nonexcludable) resources to which many have access. When individuals stand to benefit from accessing these goods, each one has a perverse incentive to overconsume them. Any effort to conserve these goods for time period t+1 simply results in more of the good available for others to consume in time period t.
American biologist (and socialist) Garrett Hardin, who is generally credited with identifying the commons problem in 1968, discussed this phenomenon in terms of commonly-owned grazing land. Hardin argued that herdsmen allowing their cattle to graze on such land have an incentive to do so as long as grazing land remains available. Many herdsmen, acting independently of each other, can end up overgrazing such common pool resources and ruin them. That is the way it goes when property rights, which include the right to exclude so as to maximize resources’ social value, are poorly defined.
Florida State University economist Bruce Benson has written extensively on the application of this theory to the judicial system. He argues that access to the legal system for lawyers, judges, district attorneys offices, and others, can result in overconsumption in the same way that cattle can overgraze grazing land when many herdsmen have access to it. After all, such individuals are not maximizing potential revenue when prisons and court dockets are not full.
The judicial commons increases the prison population by multiplying the laws, making them easy to break. The result is that the United States, with 5 percent of the world’s population, has 25 percent of the world’s prisoners. These numbers are maintained by adding victimless crimes to the legal codes (such as is the case for many drug-related offenses) as well as crimes involving voluntary consent (which include many of the voluntary exchanges that occur in the vast underground economy).
No one is safer as a result of removing the men and women who commit such crimes from society, although their incarceration allows politicians to claim tough-on-crime credentials, and the overconsumption of the judicial commons is allowed to continue for another season.
But once the system is exposed for the fraud that it is, the grazing stops. This is what happened in Alabama when voters saw through crass threats of a crime wave and rejected the governor’s tax proposal. That the promised crime wave turned out to be illusory underscores the fact that many who were incarcerated posed little danger to society in the first place. They served as useful foils for those who stand to profit from the expansion of the judicial commons.
Christopher Westley teaches economics at Jacksonville State University (cawestley @mail.msn.com).
