Fiscally Restraining Criminal Lawmaking
From 2015 to 2018, carceral legislation passed resoundingly across the country – 1,781 new punitive state criminal laws were added in that time period. When it comes to legislation adding criminal codes or changing sentencing schemes, lawmakers diffuse or offload the cost onto local governments or individuals through the assessment of fines and fees. In this law review article, the authors argue that this current approach gets lawmakers “more punishment than they’d be willing to pay for.” Few states require themselves to budget five years in advance for the increased prison costs carceral legislation will likely produce and, for the states that do, they typically exempt the cost of building new prisons or maintaining existing ones from their fiscal analysis.
Given the vast costs that the criminal legal system poses to both governments and communities, the authors argue that lawmakers should employ a more deliberate approach to lawmaking and implement a set of procedural tools that legislatures already use in other policy areas: total spending caps, budgetary offset requirements, fiscal notes, sunset provisions, and prohibitions on unfunded mandates.
The authors are candid that requiring the legislature to pay for proposed legislation can work only as well as the quality of the information about the bill’s anticipated costs. They note that sentencing commissions and independent fiscal analysts are crucial to ensuring accurate estimates.
You can read the full article here.
Recommendations
- Total spending caps can encourage legislators to consider the tradeoffs of passing criminal law. TELs (total expenditure limits) work best when measuring the actual balance at the end of the year, and not solely the projection.
- Budgetary offsets, unlike total spending caps, afford the legislatures the opportunity to raise taxes to offset new spending on criminal lawmaking.
- Fiscal notes, especially those that rely on robust data and are written by third-party fiscal analysts, can be a starting point for legislators to understand the full fiscal impact of carceral legislation.