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Q: Why Do Normal People Ignore Legal Academia?

A:  Because it comes up with stuff like this, which, to give you the spoiler, recommends that the prison population be reduced, not by 25% or 50% or 75%, but by 100%.  Yes, we should abolish prison, and come up with......uh, something.

This "analysis" stems from  --  have you heard this before?  --  a "data driven" approach, specifically that taken by the law and economics side of the house, much in vogue at the University of Chicago.  Law and economics is insightful in many ways, and I teach components of it in my course at Georgetown Law.  At some point, however, a sense of modesty must be allowed to intrude.

One of the author's concluding paragraphs leads off with this sentence:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.

Just so.  The usual name for these "alternative nonmonetary sanctions" is "jail."


The First Congress, second session, enacted a criminal code on April 30, 1790. See 1 Stat. 112. The punishment for theft in places of exclusive federal jurisdiction or of U.S. government military supplies (ยง 16) was:

"... shall, on conviction, be fined not exceeding the fourfold value of the property so stolen, embezzled or purloined ... and be publicly whipped, not exceeding thirty-nine stripes."

Somehow I think that wouldn't go over well today.

"The gains of that employment could be transferred to victims and governments,..."

This will be the goal right up to the very moment such "reform" is passed and then it will be called "slavery" by the very same people.

Amazing how academics never fail to serve up a big portion of "pie in the sky". Restitution has been frequently used for the last 40 years and has failed to make the victim whole.

Most probationers are unable/unwilling to find gainful employment. If found, they may work a few days or a few weeks before their employer finds them unsuitable.The 10% of their income that is usually ordered often amounts to mere pennies on the dollar.
Most liberal courts then close the case after reassuring all that a "good faith effort was made."

In the middle ages, execution was the punishment for most crimes. See, there was no need for prisons and it was very efficient!

Had the same reaction as MJS.

So, your big idea is to employ them? If they were willing to work they probably wouldn't be criminals. And there is a wide berth between someone going through the motions on their "job" -- think of forced community service work crews -- and doing productive work that could generate restitution. In order to force people to actually work you would probably need to house them all together in one place, not let them leave, and keep them constantly supervised...

Law and Economics is occasionally interesting, but I find it's often completely inapplicable to the real world of flesh and blood human beings -- human beings who are often lazy or irrational.

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