Why State Prisons?

47 Pages Posted: 27 Jun 2011 Last revised: 6 Jun 2015

W. David Ball

Santa Clara School of Law

Date Written: February 1, 2014

Abstract

There is plenty of conversation about how to reduce state prison populations, but what almost no one talks about is this: states are under no obligation to provide prisons, nor are they obliged to pay for the costs associated with prison sentences. Perhaps this silence comes from an assumption that state governments have always paid for prison, but, as this Article reveals, this conventional wisdom is wrong. In fact, states neither built prisons nor paid for incarceration until the middle of the 19th century. The decisions of local officials drive prison admissions — via arresting, charging, and sentencing — but given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable and are certainly not inevitable, it may be time for states to reconsider paying for prisons.

Keywords: prison, sentencing, corrections, federalism, local government, crime, criminal law

JEL Classification: H1, H2, H3, H4, H7

Suggested Citation

Ball, W. David, Why State Prisons? (February 1, 2014). 33 Yale Law & Policy Review 75 (2014). Available at SSRN: https://ssrn.com/abstract=1871274 or http://dx.doi.org/10.2139/ssrn.1871274

W. David Ball (Contact Author)

Santa Clara School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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