Taboo Trades
Taboo Trades
Contract or Prison with Sadie Blanchard
My guest today is Sadie Blanchard, a Professor of Law at the University of Notre Dame. She teaches and writes about contracts, corporations, and international business law. Her research examines how legal institutions interact with social forces to shape behavior, especially in markets. She’s here today to discuss her recent article, Contract or Prison, in the University of Chicago Law Review. The paper discusses the expansion and privatization of “Incarceration Alternative” arrangements, such as electronic monitoring, criminal diversion, and parole and probation. Blanchard argues that, while the norm of expanded choice that justifies enforcement of contracts has prima facie plausibility in this context, the agreements ultimately fail under classical contract theory because they are made against the background of entitlements created to extract value from people using the coercive power of the criminal legal system. This episode is co-hosted by UVA Law 3L, Kyndall Walker.
Show Notes
Sandie Blanchard, Contract or Prison (forthcoming, University of Chicago Law Review 2025)
Additional Reading Discussed (or relevant to the discussion):
John H. Langbein, Understanding the Short History of Plea Bargaining, 13 Law & Society Review 261 (1979)
John H. Langbein, Torture and Plea Bargaining, 46 Univ. Chicago Law Review 4 (1978); republished in Spanish as “Tortura Y Plea Bargaining,” in El Procedimiento Abreviado (J.B. Maier & A. Bovino eds.) (Buenos Aires 2001); substantially republished in The Public Interest (Winter 1980) at 43; latter version republished in The Public Interest on Crime and Punishment (N. Glazer ed. 1984)
Robert E. Scott & William J. Stuntz, Plea-Bargaining as a Social Contract, 101 Yale L. J. 1909 (1992). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/317
Emma Kaufman, "The Prisoner Trade," 133 Harv. L. Rev. 1815 (2020)
Sadie Blanchard: You know, we, we usually think about contract as being something we, we do and something we the law supports because it expands our choices, it gives us access to more choices and that makes us better off either economically or it, you know, it, it, it improves our autonomy.
And I, it wasn't clear to me that that was what was happening here.
Kim Krawiec: Hey. Hey everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell but do anyway.
I'm your host, Kim Kravik.
My guest today is Sadie Blanchard, professor of Law at the University of Notre Dame.
She teaches and writes about contracts, corporations and international business law.
Her research examines how legal institutions interact with social forces to shape behavior,
especially in markets.
She's here today to discuss her recent article,
Contract or Prison and the University of Chicago Law Review.
The paper discusses the expansion and privatization of so called incarceration alternative arrangements such as electronic monitoring, criminal diversion and parole and probation.
Blanchard argues that while the norm of expanded choice that justifies enforcement of contracts has prima facie plausibility, in this context,
the agreements ultimately fail under classical contract theory because they are made against the background of entitlements created to extract value from people using the coercive power of the criminal legal system.
This episode is co hosted by UVA Law 3L Kendall Walker.
All right, why don't we start by having you introduce yourself to our listeners.
Kyndall Walker: Hi, my name is Kendall Walker. I'm a 3L at UVA Law and I've spent my time in law school and hopefully will devote my entire career to indigent criminal defense. And so as a result, I've spent a lot of time thinking about concepts like plea mark bargaining and incarceration alternatives.
But I've not taken the time to consider these concepts under the lens of contract law. So I'm eager to hear Sadie expand on some of the points she raised in her paper about the dangers of privately funded, non regulated contracted incarceration alternatives.
Kim Krawiec: This is a episode that you volunteered to be the host of.
And so my next question was going to be why? But it sounds like it's because it's really in your wheelhouse and sort of a very important subject to you, but can you expand on that at all?
Kendyl?
Kyndall Walker: Yeah, I've read criminal law papers that argue for abolition of private funded practices and advocated for fully public and governmentally regulated activities such as universal public defense. So I was intrigued by the prospect of considering IA under similar circumstances.
And I'm especially interested to hear how Sadie responds to critics of her paper as it pertains to their discussion of the advantages of expanded choice rationale.
Kim Krawiec: Interesting. So we have a lot of questions for her today, both from you and from your colleagues. Anything in particular that you're really looking forward to talking to her about or learning about?
Kyndall Walker: Yeah, I'm particularly interested to hear more about any insight she has from defendants themselves and if they've put any input into how these expanded choices might be beneficial for them or how they might agree with her and think that they are potentially coercive and dangerous.
Kim Krawiec: Yeah, I'm interested in that, too. Whether there's been any ethnographic research, for example, exploring the views of defendants themselves, or even more anecdotal sort of, I don't know, investigative reporting type of stuff.
