The Failure of Government Justice

By T. Norman Van Cott, a professor of economics at Ball State University in Muncie, Indiana

It's often a heartbreaking story. It's also a repeating story. Details change, but the essentials remain the same. What is it? It's people on parole and probation committing yet more crimes. Thousands each year. Those foisting these parolees and probationers on us pollute our social environment just as owners of poison-spewing factories pollute our air and water. Criminal justice system employees get a pass on their pollution. Not so with factory owners. Curious.

My community, Muncie, Indiana, recently experienced this social pollution. According to newspaper reports, a Mr. Ronald Hatfield was sentenced to 28 years in prison for armed robbery in 1987. Notwithstanding 77 write-ups for conduct and disciplinary infractions while in prison, Hatfield was released on August 2, 2004. That's 11 years short of 28. On December 16, 2004 — 136 days after his release — Hatfield killed a convenience store clerk during, that's right, an armed robbery. For this crime, Hatfield received life in prison, without parole.

Hatfield is the tip of a criminal iceberg. US Department of Justice statistics indicate that parolee and probationer populations are "fluid." Of the approximately 750,000 parolees at the end of 2003, for example, 492,000 entered parolee status that year, while 470,000 exited. Eleven percent of exits returned to incarceration because of at least one new offense. Twenty-eight percent were reincarcerated due to parole rules violations. (Nine percent absconded!) Therefore, the rock-bottom, bare minimum estimate of parolee crimes in 2003 was about 51,700 (11% of 470,000). The corresponding figure for probationers was 109,000. Probationers' recidivism rate is lower, but probationer exits in 2003 were 4.6 times parolee exits.

Who is responsible for Hatfield's unserved 11 years? What about the unserved sentences that led to the 160,000 crimes in 2003? Parolees and probationers don't magically appear. To say the "system" controls early releases — that releases are mandated by rules, and hence beyond human discretion — is silly. That's the first defense of bureaucratic minions everywhere. Such rules are not unchangeable; they, and whatever discretion is built into them, are crafted by living and breathing people.

Who bears the costs of these early release crimes? In Hatfield's case, it's hard to see beyond the convenience store clerk and her family, isn't it? That burden is large and intense, no doubt like that experienced by thousands of other victims of parolee and probationer crime. At the risk of trivializing these costs, however, we can easily argue that all of us incur costs because pollutants like Hatfield make our social environments less attractive.

What about those living and breathing people who sign off on these early releases? Do they bear any personal liability? No. That's the problem. They are usually government employees. You know what that means: de facto job tenure, longevity-based promotions, and lock-step salary increases.

By way of contrast, imagine what would happen to owners of a factory that spewed pollution into a river. Indeed, suppose it's the White River that flows through Muncie. They would be financially liable for dead fish and other environmental damage. How do dead convenience store clerks measure up against dead fish?

Governments maintain records for parolees and probationers who return to prison, abscond, or successfully complete their parole and probation. This means that the ingredients already exist for incentivizing the production of early releases. Tie compensation of criminal justice system employees to successful early releases, while at the same time exacting financial penalties on employees who produce failed early releases. One could even introduce gradations into the penalties based on the reason for failure — new crimes, breaking rules of parole/probation, or absconding.

Better yet, why not privatize the parole and probation industry? You can bet a privatized process would have incentives akin to this. Centuries of experience teach us that personal liability makes people more attentive to the consequences of their actions. Application of this principle to the parole and probation process doesn't guarantee that Mr. Hatfield's victim or others like her would still be alive. But it does mean that heartbreaking events like it would be less likely to occur.

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