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By John Hagan, Kim Lane Scheppele, Tom R. Tyler eds.

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In an influential argument, Erving Goffman related criminal punishment to the social structures of the insane asylum (Goffman 1970). And today some reformers, such as Human Rights Watch, observe that a stunning proportion of incarcerated persons in the United States is mentally ill (Human Rights Watch 2003). This suggests that American prisons are becoming the institution of last resort, or in many localities the only available institution, for the confinement of the mentally ill. Again, one fears that we are experiencing a dire and depressing return to the world of early modern Europe.

It is particularly well suited to explaining the harshness of countries with histories of racial exclusion and discrimination, of which the three paradigmatic examples are the United States, Nazi Germany, and South Africa. Punitive criminal punishment in all three countries has of course been particularly visited on historically disfavored racial minorities. Elsewhere, too, racial minorities are typically the targets of particularly harsh treatment. But of course racial heterogeneity need not be the only form of heterogeneity that matters.

Therefore, we can think of D’s problem as making an ˜ and by all those types with lesser damages offer (that is accepted by some type d, ˜ so that expected costs are minimal. This is formalized as the following than d) optimization problem: dH ˜ p d˜ − t P ). ( px + t D ) f (x) d x + F(d)( min d˜ 1. d˜ The first term is the expected cost to D of going to trial, because all types above d˜ will reject the offer s = pd˜ − tP (they can do better at trial). In the integral, D’s cost at trial for any such type is weighted by the likelihood that D is of that type.

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