If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation

This article examines the consequences of prison overcrowding litigation for U.S. prisons. We use insights derived from the endogeneity of law perspective to develop expectations about the likely impact of overcrowding litigation on five outcomes: prison admissions, prison releases, spending on prison capacity, prison crowding, and incarceration rates. Using newly available data on prison overcrowding litigation cases joined with panel data on U.S. states from 1971 to 1996, we offer a novel and comprehensive analysis of the impact that overcrowding litigation has had on U.S. prisons. We find that it had no impact on admissions or release rates and did not lead to any reduction in prison crowding. Litigation did, however, lead to an increase in spending on prison capacity and incarceration rates. We discuss the implications of these results for endogeneity of law theory, attempts to achieve reform through litigation, and the politics of prison construction.