Alabama’s prisons currently house 24,000 inmates, but were designed to hold 13,000.  The legislature’s 2015 sentencing reforms should reduce this overcrowding some, but a Federal takeover of our prisons remains possible.  Chronic overcrowding plagues both state and Federal prisons.  The problem results from how our political process makes laws and prosecutes offenders.

Overcrowding puts both prisoners and corrections officers at risk.  Prisoners should serve their sentences, but do not deserve to be terrorized and brutalized by other inmates, which overcrowding makes more likely.  Overcrowding has been judged to constitute cruel and unusual punishment, violating inmates’ 8th Amendment rights.

Under a Federal “takeover,” a Federal judge makes decisions about a state’s prisons.  Consequences could include prisoner releases and the construction of prisons at state expense.  I do not like to prognosticate, so I will not speculate whether last year’s reforms have vanquished this threat.

Overcrowding is not a consequence of America failing to build new prisons.  Quite the opposite: between 1984 and 2005, the number of state prisons increased by 70%.  Yet the new prisons offered only temporary respite.

National attitudes toward incarcerating drug users significantly affect the prison population.  Half of all Federal prisoners are serving time for drug offenses, while two thirds of Alabama’s prisoners were convicted of either drug or property offenses.  Deescalation of the War on Drugs, the wisdom of which is a topic for another day, would significantly reduce our prison population.

Chronic prison overcrowding emerges from how we make political decisions about incarceration.  Florida State economist Bruce Benson has convincingly argued that our system treats prisons as a common pool resource.  Common pool resources can be used by many people without paying.  Consequently too many people use the resource, and no one has an incentive to invest in conservation.  Other common pool resources include fisheries (including whales), aquifers, and highways.  Garrett Hardin coined the term “The Tragedy of the Commons” to describe the too frequent overuse of these resources: plummeting catches in the world’s international fisheries, rapidly falling water levels in major aquifers, and rush hour traffic jams.  Overuse occurs because many people can use the resource without paying.

Lawmakers, prosecutors and judges all “use” our prisons without paying.  Yes, lawmakers must fund the Department of Corrections to operate and build prisons.  But lawmakers, prosecutors and judges separately make decisions boosting the prison population.  The Tragedy of the Commons ensures constantly overcrowded prisons.

Let’s consider this in more detail, starting with lawmakers.  Every year the news media reports on new, dire threats to our health and happiness, like the current heroin epidemic in the Northeast.  Human trafficking is another current scourge.  Past threats included crack cocaine, methamphetamine, and electronic cigarettes.

Our elected officials compete to protect us from these threats, or at least appear to do so, because this wins elections.  State legislators though do not walk a beat, investigate crimes, or prosecute the accused.  So they do what they do: pass laws – laws criminalizing actions associated with the harms, or laws increasing penalties.  When passing these laws, lawmakers do not have to pay for the extra prison space needed for the new prisoners and longer sentences.  They can assume that the extra inmates will be housed somewhere.

Prosecutors and judges (generally) must run for office, and seek to protect us from these same threats.  Prosecutors and judges aggressively charge the accused and hand down lengthy sentences for the guilty to show how tough they are on (fill in the blank).  If they don’t, a challenger in the next election will accuse them of neglecting this ill.  Prosecutors or judges do not have to provide or pay for extra space when they hand out longer sentences.

The common pool problem underlying prison overcrowding does not admit easy solutions.  It emerges from how we structure decisions in the public sector.  But correctly identifying a problem’s cause is usually a necessary precondition for devising a genuine solution.

Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University and host of Econversations on TrojanVision.  Respond to him at dsutter@troy.edu and like the Johnson Center on Facebook.