Legal Commentary

Tying the salaries of public officials to performance tends to be a policy touted by Republicans as a market-based solution to poor bureaucratic incentives. The most obvious example is merit pay for public school teachers, a prescription urged by Republicans but generally resisted by the National Education Association and the American Federation of Teachers, major constituencies of the Democratic Party. But I suggest a version of the reform that might be more palatable to the Left: Why not have merit pay for prison wardens and tie the bonuses to the employment and recidivism of prisoners following incarceration?

One of the perversities of incarceration is that prison officials have no political or financial incentive to care about what happens to prisoners after release. Few politicians, let alone voters, trace where ex-cons did their time. Whether or not a released prisoner avoids recidivism after release, the warden who supervised the felon gets neither praise nor blame. Small surprise, then, that wardens pay little attention to rehab. As an example, consider the Michigan Department of Corrections? sanctions for substance abuse, affirmed by the U.S. Supreme Court in Overton v Bazzetta, 539 U.S. 126 (2003). MDOC suspended prisoners? rights to non-contact visits for two years, as part of a get-tough-on-drugs-and-alcohol policy. Preventing prisoners from speaking to their spouses and children for two years insures that the prisoner will fall back on the only other ?family? available ? the prison gangs ? and, according to every expert who testified in the case, will almost certainly make prevent the re-integration of the prisoner back into any semblance of a normal family life. To avoid a trivial chance that visitors might somehow smuggle contraband past a plexiglass barrier, the MDOC risked imposing a huge costs on the rest of society.

Enter merit pay. The state already has data on ex-cons? post-incarceration behavior -- parole violations, employment rate, recidivism rate, etc. Why not tie wardens? compensation to reductions in post-incarceration anti-social behavior of the prisoners released from their prisons? Of course, one would have to control for the usual variables beyond the wardens? control ? SES and offense level of the prisoners, for instance. But these statistical challenges are no greater than those posed by merit pay for public school teachers. Indeed, unlike test scores as a measurement of education, the performance standards for ex-cons ? no recidivism, for instance -- is relatively uncontroversial.

So what do you think? Will merit pay for prison wardens become a plank in a new bi-partisan Obama or McCain policy platform? Or are prisons the one sort of Big Government that neither party wants to reinvent?