Freedom in the 50 States

The most heavily weighted category in the personal freedom dimension is the law enforcement statistics category, which consists of data on (a) incarceration rates adjusted for violent and property crime rates,¹ (b) nondrug victimless crime arrests, (c) the drug enforcement rate, (d) driver’s license suspensions for drug offenses, (e) prison collect phone call rates, and a variable new to the seventh edition, (f) state qualified immunity reforms. This category is worth approximately one-fifth of the personal freedom index. Given that the United States is frequently lambasted for having more prisoners per capita than almost every other country, and that the incarceration rate varies widely across states, it is perhaps no surprise that this category should be so important. The personal freedom dimension also includes laws that create or reduce victimless crimes in other categories, such as marijuana, gun, and prostitution laws. Our philosophy for assigning weights to these categories is to consider the forgone consumer and producer surplus due to prohibitions, whereas we consider the costs of arrest and prison time within the law enforcement statistics category. Given our earlier discussion of virtue libertarianism, it is important to remember that consumer and producer surplus are economic concepts rather than moral judgments that would assign any approbation to the activities themselves.

A one-standard-deviation nationwide reduction in incarceration rates adjusted for crime rates would yield about $17 billion in new value for prisoners in 2015 dollars. This figure excludes the fiscal benefits of incarcerating fewer people.

A similar reduction in drug arrests per reported drug user would benefit arrestees by $8.7 billion. Other victimless crime arrests are calculated in two different ways, since there is no direct, state-by-state measure of the number of people who engage in these activities as there is for drug arrests. Instead, the index takes the arrests of people over age 18 for weapons, prostitution, gambling, loitering, and liquor law violations as a percentage of the population and as a percentage of total arrests. The former figure is an imperfect measure of the risk of a citizen’s being arrested for one of these offenses (though states may differ in the percentage of citizens who engage in these activities), whereas the latter is more of a measure of police priorities. Both variables are equally weighted and together amount to $5.8 billion of benefit to potential arrestees.

The cost to drug offenders of a nationwide policy of driver’s license suspensions, which typically last six months or more, would be about $350 million. A standard-deviation change in the 15-minute collect phone call rate, $1.65, would roughly extract $51 million from prisoners’ families if implemented nationwide.

Abolishing qualified immunity had a smaller effect than we expected. The available data show that qualified immunity is invoked either at trial or at hearings on motions to dismiss nationwide only a few dozen times a year on average and that in only a fraction of those cases does the result hinge on qualified immunity.² Even if we assume that each dismissal or adverse judgment on qualified immunity grounds is a $1 million loss to the defendant, we estimate that means only about $25 million in averted losses to defendants from unjust rulings a year, nationwide, if qualified immunity were abolished. The policy does get the full constitutional weighting bonus, but it is still worth less than 0.1 percent of the index.

Five of the six New England states dominate the top slots on this subindex, while the remaining New England state—New Hampshire—comes eighth. The bottom three in the subindex are Southern states. Most states have positive scores in the subindex, a reflection of the fact that states have generally improved on freedom from incarceration and arrests for victimless crimes since the start of our data set in 2000. The criminal justice reform movement made clear headway even in places like Georgia, Louisiana, Oklahoma, and Texas that were long known for lengthy sentences for nonviolent infractions. Georgia’s improvement began in 2012, Louisiana’s began in 2012, Oklahoma’s in 2017, and Texas’s in 2017.