Article   |   Volume 160, Issue 3

Prison Vouchers

Alexander Volokh

February 2012

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons—what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that the prisons will adopt policies prisoners value. Prisons would become more constitutionally flexible—faith-based prisons, now of dubious legality, would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, higher-quality health care, and better educational opportunities—features that prison reformers favor for their rehabilitative value.

The counterarguments are threefold. "Social meaning" and other philosophical arguments hold that choice in prison conditions is either impossible or morally undesirable. On the more economic plane, "market failure" arguments hold that because of informational or other problems prisoner choice would not succeed in improving overall prison quality. "Market success" arguments, on the other hand, hold that prison choice would improve prison quality too much, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force but do not foreclose the possibility that prison choice results in socially desirable improvements that could outweigh these disadvantages.

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