Prison Vouchers

Alexander Volokh, Emory Law School

Abstract

School vouchers have been proposed as a way of bypassing the political pathologies of school reform and making schools better by transforming students and their parents into consumers. What if we did the same for prisons—instituted a system under which convicted criminals could choose which prison to go to rather than being assigned by a Department of Corrections bureaucrat?

Voucherized prisons would continue to be “state actors” for pur-poses of the First, Fifth, and Eighth Amendments, so (unlike schools) a private voucherized prison wouldn’t automatically be exempt from these constitutional requirements. However, it would probably have the ability to “offer” at least some “constitutionally noncompliant packages” that would be attractive to inmates, to the extent this is allowed under the unconstitutional conditions doctrine. As for the Establishment Clause, religious prisons would probably be constitu-tional under Zelman v. Simmons-Harris, which offers a way forward for faith-based prisons. Under both doctrines, the government probably needs to offer a “constitutionally compliant” spot for any inmate who wants one, either by direct public provision or by contract with private prisons.

Would prison vouchers be a good idea? In the first place, one may ask whether prisoner choice would succeed in improving prisons from prisoners’ perspective. The argument that it would is similar to the ar-gument as to schools, though this the case is arguably stronger as to prisons because prisoners would probably have fewer informational problems, the agency costs present in schooling choice are nonexistent, and peer effects are probably less significant. In the second place, one may ask whether, assuming this happened, it would be a good thing, since prisoners may have antisocial preferences. Even if prisons would compete along certain antisocial dimensions in ways that cannot be controlled by direct regulation, prison vouchers may still be a good idea as long as the prosocial competitive pressure (chiefly as to physical security, medical care, and job training) outweighs the antisocial pressure.