In their paper Fiscally Restraining Criminal Lawmaking, Russell Gold and Leah Nelson describe how lawmakers may pass punitive criminal laws which are not subject to the same fiscal scrutiny as other laws. This can lead to expensive responses that are not adequately funded and can leave county and local governments footing the bill.
APPR spoke with the authors to learn more about how their work is relevant to pretrial justice. Russell Gold is the Bainbridge-Mims Professor of Law at the University of Alabama School of Law, and Leah Nelson is a senior research associate at the Public Affairs Research Council of Alabama. Each spoke on their own behalf, not on behalf of their employing institution. The conversation has been edited and condensed.
APPR: Why don’t legislators sufficiently consider the fiscal costs of criminal lawmaking?
Russell Gold: Because it’s cheaper not to. It’s easier to pass legislation when you find ways to deflate the cost. It’s easier to afford things when you don’t pay the full amount for them. In the criminal legal system, one of the most prominent examples is the significant underfunding of prisons. We incarcerate people under truly terrible conditions, and part of that comes from underfunding. Incentives are complicated by the fact that different levels of government pay for different things in the criminal legal system, which makes it easier to shift costs onto somebody else.
Leah Nelson: Another way to ask the question is, Why don’t they assess these costs ahead of time? Because they don’t have to. In a lot of states, you’re not required to do a fiscal note—an estimate of what a bill will cost—on criminal laws. Legislative sessions are extremely busy, and people don’t add extra work for themselves if they’re not required to. And, as the article discusses, criminal lawmaking tends to be very popular when you’re making something newly criminal or making an old law harsher. It’s unlikely an opponent will raise the issue of cost, so the conversation just doesn’t happen.
APPR: Your paper suggests that, even when a fiscal note is required during a bill’s consideration, it doesn’t always get meaningfully incorporated into decision-making. What do you mean?
Gold: That’s right. It’s hard to know exactly what’s happening in any given state, but across the 50 states, whether fiscal notes are required for criminal laws varies. Often, they’re required but don’t actually get done, and there’s no real mechanism for recourse either way. When they are done, they can be so vague they don’t make a difference. “This will increase expenditures” isn’t specific enough to matter. You could do a lot more with an actual rough estimate.
APPR: What are the legislative incentives to appear tough on crime?
Gold: There are infinite incentives to appear tough on crime. Appearing tough on crime isn’t necessarily the same as being tough on crime. If you truly wanted to reduce crime, there’s a lot you’d do besides harsher penalties. You certainly wouldn’t incarcerate people in prisons where high rates of murder, sexual assault, and drug use are common. That’s tough on criminals, but it’s not necessarily a good strategy for reducing crime.
Nelson: That’s right, and part of the story is that crime leads the news, so legislators feel a need to respond, which is understandable. The public doesn’t think about crime in terms of macro-level data; they think about the crime they remember from the news, or perhaps witnessed or experienced. It becomes all about anecdotes, and it’s almost impossible to not respond to an anecdote. Sometimes that means legislatures pass criminal laws that are entirely redundant of existing ones just to be seen responding.
APPR: You suggest that not all criminal laws increase community safety. Can you explain that?
Gold: Criminal law is a tool for promoting safety. How do we ordinarily use it? We arrest, charge, prosecute, and incarcerate people, on the notion that we’ve at least incapacitated someone. But that overlooks a couple of things.
First, crime happening inside prisons, as I mentioned, is also a public safety issue. Second, unless someone is incarcerated for life, living in a horrifically dangerous prison makes them far more likely to do something that decreases public safety once they’re released. So, it’s short-sighted to assume incarceration automatically equals public safety. It can increase safety, but it’s not inevitable.
It’s worth asking, What are we actually trying to stop people from doing? If we’re talking about crimes of poverty—people incarcerated for living on the street, for example—it’s far from clear the cost–benefit works out in favor of incarceration or harsh penalties.
APPR: APPR focuses on the pretrial part of the system. The way you describe prison and incarceration can also apply to the pretrial system, where things like financial and other onerous release conditions can push people away from community stability and into doing what they need to get by.