For what it's worth, I would prefer an academic paper, but I would be interested in what else is out there. Well, let's join the others.
Welcome. Sadie, thanks for joining us.
Sadie Blanchard: Hi, Kimberly. Great to be here. Thanks for having me.
Kim Krawiec: So can you tell us a little bit about how you came to this project and sort of what your. What your interest is in the subject matter?
Sadie Blanchard: Um, I've been writing about contracts for years, but this isn't the kind of contract that I usually write about. I am usually studying contracts between highly sophisticated parties with equal bargaining power.
Um, so I wrote about this because I learned about somebody that it happened to. I heard about it from somebody that it happened to.
And so this paper is about contracts for alternatives to incarceration.
And this is where somebody who's suspected of a crime or has been convicted of a crime, possibly has pled guilty,
is either told you have to contract for some form of punishment that could be in. The four types that I talk about in the paper are electronic monitoring,
criminal diversion programs, parole and probation,
and halfway houses. So they're either told you have to contract for this, here's the company that you're going to deal with,
or they're given some kind of baseline punishment or preventive measure that they're subject to.
And they're told if you want to access this less severe alternative, you need to contract and pay for it.
So when I first heard about this,
my. My reaction as a contracts professor was that sounds kind of like duress. That sounds kind of coercive. It doesn't seem like a good fit for contract.
And the person who told me about it said, yeah, I thought the same thing. But when I said. Said that to my lawyer,
he told me, oh, no, it's not coercive. And in fact, you're going to have to sign an affidavit attesting that you weren't coerced into doing this.
And that struck me as incredibly Orwellian, because, of course, forcing somebody to attest that you're not forcing them doesn't make what's happening any less coercive.
So I became interested in understanding this. So I wanted to know how widespread is it?
Is it regulated?
Have there been any challenges, any legal challenges to it? And then also,
I wanted to think about it from the perspective of contract doctrine, like the law of contract, the common law of contract,
and contract theory. So this,
you know, we usually think about contract as being something we do and something the law supports because it expands our choices, it gives us access to more choices, and that makes us better off,
either economically or, you know, it improves our autonomy. And it wasn't clear to me that that was what was happening here.
So those are the questions I set out to answer.
Kim Krawiec: Thanks so much. And one thing I'll have to take note of is that I think the shorthand you're using is IA contracting. And I, because I'm so used to saying AI, I keep inadvertently saying AI contracting.
So somebody correct me if I do.
Sadie Blanchard: That today, or I'll try to keep it straight, too. Yeah, yeah.
Kim Krawiec: Or maybe I'll just make a blanket disclaimer right now that what I mean is ia, not AI. So.
So I'm going to turn this over to Kendyl, and she is going to lead us from here.
Kyndall Walker: Thank you so much.
So, Sadie, I know that you just mentioned in your initial introduction that you were kind of introduced to IA from a defendant that maybe you came into contact with. And so perhaps my question kind of will allow you to expand on that introduction.
So my question is that your paper expresses a worry that IA contracting undermines public trust in the criminal system.
Is there any research on the views of those most impacted by IA contracting? And if so, what does it show? And I'm particularly interested in how this impacts marginalized communities that are disproportionately targeted by these programs.
Sadie Blanchard: Yeah. And so I'm not aware of any research specifically on how people perceive this.
Perceive this kind of contracting.
I would argue that we can get some sense of that by research showing how people view other kinds of policing and criminal enforcement practices that I argue are similar to this.
So I would give as an example the Department of Justice's Ferguson Report,
which investigated the practice of policing for profit in Ferguson, Missouri. And in that report,
it's discussed how the practice created deep resentment and mistrust by the people who were being subjected to this practice because they came to see the system as being predatory and really focused on and raising money from them instead of being about ensuring public safety.
And this is something that I, I've heard from people I've talked to who've experienced this. Now. It's not a, it's not anything close to a representative sample, but, but that it's, it seemed like, it seemed like a fundraiser.
It seemed like, like they shouldn't be,
the police shouldn't be able to force you to do this.
So I would say that another practice that Americans in general,
and this is in a study particularly of the people subject to this, but of the general public views of it,
civil asset forfeiture is a practice in which police seize property from people who are suspected of drug crimes even, but without any conviction.
And 84% of Americans oppose this practice because they see it as, they see the incentives to,
to use,
use this ability to seize property without a lot of process as being too dangerous and too susceptible to being misused.
So there is broad opposition across demographic lines and across partisan lines of civil asset forfeiture. So I argue that this IA contracting presents a similar structure. It's a situation in which the state criminal enforcement power is tied together in a way that weakens procedural protections and therefore creates incentives to threaten to use the power extractively or to use it extractively.
