Scholarship@WashULaw

Document Type

Article

Publication Date

2023

Publication Title

California Law Review

Abstract

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation. Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses. But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state. These social costs of punishment start by impacting the offender, but inevitably ripple out into the community. While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment. This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities. The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community. Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions. This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

Keywords

Punishment Theory, Externalities, Federalism, Localism

Publication Citation

Sheldon Evans, Punishment Externalities and the Prison Tax, 111 Cal. L. Rev. 683 (2023)

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