Gold: I totally agree. Incarcerating people pretrial runs a serious risk of increasing crime. That doesn’t mean we never want to detain people pretrial, but we should be careful, because it affects their chances of ever going to trial and mounting a defense, and it affects their likelihood of committing other crimes. Again, if the goal is public safety, it’s not clear pretrial detention achieves that. It’s the same short-sightedness: incarcerate this person right now so they don’t do something bad, while overlooking everything else.
“[I]f the goal is public safety, it’s not clear pretrial detention achieves that. It’s the same short-sightedness: incarcerate this person right now so they don’t do something bad, while overlooking everything else.”
Russell Gold
APPR: What can you say about the misalignment of costs and budgets across local governments? How is this relevant for our audience of counties, cities, and towns?
Nelson: In most places, state legislators decide what is a crime and its classification. If something is a felony, it’s generally the state’s responsibility on the punishment end; if it’s a misdemeanor, it falls to local government—a county or municipality. Most law enforcement occurs at the local level, so these costs are borne by counties and municipalities.
The same is true of prosecution. In Alabama, where we’re located, only about 40 percent of the total budget of prosecutors comes from the state general fund. District attorneys must source the remaining 60 percent themselves from a combination of grants, county commissions, and fines, fees, and forfeitures. Local governments bear nearly all the upfront costs up until the point of penalty: the costs of arresting, jailing, staffing courts, and providing public defenders, and, since most crimes are misdemeanors, even the punishment costs.
State lawmakers do hear from county officials during criminal lawmaking, and that’s actually one place we see some fiscal mindfulness. Counties get concerned when new crimes are created and want them classified as felonies so the state bears the supervision cost. But those are intergovernmental conversations, not public ones, and the outcome is different than it would be in a public conversation, even though taxpayers foot the bill either way. It’s just a question of which bucket of money from which level of government.
Gold: The classic term in this scholarship is the “correctional free lunch,” as in, there’s no such thing. It describes how police (usually local) and prosecutors (county-level) make decisions that spend the state’s money on prison resources. Academics worry that when you’re spending somebody else’s money, you may spend too much of it—and that’s a dynamic we see over and over.
APPR: Some jurisdictions have enthusiastically adopted electronic monitoring and ordered it at high levels only to discover how expensive and onerous it is to provide effective supervision. How does an example like this fit into the cost/savings dynamic?
Nelson: Sometimes the cost of approaches like electronic monitoring is expected to be borne by the person being monitored or, more likely, their family. Yet, electronic monitoring gets floated a lot as a “free” alternative to incarceration.
If you have overcrowded jails and prisons, there are plenty of reasons besides cost to reduce that population, and it’s probably better for each person who isn’t incarcerated but shifting the cost to individuals or families discounts what that means for them. I’ve spoken to people who couldn’t comply with a payment plan, even at $30 a month, and ended up staying incarcerated, which is more expensive than $30 a month. That’s a strange outcome.
The idea that individuals should pay for their own supervision while they are free but the state pays for their incarceration—those costs should never be weighed against each other that way. Even if you did compare them, having the person out would be less expensive, all else equal.
Gold: In some ways that example highlights the same dynamic of not planning ahead—a “we’ll deal with it later” mentality. If we didn’t shift costs onto people charged with crimes, there’d be an actual financial incentive not to be short-sighted: if the local government making the decision is also footing the bill, the short-sightedness eventually costs them, and they become less short-sighted.
APPR: Your paper mentions that when government tries to fund the legal system through fines and fees, it is often counterproductive; usually only a small percentage of the debt gets collected, and collection can cost more than it recovers. Why is that?
Nelson: Since the 1980s tax-reform era, when taxes were cut broadly, fees have proliferated as an alternative way of paying for government services. In the criminal legal context, they’re generally assessed after conviction, though there are some pretrial fees too, especially if you’re detained: commissary upcharges, medical copays, and heavily marked-up telecommunications and tablet fees. People can drain their family’s bank accounts just staying in touch while detained pretrial. Those fees tend to go to private vendors, sometimes with the state taking a cut.
There’s no comprehensive national database on what percentage of this debt is actually collected. In Florida, clerks collect less than 10 percent. A recent Alabama commission found 15 to 20 percent of what’s assessed gets collected.
My research has shown that when the state assesses smaller amounts, more total dollars are collected overall. My hypothesis is that people facing an achievable amount will find a way to pay it, while people facing a debt they can never imagine paying just give up. So, collection rates are generally low, but we don’t know exactly how low. And that’s the smokescreen: there’s this imaginary pool of money out there, and legislators tell courts to go collect it rather than ask for funding themselves.
