Criminal sanctions are a necessary and appropriate response to crime. But extremism, especially when coupled with a slavish and unthinking adherence to traditional practices, nearly always produces unfortunate consequences. Such is the case with the rapid growth in prison numbers in the United States over the past two decades. The prime purpose of imprisonment is to punish serious offenders and to prevent them from reoffending during the period of detention. The overuse of imprisonment has resulted in the violation of the most cardinal moral prohibition associated with imprisonment: punishing the innocent. The runaway cost of the prison budget has resulted in the community being needlessly punished to the tune of tens of billions of dollars annually. This is money that cannot be spent on profoundly important social services such as health and education. This Article offers a solution to this abhorrent public policy failing. We propose new forms of punishment that are more cost efficient than jail and that achieve all of the purported benefits of imprisonment: incapacitation and deterrence. The proposed sanctions are in two main forms. The first sanction is twenty-four-hour technological monitoring of every movement by an offender. The second sanction targets educational and employment pursuits of offenders in combination with disgorgement and clawback remedies. It is suggested that one or both of these sanctions can replace imprisonment as the sanction of choice for all current prisoners except serious sexual and violent offenders. This would result in an approximate halving of the number of offenders in United States prisons. If this solution is not effective and United States political sentencing realities compel the continuing addiction to imprisonment at the expense of all alternatives, there is still a better way forward. The United States should open up the housing of its prisoners to price based competition: states and emerging economies should be allowed to compete to provide prison accommodation in an efficient manner. We propose that this may be undertaken subject to binding and enforceable commitments made by these states to adhere to basic human rights standards and appropriate levels of accommodation and amenities.
Sandeep Gopalan and Mirko Bagaric, Progressive Alternatives to Imprisonment in an Increasingly Punitive (and Self-Defeating) Society, 40 SEATTLE U. L. REV. 57 (2016).