There is plenty of conversation about how to reduce state prison populations, but what almost no one talks about is this: states are under no obligation to provide prisons, nor are they obliged to pay for the costs associated with prison sentences. Perhaps this silence comes from an assumption that state governments have always paid for prison, but, as this Article reveals, this conventional wisdom is wrong. In fact, states neither built prisons nor paid for incarceration until the middle of the 19th century. The decisions of local officials drive prison admissions—via arresting, charging, and sentencing—but given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable and are certainly not inevitable, it may be time for states to reconsider paying for prisons.
W. David Ball is Assistant Professor at Santa Clara School of Law.
