Design Thinking and Mass Incarceration

Great design often seems like art: inspired and personal, with that ineffableje ne sais quoisto it.But commercial and industrial design does not happen by chance: it involves methods and principles that, themselves, have been designed in order to arrive at solutions to what might seem like insoluble problems.Rather than relying on an individual burst of inspiration, design itself has been, in some ways, formalized and captured into what is generally seen as a design method that can be learned and replicated.Design involves, among other things, interaction with the users of the product or process to figure out both the obvious and hidden problems, a clear definition of what the end result would look like (or feel like), and some sense of what the existing technical and budgetary limitations are.

Design thinking purports to apply these same principles of commercial and industrial design to problems and processes facing individuals and society.In the article from which this essay is adapted (Redesigning Sentencing), I explored how design thinking might shape our discussions about reducing prison populations, discussing at length some of the research that would be necessary to figure out what is broken in our current system of mass incarceration and to figure out what various constituencies (citizens, prosecutors, judges, corrections officials, legislators, and those caught up in the justice system) might need or want in order to make the system function more effectively and efficiently.

Part of the problem, however, is that each of these constituencies—and society in general—is not of one mind about the goals of criminal justice.We don’t have an end design in mind.At the same time, however, the costs of continuing along our historically unprecedented levels of incarceration remain obscure to all but the most determined news hounds.The primary step, then, has to be educating the public about the nature of our criminal justice system and its massive footprint, but in a way that speaks to people where they are, not where we wish them to be.How might the tools of design thinking help make the case that change is necessary?

In this essay, I will focus on the policy prescriptions from Redesigning Sentencing, prescriptions which are designed to lay bare the constraints and costs of the current system and, in so doing, help to build some momentum towards changing it.I organize my discussion along the lines suggested by Tim Brown in his book Change by Design.He suggests three main inquiries to aid in the design thinking process: what changes are technically feasible, what changes are economically viable, and what changes are desirable.

Changing what is technically feasible

Currently, there are no technical barriers to adding to penal codes.Legislatures can easily add years to existing penalties or penalize new conduct, all without much thought as to how many extra prison beds this might require or how much it will end up costing.Legislatures could make permanent changes harder to implement by attaching sunset provisions to all future crime-related bills, as has been suggested by others before me.Sunset provisions would mean that new criminal statutes would only be in effect for, say, ten years before being automatically repealed. Criminal statutes are easier to enact than repeal—the passage of a new bill usually follows a public outcry, but once the fever has passed, the laws remain.There is almost never a corresponding public outcry demanding a rollback of criminal penalties.Sunset provisions would ensure that current sentencing structures are based on current concerns.Sensible and popular policies would be unaffected—they would simply be re-enacted for another ten years. States would, however, no longer be saddled with effectively permanent changes to their penal codes based on a popular sentiment that has long since faded.

Legislatures could also change the feasibility of mass incarceration by leasing prison bed space for a period of years rather than building permanent state prisons.If there were no beds, then there would be hard limits to the expansion of the prison population.The problem with states building prisons is that once they are built, they—and their beds—cannot be easily repurposed.Nothing else looks like a prison from the inside or the outside (not even a depressing high school).Build a prison now and you have a prison for years.San Quentin, for example, was built shortly after California statehood and is still with us, despite calls to close it within the decade after it opened.Leases, on the other hand, are for a fixed term, and they only cost the state money as long as the lease lasts.Between leasing and building, the lower marginal costs of state-owned prisons encourage the state to fill all the beds in them.Marginal costs-per-prisoner actually decrease up to the capacity of a prison the state owns, but marginal costs-per-prisoner stay the same for a lease agreement.Of course, if states were to lease beds, they would need to ensure that there weren’t other distortions in their agreements, such as occupancy guarantees.They would also need to ensure that the costs of leased beds were competitive with public prison beds, and that these cost comparisons weren’t the result of private lessors simply taking inmates who were younger, healthier, and less mentally ill.

Changing what is economically viable

It is clear that our current practice of mass incarceration is financially ruinous.States report spending more on prisons than on higher education, and prisons have failed to deliver on the promises of rural economic development so often touted.Of course, most prison spending isn’t done proactively; it is done reactively, as the impacts of developments further upstream (say, legislative expansion or more aggressive arresting and charging) manifest in larger prison populations.Some of the changes might make no mark in the short term, but eventually the bill comes due.Two states, Kentucky and Virginia, have addressed this issue, requiring sponsors of any bill increasing prison usage to say how they are going to pay for via a fiscal impact study and appropriations. Statutes that affect prison usage are paid for when they are passed, not years later.A Kentucky statute requires that proposed legislation affecting the corrections population shall include a “corrections impact statement” with “the estimated costs, estimated savings, and necessary appropriations . . . .”(Ky. Rev. Stat. Ann. § 6.949(4)).Virginia requires a fiscal impact statement and necessary appropriations for proposed legislation affecting county jail or state prison populations.(Va. Code Ann. § 30-19.1:4).

