The Price of Criminal Law

Abstract

Should tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance. Nonetheless, because the criminal legal system diffuses power and hides and offloads costs, officials and voters do not have to honestly consider that question. These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for. That is a problem. Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color. Suburban voters who do not live in or look like residents of overpoliced communities have no incentive to account for others’ suffering. But if their tax dollars had to pay for the entire criminal law apparatus in their community, their financial stake might urge restraint. 

Accountability poses a central challenge in criminal law. Because power and funding are diffuse no one knows who to blame. This Article argues that budget constraints provide an important accountability measure for criminal law and that counties should be empowered to make—and be burdened with making—the hard choices. It then articulates the goals to which a democratically accountable budget in criminal law should strive. Such a budget would require government officials to be transparent in setting priorities and respect basic rights such as the right to counsel, the right against being caged in dangerous conditions, and the right to a speedy trial. To protect these rights and respect budgetary balance, budget allocations for indigent defense, carceral facilities, and courts should limit the number of cases prosecutors can bring. Ultimately, this Article aims toward a system in which criminal law is used only to the extent that a local community views its benefits as greater than the suffering it inflicts. It is animated by the instinct that some communities would spend differently if they saw the full financial costs of criminal law.

Keywords: criminal law, accountability, budgeting, mass incarceration