So I would argue that we should expect people to have similar reactions to it.
Kyndall Walker: Thank you so much for that answer. That's really insightful. And I'm actually going to have Denise ask a follow up question that'll talk a little bit more about what potential indigent clients are saying about information gaps in this coercive element that your paper talks a lot about.
Sadie Blanchard: Hi Sadie, thank you so much for being here with us. When reading your paper, like my understanding of your argument was that many defendants don't have a good idea about their rights or what to expect from the criminal justice process, and that leaves them with an information gap when evaluating whether to contract with ias.
My impression, however, from speaking with some public interest friends who've worked with defendants, is that those defendants are often pretty well informed about their rights and what they can expect from the process.
So if your assumption about the information gap is incorrect, do you still find IAS to be an equally coercive tool, or does that kind of shift the power dynamic?
And do IAs become a more ethical tool if defendants are aware of their rights, but yet still choose to exercise that Option.
Yeah, I love that you're both pushing me on the empirical basis for claims that I'm making. I think that's so important.
And so for this one, I didn't rely, so I didn't rely on a study,
but I, I did find one after the paper was published.
There's a study from 2018 by an organization called the center for Court Innovation, and they did this study with a grant from the Department of Justice.
They surveyed about 800 people who had, had been involved in the criminal justice system,
and then they did in depth interviews with about 100 of them.
And the sort of overall picture matched what you, what you were describing that people said, well, they thought that overall, sort of across the course of the whole process, they received enough information,
but they didn't always receive it at the right time in the process.
And there was a substantial number of people in the interviews who reported not understanding, like, essential aspects of their proceedings,
the language that was being used, and particularly particular procedures like plea bargaining.
And people also said that they felt like they were exploited because they felt pressured to agree to things that they did not understand.
But you're right to notice and point out that I didn't cite a study for my argument about this informational disadvantage.
What I was basing it on was, I suppose, what I would say you can just see from the facts of the situations that are described in lawsuits or in some of the investigative reports that have been done about this.
And so I think that it,
the kind of informational disadvantage that I'm talking about, like, isn't necessarily inconsistent with what you have observed about people saying they generally understand their rights because they could understand some of their rights, but not understand maybe the core ones that are important to,
to how they can be treated by these companies.
Or maybe it's just that there are some people who understand their rights and other people who don't. And a lot of the reports and the lawsuits involve people who, who, who didn't understand.
So I'll just give a couple of examples.
If you think about this. I, I'd describe this story early in the paper about people who had bounced a check and they received this letter on the do the district attorney's letterhead saying,
you know, we have information suggesting that you committed check fraud and you're, you're subject to prison or a very large fine, but if you, like, call this number and do this diversion deal,
we'll make it go away.
And so I would say, like, when I see that, I, I think it's reasonable to Assume that at least some of the people who get that letter, like, don't know what the law of check fraud is.
They don't know that intent has to be proven to establish it. They just get this scary letter that says that they've committed check fraud. They don't know how intent would be proven or how hard it is to prove.
Even if they know that it has to be proven,
they don't have much of a basis for calculating the chances that they're going to be convicted of check fraud. Even if they didn't mean to bounce the check,
they don't know how long it's going to take to contest this. They don't know how much it's going to cost to contest this.
And I would say it's relevant that for most of the people who are offered these kinds of programs, the criminal charges are like minor enough that they're not eligible for publicly provided defense.
So they don't even necessarily have a lawyer to kind of help them assess the situation.
What instead, like, they're just facing the risk of some very bad thing happening to them,
lacking the information that they need to calculate the sort of expected cost of that, and then offered this alternative that will just make it go away.
So, and then, so that's one example of kind of an informational asymmetry that I would argue puts these people at a disadvantage. And then another is some of the practices that come out in the, in the lawsuits and in some of the investigative reports where the firms are telling people they can do things to them,
they're threatening to put them in jail, they're threatening to do things that they actually don't have the legal right to do.
And the people don't know that. So they're susceptible to these threats.
So I agree. I think you're right to point out that if defendants had, I mean, knowledge is power,
if they knew they're right, if they had good advice,
it would really make this a lot less bad.
I still don't think it would be unimpeachable, but I think that would help. That would go a long way.
So, so, so I agree with the point.
Kyndall Walker: Thank you so much, Sadie. And then we actually have another follow up question that talks a little bit more about coercion and some of the examples you illustrated in your paper.
And that question is going to be from Gabe.
Speaker D: Hi, Sadie, thank you for being here with us.