In other states, it’s easy for legislators to appear tough on crime because they also don’t have to be tough on taxes or appropriations.But prison is expensive.Legislatures should be forced to raise taxes or cut programs at the same time they consider crime bills that would result in more prisoners.If these policies became more widespread, they would force Legislatures to account for the economic drain of increased prison populations, increasing the likelihood that potential increases were a wise—or at least justifiable—use of resources.

The problem with the above policies is that they would, at best, simply lock us into high rates of incarceration. Our prisons are too large.We need to do more than stop population increases, we need to decrease prison populations.Leaving the policies here would be like saying a childhood obesity program would be successful if children remained obese but simply didn’t get any fatter. The nation’s prisons are morbidly obese now. States need to slim them down. How can we generate the will to change?

Building the Desire for Change: The Prison Tax

This proposal is a means of generating popular awareness of the size and scope of the prison system and, with it, some impetus for reform. The proposal is simply to create one item on individual and business tax forms. After a taxpayer has calculated her total income tax and entered it on a line marked “final tax liability,” a separate add-on item—like a tip—would be added to the total. It would be labeled “Share of state prison expenses” and it would add the proportional amount the taxpayer was contributing to the expenses of a state’s prison system to the “final tax liability”.The reason for framing the expense this way comes from studies which show that people view losses differently than they do foregone gains.Imposing the prison tax on top of a supposedly “final” amount would, oddly enough, make a much greater mental impact (what behavioral economists call “salience.” See, generally, Thinking Fast and Slow by Daniel Kahneman.)In my hometown of Palo Alto, for example, cashiers at the grocery store give you your total before charging you for any paper bags you need, highlighting your loss.You are made more aware of paying “extra” for bags, rather than having it hidden inside a much larger total.This version of a prison tax would work the same way.

Once aware of their share of the prison system, taxpayers would be able to calculate whether the benefits of the prison system—such as their individual estimation of the value of deterrence (if any), their individual estimation of the value of the vindication of victims, or their estimation of the effects (or efficiency) of current policies on crime (if any)—were worth the “extra” cost of the prison tax. The prison tax proposal is not the end of the discussion, nor is it complete as an estimate of the cost. The prison system is not the only expense involved in criminal justice: this proposal excludes the costs of jails, police, DAs, and the judiciary. Even these additional costs do not include the losses—economic and hedonic—to victims, prisoners and their families, as well as more inchoate losses like faith in the system due to extreme racial differences, etc. The cost of prisons would be a good place to start, however, because, in most states, the costs of prisons are significant and come from general revenues. The prison tax could get us started talking about whether our current use of prison—which is, as a nation, unprecedented at any time in human history—is worth it.My guess is that most people would rather spend their money elsewhere, but, if not, we would at least be putting our money where our mouths are.

A prison tax alone would not be enough to roll back the huge increases in imprisonment since the 1970s, and the goal I have in mind is not simply to prevent our prison systems from getting bigger: it is to make them smaller. Thus, I propose that the prison tax be followed by an additional line on the tax form asking whether the taxpayer would like his or her prison tax to decrease, even if this means reducing current inmates’ sentences or releasing current prisoners. Taxpayers could choose a desired percentage decrease in their tax (say 25%).An aggregate of individual preferences, perhaps weighted by the amount of tax payment, could then provide a population reduction target for corrections officials to meet. They could choose how best to implement the mandate for, say, a 25% reduction in prison usage. They could pick the best people to release and also operate in the knowledge that they would need to do a better job from that point forward of identifying and preparing prisoners for release in order to meet popularly-mandated population cuts.

The political calculus may already be changing.In California, Prop 47, known as the “Safe Neighborhoods and Schools Act,” raised the dollar amounts necessary to charge certain property crimes as felonies and also made simple drug possession a misdemeanor. The proposition passed handily. The ballot argument in favor of it framed the conversation in financial terms, arguing that it would “focus[] law enforcement dollars on violent and serious crime while providing new funding for education and crime prevention programs” and would “save hundreds of millions of dollars” every year. Voters were faced with the choice of whether they wanted to spend money on imprisonment or on the (perceived) causes of crime such as substance abuse. More strikingly, Prop 47 applied retroactively and could affect thousands of prisoners, meaning that it wasn’t about arresting the rates of future growth but actually decreasing the existing population.

Criminal justice is a subject about which fresh thought is needed. Design thinking might help states begin to work their way out of their problems, but first they must acknowledge those problems. That will involve hard work—not quick and easy fixes.Having said that, there are suggestions for changing citizens’ perceptions and awareness of the problem. Our nation’s citizens currently are not honest with themselves about the system we have—costs and complexity are hidden, and prison is treated as an inexhaustible resource. By proposing a means to highlight just one aspect of these costs, I hope to engender further discussion and generate the impetus for change.