The Prisoner Trade

69 Pages Posted: 8 May 2020

See all articles by Emma Kaufman

Emma Kaufman

New York University School of Law

Date Written: April 14, 2020

Abstract

It is tempting to assume that the United States has fifty distinct state prison systems. For a time, that assumption was correct. In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors. Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines.

Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform. Yet apart from prisoners and their families, few people know that prisoners can be shipped between states. Because information on prisoners is so hard to obtain, scholars, lawyers, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held.

Drawing on a wide range of primary sources, including data uncovered through open records requests to all fifty states, this Article offers the first comprehensive account of the prisoner trade. It demonstrates that states have far more authority than one might expect to share and sell prisoners. It reveals that certain states rely on transfers to offset the actual and political costs of their prosecution policies. And it critiques the pathologies of interstate punishment, arguing that courts should require consent before a prisoner can be sent outside the polity whose laws he has transgressed.

Keywords: Prisons, Constitutional Law, Privatization, Bureaucracy

JEL Classification: Z18

Suggested Citation

Kaufman, Emma, The Prisoner Trade (April 14, 2020). Harvard Law Review, Vol. 133, No. 6, p. 1815, 2020. Available at SSRN: https://ssrn.com/abstract=3576088

Emma Kaufman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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