This week I’m headed out to the Law and Society meeting in New Orleans, where I will be participating in two panels and avidly attending many more. The title of this post refers to a draft of my most recent article, Pay for Performance in Prison: Using Healthcare Economics to Improve Criminal Justice. I’m presenting this paper as part of a roundtable discussion on Friday at 4:45, Rationing Criminal Justice (I’m also participating in a roundtable Thursday at 12:45 on Marijuana Federalism).

Here is the abstract of the paper, as well as some thoughts on the future of the project:

For much of the last seventy-plus years, healthcare providers in the United States have been paid under the fee-for-service system, where providers are reimbursed for procedures performed, not outcomes obtained. Providers, insurers, and consumers are motivated by different individual and organizational incentives; costs and burdens of patient care are shifted from one part of the system to another. The result has been a system that combines exploding costs without concomitant increases in quality. Healthcare economists and policymakers have reacted by proposing a number of policies designed to reign in costs without sacrificing quality. One approach is to focus on the ultimate goal—improving health outcomes—by measuring those outcomes and reconfiguring incentives and structures to deliver healthcare in ways that are both efficacious and efficient. Pay for performance remunerates providers on the basis of health improvements via whatever medically-appropriate method they choose. This means providers are no longer paid for simply doing a given “something” but, rather, are paid for doing “something effective.”

In this Article, I argue that the criminal justice system is similarly fragmented, expensive, and inefficient, marked by many of the same distorted individual and organizational incentives that have plagued health care. Most significantly, in all but a handful of jurisdictions, states wholly subsidize commitments to prison—the fee-for-service model of doing “something”—without tying any of these subsidies to outcomes obtained in prison. This means prison is paid for even if it is neither effective nor efficient. These similarities with the healthcare system suggest that an outcome-oriented, pay-for-performance framework borrowed from healthcare economics might, if applied to criminal justice, improve its efficacy and efficiency. I envision this Article as the first of several applying healthcare economics to criminal justice. It will focus on the similarities of the two systems, the ways in which an outcome orientation might provide a useful framework for controlling costs without making quality subservient, and the suggestion that we begin considering sentencing choices within that framework.

I should note that the medical/criminal analogy itself has a long lineage: in the 19^th century and the 1950’s, correctional professionals saw criminality as a disease to be cured. This analysis, however, looks at the recent policies in healthcare economics as a means of suggesting how the criminal justice system might be refocused on quality, not just quantity. I envision this paper as part of a larger series applying the medical model to criminal justice. The paper I plan to write next will some insights from healthcare economics to suggest how we might create incentives to invest in prevention, not just treatment. I welcome any and all feedback on the draft.