Chris Calton writes for the Mises Institute on how the American Penal System illustrates the problem of the tragedy of the commons.
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.
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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.2
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.3
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.4
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.