I wanted to ask if you could discuss in a little more detail your argument that IA contracting is coercive. So the way that I Understood it is. The argument is that IA contracting is more like the example of the rescuer who didn't necessarily cause the survivor's precarious situation, but seeks to exploit it.
I'm not really sure if I follow that analogy when I was reading the paper.
And then also, if you could touch a little bit on the baseline discussion that follows, like kind of the removal of a reasonable expectation from the individual.
Sadie Blanchard: Yes. Okay. So.
So the place to start is,
why do we generally presume that contracts make people better off and that they're presumptively legally enforceable? And it's this idea, as I sort of noted at the beginning, that we think that what they do is expand the choices that are available to us.
So the fact that I can, you know, make a contract and bring the law to bear to enforce my promises gives other people the assurance that they need to trade with me, and then that gives me more choices than I would have otherwise.
And I would say that when you first look at this, it's sort of. It sort of seems like it applies, right? So the person is facing punishment, and now they're offered access to something better, like a less severe punishment.
Their choice set has been expanded.
But it still bothered me and still bothers me. It seems like something is not quite right here. And what I've identified as the problem is that the choice is based on background entitlements and the use of coercive discretionary power.
That is where the coercion is kind of baked into the background,
the background entitlements and the sort of background conditions.
And so the way that I would put that the most simply is that what these governments are doing is threatening punishment and then giving a firm the right to sell access to the only escape from punishment.
What's tricky about it is that, of course, the escape makes the person better off. It increases their choice set in a good way.
But we can think of other examples in which somebody's in a situation where contracting is better than another available choice, but we still think it's coercive.
The easy case.
And so contract theorists and philosophers have these sort of standard hypotheticals that people use to think through this problem. How do you distinguish a coercive,
a coercive contract offer from a voluntary contract offer?
And so the. The first hypothetical is this easy case of the gunman who says, you know, your money or your life.
And.
And then the harder case was the one that you mentioned, which is the. The. The rescuer. So this is this. This hypothetical about a ship in distress Maybe it's in a storm.
And then a rescuer, sort of innocent rescuer comes along, finds the ship in distress and offers to rescue it, but at a very.
At a very high price,
at what's considered to be an exorbitant price.
These two hypotheticals are used to distinguish threats from offers. So the idea is that what makes something coercive is a. Is that it's a threat that takes away a choice this the person had before,
instead of an offer that adds a choice that the person didn't have before.
So the gunman is an easy case. Like before the gunman came along,
you expected to keep both your money and your life. You could have them both.
The gunman comes along and says, no, you have to choose one, right? So then the question is, what is the baseline that we're using to decide whether a choice has been added or taken away?
And the two that are the most widely used are what's called a phenomenological baseline and a moral baseline.
So the phenomenological baseline is just what did the person expect before they encountered this other party? What did they reasonably expect before this other party came along with the gunman?
So, as I said, that's easy. They expected to keep their money and their life. Now they are put in a situation where they have to choose one that means an option has been taken away.
That's a threat.
Another baseline is what you're. What the person's morally entitled to.
Here again with the gunman, this is uncontroversial. Everyone agrees that you're entitled to keep both your money and your life. This gunman has no moral right to take either of them away from you.
So this is a threat under either of those tests.
Another test that some people apply is to think about, and this is kind of more economically law and economic scholars, let's say,
is to think about what incentives would be created by enforcing this deal.
Would enforcing this deal incentivize people to invest in the power to make violent threats or wrongful threats that force transfers from other people?
And with the gunman, that's clearly, yes. Like, we don't want people to think, oh, if I go around threatening other people and get, get getting them to give me things or make promises to me, then I will just be better off.
So the law allows people to rescind contracts that are made under duress.
The distressed ship hypo is diff. Is more difficult.
And contract theorists disagree and philosophers disagree about whether this is a coerced deal.
So some of the disagreement Maybe most of it is about what the right baseline is to use for assessing whether a choice has been added or removed.
So if we apply the phenomenological baseline, what did the ship captain reasonably expect to happen before this rescuer came along? Well, probably not anything very good.
They were already in the situation of necessity. The rescuer didn't cause it.
And if the rescuer hadn't come along, presumably they were just going to sink.
And so many people who apply that baseline say, this is not coercive. This is an enforceable contract.
A choice has been added to this person's options,
and they really focus on the fact that the rescuer didn't cause the distress, but just found the person in distress.
Some people who apply a moral baseline say no, the,
the ship captain is entitled to rescue as a reasonable price. At a reasonable price. He has an entitlement, he has a moral right to being relieved from this situation, this dangerous situation at a reasonable price.
And so demanding more is a threat. It takes away what he's entitled to as a moral baseline. And actually, as a matter of law, that's, that's basically the law around rescues of distressed ships at sea.
