Cost-Benefit Analysis in Criminal Law

This Article explores the prospects for integrating criminal law into the widespread trend elsewhere in the executive branch of using costbenefit analysis (CBA) to improve criminal justice policy making and enforcement practice. The Article describes an array of unnoticed and undervalued costs created by America's unique and fairly recent commitment to severe incarceration policies. It then maps the challenges for employing CBA in criminal enforcement practice. Those challenges include CBA's own methodological and conceptual limitations, public choice problems created by the populist structure of criminal justice administration, constraints on CBA in criminal justice in light of theoretical commitments to retributivism, and practical limits to employing such a policy in the executive branch when legislatures are unwilling to reduce statutory punishment mandates. Despite these obstacles, the Article argues that a properly devised, CBA-based decision procedure-one that takes account of distributive and other non-quantifiable, qualitative concerns-is a promising avenue for rationalization and reform of state and federal criminal justice.