Russell M. Gold

The Price of Criminal Law

56 Arizona State Law Journal (forthcoming 2024).

Governments should and do face tradeoffs about how to spend their money. Because the criminal legal system diffuses power and hides and offloads costs, officials and voters do not have to honestly consider its tradeoffs. These structural features give counties more criminal enforcement than they pay for. 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 overpoliced communities have no incentive to account for others’ suffering. But if their tax dollars had to pay for their community’s entire criminal law apparatus that financial stake might urge restraint.

This Article argues that budget constraints provide an important accountability measure for criminal law and that counties should be empowered to make and burdened with making the hard tradeoffs. It then articulates the goals to which a democratically accountable budget in criminal law should strive. Such a budget would require government officials to set transparent priorities. It would also eliminate prosecution on the cheap by affording respect for basic rights such as the right to counsel, the right against being caged in dangerous conditions, and the right to a speedy trial. To preserve the budgeting tradeoffs, budgets for indigent defense, carceral facilities, and courts should all 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.