PAYGO for Criminal Sentencing: Political Incentives and Process Reform

The American criminal justice system is exceptional, characterized by uniquely high sentences and uniquely large numbers of incarcerated individuals. This regime is perpetuated by a political system that fetishizes Americans’ short-term pushes for increased punitiveness when crime rates increase. Drawing on political process and representation reinforcement theories, this Note argues for a novel statutory solution that would help place a brake on retributive short-term preferences, while prioritizing criminal statutes that would challenge mass incarceration. This Note posits that by adopting state budgetary laws that mirror PAYGO budgetary rules and statutes, state legislatures can control the spiraling costs of administering local prison systems without jeopardizing legislators’ political futures. Criminal sentencing PAYGO, like Minnesota’s famous sentencing guidelines, would force policymakers to view criminal sentencing as a complete system, requiring tradeoffs and compromises. Through criminal sentencing PAYGO, states and their citizens can realize democratic and criminal justice administrative gains.