Contract or Prison

Authors

Sadie Blanchard, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

2025

Publication Information

92 U. Chic. L. Rev. 901 (2025)

Abstract

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow.

While the norm of expanded choice that justifies enforcement of contracts has prima facie plausibility in this context, IA agreements are not concluded under the conditions assumed in classical contract theory. That is because these contracts are based on coercive background entitlements: rights to sell access to the only escape from punitive government measures. Those coercive entitlements leverage the criminal enforcement system to extract money from defendants and expand the reach of criminal sanctions beyond what the state could achieve without resorting to con- tract. While regulating IA contracts might in principle restrain their inherent exploitive potential, the minimalistic legal frameworks actually constructed do not do so. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. It examines forty IA contracting regimes for the presence of features that might mitigate exploitation.

If contract law is being used coercively against criminal defendants, its limiting principles might provide redress. Applying contract law to allow defendants to rescind or reform these contracts and get their money back once the threat of criminal sanctions has subsided could undermine the economic basis of the practice and lead to broader restructuring of how IAs are financed. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.

Recommended Citation

Sadie Blanchard, Contract or Prison, 92 U. Chic. L. Rev. 901 (2025).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1733