Abstract
This paper examines ethical considerations relating to the current role of financial incentives in policing and punishment in the USA, focusing on the two methods of punishment most popular in the USA: (1) fines and forfeitures and (2) incarceration. It examines how financial incentives motivate much of our penal system, including how and when laws are enforced; discusses relevant ethical considerations and concerns connected with our current practices; proposes a theoretical solution for addressing these problems that involves realigning existing incentives to better serve the interests of justice; and considers how that theoretical solution can be applied in practice. While there are no easy solutions to resolving many of the current ethical problems related to policing and punishment, this paper will argue that some of our current practices, practices that many people believe are morally problematic (e.g., our current approach to prison labor), not only are not problematic, but also can point us toward more effective and efficient policy solutions in other areas.
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Notes
This number includes $100 + billion in yearly expenditures nationwide on police (Justice Policy Institute 2012) and the $182 + billion in direct costs of the criminal justice system (Wagner and Rabuy 2017a). It does not include the $136 + billion in fine and forfeiture revenue reported by the states some of this money goes back into supporting the criminal justice system. To put this number in context, it is about half of what the USA spends on primary and secondary education nationwide, and about four and a half times what the USA spends on the Supplemental Nutrition Assistance Program (food stamps) (USDA 2017).
Two of the more interesting documents I found when putting together this discussion were the 2015 and 2016 General Fund Budgets for the City of Waldo (City of Waldo, Florida 2015, 2016). For 2015, the city projected police revenue to be $434,000. This number was then revised down to $98,153.30 after the investigation and vote to disband the department. The 2016 budget indicated that Waldo actually generated $177,216.24 in “police revenue” in 2015. After the disbanding of the department, Waldo projected that they would generate only $5000 in “police revenue” in 2016.
American Traffic Solutions (ATSs), and a handful of similar companies in the USA, have contracts with municipalities to install traffic cameras and process violations. While the specifics of each contract vary depending on the municipality, generally ATS will pay to install the equipment, send video of each violation to local law enforcement for review, and then take on some of the payment processing (mailing the violation notice, collecting the fine, etc.). For their work, ATS receives a percentage of fine revenue collected, often with certain guaranteed minimums. Given that many municipalities are trying increase revenue at no cost and without taking steps that are seen by the public generally as tax increases, it is not surprising that they have turned to these arrangements with companies such as ATS.
Not all cities rely so heavily on revenue from fines and forfeitures. Mobile, Detroit, and Houston, for example, project that they will collect $3M, $24.8M, and $40M from fines and forfeitures, which comes to 1.2% (City of Mobile, Alabama 2017), 1.3% (City of Detroit, Michigan 2016), and 0.9% (City of Houston, Texas 2016) of their total projected revenue. The pattern connecting cities that rely disproportionately on revenue from fines and forfeitures is not what might be expected. One might expect that these cities would have features such as having a contract with companies like American Traffic Solutions to handle traffic enforcement or having many non-residents passing through or visiting for one reason or another. But neither of these features predict higher than average reliance on revenue from fines and forfeitures. What does predict it, according to recent work from Sances and You (2017), is the racial composition of the city and its elected leaders. Sances and You found that the higher the black population, the more likely the municipality will rely on fines to generate needed revenue. They also found that cities with at least one black member of the city council reduced the connection between race and fines by about half.
While the use of forfeiture has risen dramatically over the last 20 years, it has always been on the books in the USA as a possible punishment for participating in criminal activity. The first mention of asset forfeiture in US law is in the Act of July 31, 1789, which allowed the equivalent of customs officers to seize and retain goods unloaded from merchant ships if the merchant had not paid the appropriate taxes to receive the required permits. Its use expanded significantly after 1978, when Congress authorized its use to allow for the seizure of money connected to the buying, selling, and trafficking of illegal drugs, and then again in 1984 when Congress revised the statue to allow for the seizure of property connected to those activities. Since then, the amount of assets seized by the federal government has increased constantly and consistently.
In addition to criminal and civil forfeiture, the Federal Bureau of Investigation (FBI) also identifies a third type of forfeiture: administrative forfeiture. According to the FBI, “Administrative forfeiture occurs when a property is seized but no one files a claim to contest the seizure. Property that can be administratively forfeited includes merchandise prohibited from importation; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value. Houses and other real property may not be forfeited administratively. Federal law imposes strict deadlines and notification requirements in the administrative forfeiture process. If the seizure is contested, then the U.S. government is required to use either criminal or civil judicial forfeiture proceedings to gain title to the property” (FBI 2017). Since administrative forfeiture occurs under guidelines for criminal or civil forfeiture, but it occurs when the property seized under those guidelines is not contested, there’s no need to focus on it at length here.
That justification via benefits is contained within one paragraph, which reads: “As a result [of asset forfeiture], criminals are deprived of their working capital and their profits, thereby preventing them from operating. A secondary benefit of forfeiture laws is that forfeited property, or the proceeds of its sale, has been turned over to law enforcement and is used to fight against crime. While the purpose of forfeiture and the evaluation of a forfeiture law or program should never be based solely on the generation of revenue, it is only fitting that forfeited property be used to combat those who seek to profit from crime.” The entire discussion can be found on the Attorney General’s website, http://ag.hawaii.gov/cjd/asset-forfeiture-unit/history-of-asset-forfeiture/.
This complaint is still pending with the FEC as of September 2017.
Corizon has actively lobbied officials in Alabama (Toner 2014), California (Swan 2016), Florida (Bottari and Persson 2014), Washington DC (Hauslohner 2015), and so forth. Find a state where Corizon has government contracts, and you’ll find that they have lobbied significantly to get those contracts. But Corizon is not unique and operates like any other company dependent on government contracts. As Ice-T says, “Don’t hate the player, hate the game.”
“UNICOR is a voluntary industrial work program that provides offenders job skills training in a real world environment” (4). And “Those who volunteer to work in UNICOR learn and practice the most valuable skill of all: How to work” (UNICOR 2016b, 17).
The US Department of Labor has set requirements outlining the conditions under which unpaid internships are legal or illegal. They include: “(1) The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) The internship experience is for the benefit of the intern; (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship” (US Department of Labor 2010). The easiest way to get around these requirements is to hire interns who are receiving academic credit from a college or university. So not only are these students not being paid by the company to work, they are paying the university for the opportunity to work for the company for free.
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Surprenant, C.W. Policing and Punishment for Profit. J Bus Ethics 159, 119–131 (2019). https://doi.org/10.1007/s10551-017-3744-7
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DOI: https://doi.org/10.1007/s10551-017-3744-7