By Jessica M. Eaglin. Full text here.
Economic sanctions in the United States justice system have acquired newfound attention from the public and policymakers across the country in recent years. As states reconsider excessively severe sentences for low level offenders captured in the justice system, there is a renewed interest in using alternatives to incarceration—including economic sanctions—to further penal policy while avoiding the high costs of incarceration. This development lies in tension with the reality that more than eighty percent of offenders incarcerated in prison and jail today are poor, many of whom cannot afford even minimal economic sanctions. As a result, criminal justice debt creates a cycle of poverty, isolation and incarceration that can perpetuate mass incarceration. Policymakers are only just starting to engage with substantive solutions to this problem. The American Law Institute finds itself at the forefront in considering on these realities as it completely restructures the Model Penal Code on Sentencing’s approach to economic sanctions. This Article discusses the American Law Institute’s new approach in the context of the competing interests that make determining an appropriate economic sanctions policy perspective difficult. It highlights the ways that this policy reform strikes a balance between the competing goals before proposing practical measures to build upon this new approach. The Article also how broader trends in criminal justice policy could prevent the improvements envisioned by the Code’s revised approach. Ultimately this Article argues that using economic sanctions in a way that is productive and proportionate—like other punitive policies in the states—requires changing the way we punish for more than just cost-cutting reasons. The revised Model Penal Code makes great strides in this direction, but more can, and must, be done.