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May 23, 2018

"Capitalizing on Criminal Justice"

The title of this post is the title of this notable new article authored by Eisha Jain now available via SSRN. Here is its abstract:

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

May 23, 2018 at 10:54 AM | Permalink


The opposite of the rent is a profit. You pay for a haircut. You get a great result. Both parties are ahead. In the rent you get nothing of value after your taxes have been taken at the point of agun.

The implication of the abstract is of the rent, big government stakeholders blocking reform, to keep their jobs.

The scenario is of government. It is one of the most profitable aof all human enterprises. For $50000, you avoid 200 crimes a year. These crimes would have destroyed $2million in value. Where can you get guaranteed returns like that?

Posted by: David Behar | May 23, 2018 4:49:22 PM

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