Mercenary Criminal Justice

To some degree, money has always figured in criminal justice. Early on, private enforcers of the criminal law received payments for their work. Remuneration played a less explicit but still prominent role in the nineteenth and twentieth centuries as public actors carried out the work of criminal justice. Today, amid significant budget pressures brought on by the Great Recession and the costs of running the nation’s massive criminal justice apparatus, courts and other system actors rely heavily on a growing number of legal financial obligations (“LFOs”) as revenue sources. When this happens, courts and other system actors become mercenaries, in effect working on commission. While a significant body of literature now exists on the adverse personal consequences of LFOs for offenders, this Article is the first to offer a comprehensive examination of their legal, policy, and institutional ramifications. To date, courts have provided little principled basis to regulate the risks associated with LFOs; nor have governments monitored their creation and use on a systematic basis. To mediate these risks, and to create an institutional check on LFOs, the Article proposes the use of LFO commissions. Commissions, because oftheir system-wide vantage point, will be able to inventory and assessthe propriety of existing LFOs, and monitor their use going forward.In so doing, they will lend order and transparency to LFOs, and mitigatethe risks they present to individual offenders and the integrity ofthe criminal justice system as a whole.

The full text of this Article is available to download as a PDF.