The Economics of Incarceration: Overcrowded Prisons and Overcharged Prisoners

Last month, Huffington Post reporter Matt Ferner published an article proclaiming that "Americans are sick of the 'tough on crime' era." However, the economic prospect of prisoners has been a part of the American justice system for decades, and it is still alive and well.

Ferner cites a poll indicating more than half (61 percent) of survey respondents think drug offenders make up too large a percentage of the nation's inmate population. Nearly 80 percent believe that judges should have more discretion in sentencing based on the details of the case instead of being constricted by mandatory minimum sentences.

As a practicing criminal defense attorney, I'll vouch for that. These beliefs are not surprising, and our federal government seems to be taking steps to ease a "tough on crime" approach that incarcerates far too many people for far too long.

But these reforms are taking place on a federal level. States, including Oklahoma, have been slow to catch up. The United States has a higher prison population--more than 2.2 million inmates--than any other country in the world. Oklahoma consistently ranks as one of the top three states in the U.S. in regards to incarceration rates.

Consequently, Oklahoma's jails and prisons are overcrowded; however, that has always been good for business. The more inmates we have, the more money the counties make for themselves.

Oklahoma is representative of what goes wrong when "justice" is unnecessarily punitive and focused on economics rather than rehabilitation. If Oklahoma serves as an example of what is going on in states across the nation, the Oklahoma County Jail serves as a microcosm for the problems beleaguering Oklahoma's "correctional" system.

The Oklahoma County Jail was built in 1991 to accommodate 1,200 inmates. Today, it houses 2,500.

The federal Justice Department began investigating the jail, revealing at least 60 civil rights violations. The Justice Department gave the county until 2015 to rectify the violations and fix the issues... or else.

As the deadline loomed, Oklahoma County Sheriff John Whetsel said most issues had been resolved, but others could only be fixed with extensive remodeling or a new jail, and he approached community leaders with a proposal.

Thankfully, business leaders scoffed at the idea of fixing the problem by catering to it. Certainly, the jail was over capacity. But would it be better to build a bigger facility or reduce the jail population?

The majority of inmates are pre-trial inmates, meaning they have not been convicted of any crime. Rather, many are too poor to post bond, or they suffer from mental health issues and lack the support network to get them out of jail. Former Oklahoma Speaker of the House Kris Steele said that the jail has become a "debtor's prison," which he calls "immoral and unconstitutional."

Even if a person with low income would be able to post bond, he or she would not be eligible for a public defender under existing policies and procedures. Often, inmates are forced to decide between posting bond and hiring private counsel.

The Greater Oklahoma City Chamber of Commerce created a task force to explore options for true reform, noting that if Oklahoma City builds a bigger jail, we will just fill it. The real solution is to stop the overflow of inmates into the jail. The group is working with the Vera Institute of Justice for reform measures that could significantly impact the way Oklahoma County, and the state as a whole, handles corrections.

In the midst of this search for reform comes a startling discovery about the actual "costs" of incarceration.

Inmates at the Oklahoma County Jail, if ultimately convicted, are expected to pay the costs of staying at the jail. The daily incarceration rate is determined by a formula presented yearly to a judge for approval. Upon release, inmates are sent a bill for the cost of their stay.

Even if you agree that inmates should be required to pay for their stay and ease the taxpayer burden, what an Oklahoma County Judge recently discovered about the proposed daily incarceration rate seems dramatically unjust. The jail is overcharging its inmates.

Oklahoma County is running on gas the inmates are putting in the tank. The more inmates we have, the fuller that tank gets.

The proposal presented by Sheriff John Whetsel to Oklahoma County District Judge Ray C. Elliot includes not only the direct jail costs, but also indirect costs, such as sentencing programs and the salaries of court clerk employees, juvenile justice workers, and even the Oklahoma County public defender's office.

Judge Elliot said he was "appalled" by the attempt to charge inmates for indirect costs, and asked, "How in the world can you justify that?"

Apparently the calculations for the daily incarceration rate were determined from a federal form created by the U.S. Marshall's Service that allows indirect costs to be factored into the rate of incarceration. This form has been used for 18 years. No one had complained before.

Judge Elliott admitted that he had approved these figures in the past, but only became aware of the issue as he took a closer look at the numbers as the state looks at justice reform in general, and particularly at the Oklahoma County Jail.

Oklahoma County Public Defender Bob Ravitz seemed equally outraged that a portion of his office's payroll was counted towards the jail's operating costs. Ravitz has called for an audit of the sheriff's revenues and expenses. We'll see if that actually happens.

So there you have it. Why are we so tough on crime? Why do we incarcerate twice as many prisoners as are facilities are designed to hold?

Money. Its all about the money.

If the daily incarceration rates were actually calculated from a federal form, then the overcharging may be an issue across the entire state (and possibly the entire nation). Groups like Oklahomans for Criminal Justice Reform are looking into statewide issues, while the Oklahoma Legislature approves new bills.

However, as long as putting folks in jail puts money in the coffer, the system is unlikely to change.

But if the jails aren't making as much money off the inmates, they can't afford to keep as many incarcerated; moreover, they won't have an economic incentive to keep them behind bars for as long. If incarceration rates continue to rise, and budget rates are held in check, the jails likely can't afford to keep as many inmates. The system will have to change to accommodate the lack of resources, or the system will fall down on itself.

Or, we could just keep raising the cost of incarceration to coincide with the rise in incarcerated individuals...or vice versa. Is it the chicken, or the egg?

Who says crime doesn't pay?