Cost-Benefit Analysis in Criminal Law

57 Pages Posted: 23 May 2003 Last revised: 26 Feb 2020

See all articles by Darryl K. Brown

Darryl K. Brown

University of Virginia School of Law

Date Written: May 1, 2004


This paper explores the prospects for integrating criminal law into the widespread trend elsewhere in the executive branch of using cost-benefit analysis to improve policymaking and enforcement practice. The paper describes the substantial array of unnoticed and under-valued costs created by the America's unique and fairly recent commitment to severe incarceration policies. It then maps the challenges for employing CBA in criminal enforcement practice. Those challenges include CBA's own methodological and conceptual limitations, public choice problems created by the populist structure of criminal justice administration, constraints on CBA in criminal justice in light theoretical commitments to retributivism, and practical limits employing such a policy in the executive branch when legislatures are unwilling to reduce statutory punishment mandates. Despite these obstacles, the paper concludes that a properly devised, CBA-based decision procedure - one that takes account of distributive concerns - is a promising avenue for rationalization and reform of state and federal criminal justice. (Comments especially welcome on this draft through fall of 2003, when the journal editing process begins. Send to

Keywords: criminal law, criminal procedure, cost-benefit analysis, prosecutorial discretion

JEL Classification: K14, D61, K23, K41, K42, D63

Suggested Citation

Brown, Darryl K., Cost-Benefit Analysis in Criminal Law (May 1, 2004). 92 California Law Review 323 (2004), Available at SSRN:

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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