And so courts don't just enforce those deals on the basis of their own terms. They look at them and they will reform, like the price, for example. They'll see whether the price was a reasonable price for the service.
So if we think that the IA provider is like the rescuer at sea, it's just an innocent party that came along and found this person in a situation of distress, then we, we would probably be more in disagreement about whether it was coercive than if we thought that the,
the provider was more of like the gunman.
And I think that maybe our,
a lot of us have the intuition when we first come across this that it's more like the rescuer situation, right? This person is involved with the criminal enforcement system for some reason that has nothing to do with this provider.
This provider comes along and offers rescue.
The defendant is facing criminal enforcement either because they're suspected of a crime or because they've been convicted of the crime.
It doesn't have anything to do with this provider. And I argue that's the wrong way to look at this.
I start by observing that the IA provider is exercising delegated powers from the state.
The state has asked it to do this,
and so we should treat them as one actor. So I just call that combined unit the state IA provider. And so unlike the ship captain and the storm,
the risk that's facing this Defendant is not some exogenous situation that's unconnected to the contract offer.
I want people to see that the state IA provider as a unit causes the defendant's risk of facing the more severe criminal enforcement measure.
And to show that,
I want people to see that the government has discretion over what punishment it's imposing.
And the fact that it's willing to offer the less severe punishment in return for contract shows that the less severe punishment satisfies the criminal enforcement goals, whether the state is trying to achieve deterrence or retribution or incapacitation.
The fact that it's offering the less severe measure shows that the less severe measure does what it wants to do.
And so,
and the defendant, when they are told,
you can have this really bad option,
or you can pay and have this better option,
seize that.
And so what the defendant sees is that the state has constructed a regime that uses its discretion over what measures to impose to threaten a worse penalty or a more severe preventive measure than it really thought it needed to impose in order to get the person to agree to the contract.
Kim Krawiec: Can I just follow up on this? I'm not sure I follow this analysis of the baselines.
I mean, the state.
There are two states of the world that meet the state's goals. The first is a high but uncertain punishment after the expense of a trial that's costly for the government.
And the second is a lower punishment, a lower but certain punishment that avoids the expense of trial.
Right.
And it sounds to me like you're suggesting that that offer shows that the state should be willing to settle for a third alternative not being presented,
which is the lower punishment that is certain.
I mean. Sorry, the lower punishment that is uncertain and still carries the risk of trial. So it's. I don't follow the argument. That seems like a different alternative than the one that has been presented by the state.
Sadie Blanchard: Yeah, so I see the point that you're making that the state has process costs and so does the defendant.
And the state is crafting an alternative that leverages, I guess, something that reduces the process cost in exchange for reducing the threatened punishment.
I guess that sort of what my argument hangs on then, is that this is a wrongful use of the criminal enforcement power. It's just. It's not a legitimate use of it.
And I would. I would argue that it's analogous to blackmail.
So the state has the right to do this. It's. It's. It's not an unlawful thing that it's doing.
But if we think about blackmail, blackmail criminalizes threatening to do Something that wouldn't itself be criminal to do. And I'm not saying that this, these contracts are blackmail. Exactly. Or criminal even.
I'm just trying to use it as an example to show what I mean about this being a wrongful use of the, of the power. So it's lawful to publicize truthful, compromising information about a person, but it's blackmail to threaten to do that unless they pay you or do something that you want.
And I would say that this is similar in that it's.
Kim Krawiec: I mean, Sadie, I would agree with you, but as you know, there's a large literature that contests the blackmail prohibition for, on, on exactly these grounds. Right. So I just, I guess I just don't.
The blackmail analogy,
I think, just highlights some of these same difficulties. And just to be clear,
I found many of your points persuasive, but the coercion one,
I struggled with.
Sadie Blanchard: Okay, so, yeah, so this is going to be like a morally very contested issue. Blackmail is controversial.
Plea bargaining is controversial because people just come at it from very different priors. I suppose I,
in the plea bargaining debate, find the arguments that plea bargaining is coercive the more persuasive side of the argument. And this is, is basically in agreement with that side of the debate.
So,
you know, I think one person who,
who I, I think hit,
hit really well on, on the problem with plea bargaining is John Langbein in his article Torture and Plea Bargaining, who, who talks about how it leads to changes in the sort of background conditions that are made to allow prosecutors to threaten more serious punishment in order to get people to agree to the less serious punishment.
And that is like, I think it's a, it's a, a malevolent sort of dynamic that is introduced when you introduce bargaining into a situation that's inherently coercive.
