This material, printed under the subheading PRISONS was taken from:
“Thinking Practically About Crime,” by James Q. Wilson, contained in the preface of Assessing the Criminal: Restitution, Retribution and the Legal Process, edited by: Randy E. Barnett and John Hagel III.

PRISONS
A major constraint on any sentencing practice is the real or perceived shortage of adequate space in a correctional program. After a decade or more during which the prison population declined despite the increase in crime, the prison population is now rising rapidly, and in the opinion of all concerned, exceeds any reasonable definition of capacity in most states. (Even so, the proportion of the population in prison is still lower today than it was in 1955, when the crime rate was less than half of what it is now.)13 We allowed, during the 1960s, our prison population and perhaps even our prison capacity to lag far behind the increase in crime, and now we are paying the price of deferred construction and deferred sentences. William Schaffer has shown that, at least for Massachuesetts, the shortagae of prison capacity is the major constraint on the criminal justics system and contributes more than police or judicial conduct to the system’s inability to increase the deterrent or incapacitative effect of the criminal sanction.14 The governor and others have begun to act, with predictable results: every community proposed as the location for a new correctional facility is vociferous in its opposition. Everyone, it seems, wants more criminals put in prison, but not in prisons near him.
One could go on at length, but by now the point should be evident: though most persons managing the criminal justice system no doubt want to produce lower crime rates and see that justice is done, the componenet parts of that system do not act as if crime reduction were the objective. Each part-victim, witness, police officer, prosecutor, judge, prison warden, probation officer-behaves, in the aggregate, as if each sought chiefly to minimize its costs. Victims and witnesses wish to maximize the burdens of identifying, of testifying, and sometimes even of reporting. Police officers welcome the chance to make a good arrest but not the arduous efforts that might increase the probability of an arrest. Prosecutors must manage a heavy workload and want a high conviction rate, but achieving these goals is not always the same as taking the most dengerous offender off the street as promptly as possible. Judges seek to move a caseload along to minimize the chances of appellate reversal or collegial criticism. Prison wardens might wish to think about rehabilitation or other objectives, but the realities of their situation require them to worry chiefly about maintaining order under difficult conditions of population pressure and external criticism. Communitites want more criminals imprisoned, but not in their neighborhoods.
The renewed interest in swift and certain penalties, for reasons of deterrence or retribution, has affected the participants in this system, but the effect has primarily been, I suspect, on the attitudes of persons working in the system. Theses attitudes have always been favorably disposed toward reducing crime and doing justice, and if deterrence or retribution are more defensible theories than rehabilitation, they will be given widespread verbal support. And in some places, new laws will be enacted based on these newer views, such as the Maine determinate sentencing statute or the California presumptive statutes that give them practical expression. But I am keenly aware that, by themselves, neither these theories nor these laws will in themselves make much difference in how much crime is committed or even, perhaps, in how evenly justice is administered.
What is required is to increase the incentives of persons managing the criminal justice system to act as if crime control or just deserts or (ideally) both were the goals. I suspect that inducing them to act justly is easier than inducing them to act so as to minimize crime, for a sense of justice animates all of us in varying degrees, and in the case of victims, police officers, or judges it probably operates with some intensity. Indeed, were it not for a sense of justice, or at least a sense of duty that derives in part from shared standards of right conduct, far fewer arrests would be made, and far lighter and more capricious penalties would be imposed.
There is no single grand strategy that will induce the participants in the criminal justice process to act in ways more consistent with the goal of crime reduction. If by the “bureaucracy problem” we mean the difficulty in getting large organizations to serve public puposes at reasonable cost, then that problem exists in an especially acute form in criminal justice. Let me suggest, briefly and inadequatly, some of the changes that could be adopted-that in fact are being adopted in certain jurisdictions-which might provide greater incentives for system participants to act as we (and for that matter, as they themselves) wish…
We face, and will continue to face for some time even under the most optimistic assumptions, a severe shortage of correctional facilities, especially of the small, medium security variety. One can predict-and with a determinate sentencing law, one can predict with even greater accuracy-the sizeof the future prison population. If the growing population cannot be housed in decent, safe, and small facilities, then several things will happen: judges, offended by what they take to be undesirable prison conditions, will refuse to send prisoners to them and will discover ways of closing the facilities down; and wardens, faced with large and overcrowded facilities, will find it impossible to maintain order and to avoid riots and prison breaks. The response to these events will include demands for the enlargement of “prisoners rights” and a decrease in the number and security of prisons, thus leading to more crime and more prison disorders.
I remarked at the outset that the outcome of the debate over the proper philosophical basis for punishment was not likely to influence significantly the working of the criminal justice system. Let me now qualify that position a bit. to the extent that judges come to accept deterrence or retribution over rehabilitation, their behavior will probably change to some degree. It is possible-we have no data-that we are even now witnessing the effects on our prison population of a new, “get tough” attitude among judges and a diminished confidence in the rehabilitative idea. The significance of this change, if in fact it has occured, may not be great, however, unless other parts of the system function more effectively to identify and convict offenders.
It is also possible that the change in inducements that I have suggested will lead to a greater emphasis on the crime control rather than the justice-administering fucntions of the system. A career criminal program in a prosecutor’s office, for example, may lead to selective prosecution such that a person’s prior record will make a substantial difference in his chances for conviction, for a speedy hearing, and for receiving a sentence, even though he has committed an act identical in all respects to that of a person with a different prior record and, in consequence, with a different set of probable outcomes. These are not trivial issues. At the margin, equality of treatment and reduction in crime may be imcompatible and thus trade-offs will have to be made. This should be unsettling only to those, if any, who suppose that human values are not always in conflict and thus that single principles shoudl govern and simple choices are possible.
13. Statistical Abstract of the United States (1975), p. 168.
14. William Andrew Shaffer, “Court Management and the Massachusetts Criminal Justice System” (Ph.D. dissertation, Sloan School of Management, Massachusetts Institute of Technology, 1976).