“The idea that individuals should pay for their own supervision while they are free but the state pays for their incarceration—those costs should never be weighed against each other that way.”
Leah Nelson
I recently finished an analysis of county-by-county variation in local fees added on top of the state baseline, using twelve years of data. We found that for every additional $100 a county added to its local fees, 34 more people per 100,000 were jailed in that county, a positive association between increased local fees and jail populations. We don’t know the exact causal mechanism, but we do know increasing local fees costs counties money—more people go to jail—and there’s strong evidence it doesn’t reduce crime. Increased jail population isn’t associated with decreased crime.
Gold: And, Leah, doesn’t some of your work also suggest that increased legal financial obligations actually lead to more crime?
Nelson: Absolutely. In my surveys and conversations with people carrying excessive fine-and-fee debt, 38 percent said they committed another unlawful act to pay off fines and fees from a prior offense. People described doing sex work or selling their prescribed Suboxone, an opioid-dependence medication, effectively becoming drug dealers, to stay current on fees. Theft, drug sales, and sex work were the top three things my research surfaced.
These aren’t decisions people take lightly, but the alternative is often debtors’ prison, so people choose what feels like the lesser of two evils. And some get caught, which restarts the whole cycle of prosecuting what are really crimes of desperation.
I think it’s important to distinguish criminality from desperation. These people don’t like what they’re doing, and they’re scared to do it, but they’re more scared of the alternative. And they should be. Jail is dangerous. And going to jail even for one night can permanently change a custody situation for a caregiver, or someone’s work situation. Increased system involvement doesn’t necessarily mean increased criminality.
Gold: I tend to think about fines and fees from an economically minded angle too. Part of it is simply, How much do we actually collect? You don’t get to count money that never comes in. But another part is that bringing someone through the criminal legal system imposes real costs not just on the person charged but on their families. When we do that, we shouldn’t deflate the marginal cost of doing so; we should face the full cost and decide if it’s worth it, because otherwise we’ll do it too often.
APPR: You mention several procedural tools jurisdictions can use to fiscally restrain criminal lawmaking. Can you describe those and how they can be used?
Gold: Our big-picture vision is that legislatures would face up to the actual costs of their choices. They can decide how much to spend on criminal law enforcement in a way that best represents their constituents. But they shouldn’t be able to do it “on the cheap.” To strike that balance, you need a reasonable estimate of what a proposed change will cost and then a plan for how to pay for it. Take “mandatory offsets,” known in Congress as “PAYGO”: the idea is that if you’re going to add expenses, you must identify revenue to offset them. If a new felony is going to cost millions in incarceration and will spin off costs onto counties—police enforcement, prosecution, county jails for pretrial detention—you can’t just ignore that. You have to identify an actual, plausible revenue stream, and not “monopoly money” that we know won’t actually come in from charging defendants who can’t pay.
So, you can choose to cut spending elsewhere or raise taxes. Raising taxes is politically hard, and that difficulty is useful, because it forces the real question, Is this worth it to us? Is it worth incarcerating this many people for this law? That’s a question we don’t face often enough.
Nelson: Talking again about fiscal notes, the Alabama legislature passed a controversial gun control bill last year. In session, no one ever asked about any direct or indirect costs. The legislature itself produced a small fiscal note suggesting that fines and fees from the law would actually raise revenue. But there’s no empirical reason to believe that and, in fact, evidence suggests the opposite. If fiscal notes are going to be useful, even if they are estimates, they need to be grounded in fact.
Also, with new crimes, like the new gun law, you don’t know how heavily it will be enforced. That’s why sunset clauses might make more sense. They create the law as temporary, giving the legislature the opportunity to not renew it later if it ends up costing too much or not working. They avoid relying on a one-time guess.
Gold: These tools are closely related, though they have different strengths. Fiscal notes are the gentlest; they just draw attention. PAYGO, where you have to actually offset the cost, is a different, stronger mechanism. And, because it’s hard to get good data up front, there’s real benefit to laws sunsetting and being revisited later with actual evidence.
The basic idea running through all this is: get as good a calculation as you reasonably can of what something will cost and make decisions based on whether it’s worth it.