In general,
when, when the state is exercising its most coercive powers, we tend to think that it's subject to the, the, the highest level of procedural protections to,
to protect people. Right. From the abuse of those powers. And so bringing contract into the situation to relieve the state of its burdens of process and for what it's doing is a dangerous move.
We've accepted it in plea bargaining. Basically,
people have come to think it's just this necessary evil and we can't do anything about it.
And I would say, then let's stop there and not extend it even further and put people in a situation where they're subject to be having money extracted from them using the same kind of process.
Kyndall Walker: Thank you so much. Seydi I really appreciate that response. And now we have a question from Reid.
Speaker D: Hi Sadie, thank you for coming to speak with us.
Changing tacts a little bit.
Like many readers, I found the comparisons you draw between the modern IA regime, the post slavery racial peonage system,
and the English government for profit system really striking.
Could you talk a bit more about your intent in drawing these connections?
Do you mean to indicate that the system shares some common cultural motivation,
like for instance, structural racism?
Or is the argument simply that IA looks very similar to unconstitutional peonage?
Sadie Blanchard: Yeah, so.
So the core of the argument, the point that I was trying to make in that section, is that IA contracting has the same structure at a high level as those historical practices.
I'm not arguing that it's as bad as race based peonage was. It was not. It is not.
That practice was incredibly brutal and horrific.
But I would argue that it has the same basic structure. So you asked if I'm trying to make a point about structural racism. That wasn't sort of the core point that I was trying to make.
Although we obviously the involuntary servitude system was underpinned by structural racism.
And we would have to be blind not to see the racial underpinning of IA contracting. If we just look at the demographics of who is more likely to be subjected to this.
But the main point was to show that we've been here before, that we've done things like this before,
and that US Citizens have rejected practices that are similar because they recognize those to be exploitative and to undermine the legitimacy of the government.
So there are also some particular similarities, I would argue, between the history of peonage and some of the things that have happened in more recent times that,
that we should pay attention to because they highlight the ways that the law can be used to coerce and lock people into contracts.
So. So, for example,
when Southern states were enacting peonage,
one of the first things they did was criminalize breach of labor contracts, which had never been done in the United States before.
They also passed laws restricting competition for the labor of black workers. So they, they criminalized something called enticement, which was offering a black person a job.
So the idea was to put them in a situation where they had to work because,
because the definition of vagrancy, for example, was broadened to include like, even like working for yourself, basically.
And they couldn't switch employers. So they're sort of locked into the situation.
And again, while I want to be careful not to say this is just as bad,
but it's not. But we have, we see some similar dynamics. We see the breach of these contracts being criminalized,
which is, which is not something that we typically allow for a breach of contract.
And that's either de facto or as a matter of law. So some states have law on the books that say that people can be immediately jailed if they fail to make payments to these, to these companies.
And we also have, if we look at the governing regimes, a sort of structure that restricts competition in these markets. So you have people who are forced to deal with a particular firm in order to stay out of jail and they don't have options to deal with a different firm.
I would also point out that when the southern states set out to create the pannagers regime, like what they did was criminalize an expanding set of behaviors to try to funnel more people into the system.
And especially they did that by creating new low level crimes that could be punished by fines and so that the people could be sentenced to fines and then forced to go work off their fines.
And again, I'm not making an argument that this is intentional, but I would just say notice that we have a similar dynamic happening now. We have criminal enforcement increasingly focused on low level offenses where it's now about 80 to 90% of criminal cases are targeting low level crimes.
And I'm just saying it looks similar. So we should be aware and alert to the risk here for, of exploitation.
So from the history of government for profit, there are some different aspects of that that I thought were illuminating.
One was the variety of different means that were tried to kind of regulate this practice of official bargaining with citizens and that failed.
So it was kind of this game of whack a mole where legislatures kept trying to do different things to sort of control this and it just didn't work.
And so what happened is that people had repeatedly these interactions with these officials who were really private actors who were given a monopoly to perform some government service and were authorized to charge people for it.
Right.
So if you wanted them to do what they had the power to do, you had to pay them.
And people just came to see from their experiences with these, with these officials that a lot of time the situation was predatory and they felt like they were being extorted.
Kyndall Walker: Thank you so much. So we're actually going to ask a follow up question on some of these practices and the abolition of racial peonage. And that's going to be asked by Cindy.
Sadie Blanchard: Hi, Cindy. Sadie, thank you so much for joining us today. I did want to follow up on Some of the parallels that you're drawing between the practices.
Are there any other societal or political forces that were critical in abolishing racial peonage and the government for profit systems that could be similar and could be used strategically to abolish IA contracting today?
And could you explain why or why not those forces aren't applicable today?
This is a fascinating question. And so I'm not an expert on the history of those movements, but I can say a bit about each.
