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In a previous article, I wrote about how the war on drugs and the government monopoly on the legal system has created the Tragedy of the Commons in our justice system. Because legislators and police officers have every incentive to appear “tough on crime” but the cost of the sending a criminal to a courtroom is socialized, the courts have become increasingly backlogged. What that article did not cover is the related “commons problem” in the prison system and the consequences that follow.

The Tragedy of the Commons in the Prison System

Where legislators and police officers have in-built incentives to send as many people through the courts as possible, a similar incentive is faced by judges and prosecutors to send defendants through the prison system. Because all judges and prosecutors share common access to prison space with no individual cost for doing so, there is zero incentive for the limitation on the sentence sought by the individual prosecutor or handed down by the individual judge.

There is, however, the incentive for these professions to win cases and appear “tough on crime,” respectively. “The effect,” as Bruce Benson and David Rasmussen tell us, “is that prosecutors and judges as a group crowd the common-access prisons much as cattle owners crowd common access grazing land.”

Legislators, again, also have an incentive to crowd the prison commons. To market themselves as “Drug Warriors,” they are incentivized to pass mandatory minimum sentencing laws, which are often even more severe at the state level than the federal. In this case, the prisons are crowded by a specific type of criminal: drug users. Because resources are scarce, mandatory minimums targeting drug crimes mean that drug users and dealers are increasingly competing for space with murders, rapists, and thieves — criminals for whom mandatory minimum sentences are not imposed.

Nearly 50 percent of all prison inmates are drug offenders, according to the Federal Bureau of Prison. According to a report by the Government Accountability Office, it is estimated that the American prison system will be above capacity by 45 percent by 2018, despite opening five new prisons in the past 10 years. Of course, even while recognizing that non-violent offenders are the reason for the overpopulation of the prisons, the go-to solution by these government officials is to keep building more prisons.

The Consequences of Overcrowded Prisons

Because of the mandatory minimum sentences for drug offenders, the solutions to the overcrowded prisons tend to favor violent criminals more than non-violent criminals. This comes first in the courtroom, where the judge is no longer able to use discretion in an individual case that may call for it — namely, a drug conviction. When a judge may see fit to offer the drug offender probation, rather than jail time, mandatory legal minimums compel him to give a prison sentence. But because prison space is still limited, the probation alternative to jail is simply passed to violent criminals.

The results are that the criminals who receive no prison time following a conviction — the probationers — have more prior felony convictions, higher rates of recidivism, are less likely to be employed at the time of arrest, and are more likely to have a history of violent crime than the criminals who are actually serving prison time. In other words, the war on drugs is actually pushing violent criminals back onto the streets in order to devote resources to the non-violent criminals who often held productive employment before being locked-up.

Probation is not the only way that prison overcrowding benefits violent criminals. “Gain time” is the process by which prisoners are released from prison early, and this benefits both violent and non-violent criminals. However, this has a double-dose of consequences.

For violent criminals, gain time is similar to probation, in that it pushes them back onto the streets more quickly. Although the average percentage of a sentence served is constantly fluctuating, it tends to hover around the 50 percent mark (though it has been on the rise recently, and solid recent data on this is difficult to find since it is not the type of information governments want to advertise).

Remember Brock Turner? In one of the rare rape cases to actually have multiple eye-witnesses testifying against him, he was offered a pitiful six-month sentence, of which he only served three. We were told that he was benefiting from “white privilege.” Whether or not the courts show racial favoritism, a more evident explanation is that he was simply benefiting from having been convicted as a violent rapist rather than a non-violent marijuana user in an overcrowded prison system that brazenly favors the former. Taking the reverse approach from drug laws, the government has imposed maximum sentences for rapists.

The drug offenders also benefit from gain time. For libertarians, non-violent offenders spending less time in jail is generally seen as a good thing. However, it is worth adopting the Misesian-utilitarian approach to analyze how this affects the actual goal of the drug war. The idea behind targeting drug dealers is that if there are heavier consequences on dealing drugs, then there will be fewer people willing to supply them, thus raising prices and de-incentivizing potential drug users. But when drug dealers go to jail knowing that they will likely only serve 50 percent or less of their sentence because of prison overpopulation, then the cost factor (the risk of serving any given amount of time in jail) is lowered. Because overcrowded prisons lower the risk-premium on drug dealing, the tragedy of the prison-commons actually undermines the goal of waging a drug war even from the statist perspective.

The issue of overcrowded courts and prisons are growing increasingly apparent. With the problem identified, solutions should be easier to establish. One potential solution is to build more prisons and open more courthouses. Particularly in the case of the prisons, this has actually been the preferred government option since the days of alcohol prohibition. But this means exponentially higher taxes for the purpose of diverting resources from the productive sector of the economy to produce more judges and prison guards — and this is ignoring the obviously libertarian virtues of liberty and personal autonomy that views the practice of jailing non-violent offenders as unjust in its own right.

The other option — and the only one that actually stands as a pragmatic solution to the problems outlined in this article — is to end the war on drugs and to release all non-violent prisoners. Even with more prison, more police, and more courts, non-violent criminals will continue to crowd out the violent criminals, benefiting the violent at the expense of the non-violent. Even from the perspective of the most slap-happy drug warrior, there is no case to be made in favor of continuing the war on drugs.