So the history of peonage was complex and winding. And so the particular practice that I focus on in the paper is where individual defendants are sentenced and then basically directed to contract directly with an employer and the employer would promise to pay off the criminal fine.
So it was a sort of direct contract between the defendant and the employer,
which is the most like the practice that I'm focusing on in this paper.
And that particular practice was challenged under the Anti Peonage act, which was a federal law,
and then federal prosecutions,
and then finally outlawed in the early 1900s by two Supreme Court decisions.
But unfortunately, those weren't sort of ultimate and final victories because what the states did was just adjust what they were, how they were structuring the forced labor. And so they couldn't anymore direct defendants to go and individually contract with employers.
So what they did was the. Was they created prison chain gangs, or that they already existed, but they moved to that as the standard practice. And then the prison or the state itself would.
Would contract with the employer. So again, you have this kind of game of whack a mole. And it really was a social movement that overturned like that led to eventually ending this as a general practice.
Although some people argue that we still practice forced labor in prisons. It's definitely at a different level than it was historically.
But the social movement involved journalists, social reform advocates,
labor unions, which is maybe an interesting kind of example of a Baptist and bootlegger alliance. Because the labor unions were arguing that this practice was undercutting the wages of white workers and religious groups.
So they, they were all working to raise awareness about this. And it was so brutal and so horrific that it wasn't that hard to show people like once you sort of show like talked about things that actually happening and to sort of also kind of bring in or get the support of people who maybe didn't care that much,
unfortunately, about what was happening to these black men.
Another sort of aspect of the movement focused on highlighting the corruption that was involved, how it's being used to enrich certain private parties and certain government officials.
So the movement against government for profit was broader because it affected so many more people. It didn't only affect a relatively small group that a lot of people didn't care about.
It affected a lot of different people.
And so you had populist movements of farmers and working class voters that were agitating for relief from what they experienced as predation from these officials.
And then progressive reformers, you know, were engaged in a sort of anti corruption movement.
It was part of the anti monopoly movement and then pushing for a professional civil service.
So whether those movements offer lessons for how we can deal with this today is like a really complicated question. It's a really good question and. But I would have to spend a lot more time studying them and honestly trying to understand better our present political moment, which is quite confusing to be able to answer that question.
Kyndall Walker: Well,
thank you so much, Sadie. And in the interest of time and because I'm so interested to hear about your expertise, we actually have a question from SARI more about contract theory and how that applies to your paper.
Sadie Blanchard: Good morning, Sadie. Thank you for joining us. So you suggested that IA contracts may lack consideration because the firm has made no express or implied promises to the defendant.
Does the firm's agreement to provide a defendant with services such as ankle monitoring not constitute a promise? And even if it's unclear, is it possible that the traditional contract law framework, which generally presumes consideration exists,
might complicate the critique of IA contracts as coercive, given that these arrangements might be framed as standard service contracts? If you could expand a bit on your reasoning. Thank you.
Yes. So I agree with you that on the face of it,
and I would say even on closer scrutiny, there's consideration here.
So the, but the. I got that idea from some judicial opinions holding otherwise. And those were cases that were brought by these criminal defendants against the IA provider.
And for the. They weren't contract breach of contract suits. But in order for the defendant to have suits standing, basically to pursue the suit, they had to show that they were in a contract with the company.
So two of those were halfway house lawsuits against halfway houses,
and one was a probation provider.
And the courts in those cases held that the criminal defendants did not have standing to sue because they didn't have any contract with the provider. And the reasoning used was all these companies are doing is exercising criminal enforcement power that the state has delegated to them.
They haven't made any promises to these people.
They could stop doing the service at any time that they want. They don't owe these people any Any duties.
And so there's no contract, and therefore there's no standing to sue.
So I think that those decisions are wrong.
But, you know, what's good for the goose is good for the gander. And so there's precedent for this argument. And it's an argument that an entrepreneurial lawyer could use to try to get relief for a client.
And so the sorts of scenarios that I can imagine somebody making this argument would be, you know, a person, a person who's still in the middle of serving their sentence is not going to do this because they're just inviting trouble and retaliation.
But maybe somebody or a class of people who have completed their sentence and they, they're out of sort of from under the threat of sanctions could then sue for rescission of these contracts and restitution to recover the money that they've paid.
Another thing that they could possibly do would be to use it as a defense when these companies are trying to collect debts from them. Of course, even if there isn't consideration, the courts could still apply equitable doctrines like promissory estoppel or quantitative meroit and find a reason to require the people to pay or to deny them full restitution.
But those doctrines, because they're equitable,
give courts more discretion to craft remedies. And so if you, if you're able to get this before a judge that sees the injustice in the practice, they could, they could grant relief in a way that would be harder to do, maybe if under other arguments.
Kyndall Walker: And now we actually have a set of questions that's going to essentially ask, if we change one thing to save IA from your critiques,
what changes would satisfy that IA contracting is not coercive and is better than the alternative, which is often incarceration.
So we'll begin the series of questions with Katherine.
Sadie Blanchard: Hi, Sadie. Thanks for being here with us today.
Many of your critiques of IA Contracting focus on lack of oversight and regulation.
Assume the government were able to effectively regulate IA firms. If this were the case,
if plea bargaining is accepted as a necessary evil, shouldn't IA contracting be seen the same way?
And if so, doesn't the problem with IA contracting lie more in our failure to regulate it than in the institution of IA Contracting itself?
Or do you think it's impossible for IA Contracting to exist in an acceptable form?
I would say that there,
I suppose, is an imaginary ideal world in which this might be so well regulated that it becomes acceptable.
I don't have a lot of confidence that oversight in this area is going to be effective. Because I don't think the political incentives are there or like not sort of in a sustainable way for officials to sort of consistently prioritize this and monitor what's happening.
The incentives, I would argue instead seem to be for governments and officials to show that they're tough on crime, to show that they're prioritizing public safety, to limit spending and to direct spending to services that, that, that voters sort of tangibly think of as making themselves better off.
So, so I just doubt that regulation is going to be effective in practice.
I also think I have a hard time with these questions of like, in an ideal world,
if the government were perfect, like what? Like, wouldn't this be okay? Because in an ideal world where the government was perfect, why would we need criminal law? Like, it's a kind of a.
If it, if we fix all the problems with human behavior within the government, why not also assume that we've resolved all the problems on behalf of the citizenry? So,
and then as for whether it's a necessary evil.
So I would say no. And I would just start by pointing out that I looked at 40 different legal frameworks and found that only 17 used this. So fewer than half used it at all.
And I was selecting for ones that I had some indication were doing it. So I was actually looking for it so that I could get more information about the varieties of regulation.
And even in that sample, once I dug into it,
fewer than half were using it. So I would say it's not a necessary evil. It's not necessary.
And states and local governments can already save a lot of money by moving from jailing people to putting them on these alternatives, even if the state funds them because they're cheaper than putting people in jail.
And states can already do that instead of forcing people to contract and pay. And some are doing it.
And so I guess more generally I, I don't see a structural, economic or political reason that it's necessary to keep shifting law enforcement to low level crimes and pushing more and more of the costs of it onto defendants.
And I would say it's not a necessary evil. Governments have to make priorities and they need to prioritize enforcement against the crimes that are most impacting public safety.
Kyndall Walker: Thank you for that. And we actually have a quick follow up on that conversation of how we change it to public funding from broadly.
Speaker D: Hi Sadie, thanks so much for being here.
So like Kendall was saying, my question is really about your idea of injecting public funding into this process.
So really I'm wondering if these IA contracts were Publicly funded, but still privately administered. Do you think that the fundamental coercion that you talk about in your piece would still persist or do you think that that would resolve kind of the key issue?
Sadie Blanchard: Yeah, so this is a good question also. I love all of your questions. Okay, so what if it were publicly funded? Does that resolve my problems with it? So I would say that most of the force of my argument would be lost because I really am focusing on the problems that arise when individual defendants are forced into these contracts.
There would still be arguments against it, people who, who are opposed to privatization or opposed to privatization of criminal enforcement.
Those arguments would still stand. But those aren't the arguments that I'm focused on here.
The coercion would still be there. Right. Anytime you're in a, in a criminal enforcement situation,
you're in a zone of very high coercion. The state has the power to do a lot of things to you, deprive you of life, liberty and property that it doesn't have the power to do in other contexts.
So the coercion is there.
Right. However it's structured. But the whole point is that when the state is in a zone where it's entitled to use high coercion, we also usually think we're in a zone where we have maximal procedural protections.
Right. So we're not trying to combine that with voluntary bargaining. That's a kind of libertarian regime that assumes people are acting voluntarily. That's just they don't go together.
So I can envision private providers that are publicly funded still finding ways to sort of push people into buying things from them. So you could imagine they're offering add ons or upgrades for sale.
And since the providers have discretion over the level of service they're providing, how they treat defendants,
and even whether to say, this person deserves to stay out of jail,
there's still that sort of possibility of a threat, an implied threat, or an explicit threat that if you don't like, buy the extra stuff, like something bad will happen to you.
And I think especially I would point out like that they have control over the background conditions and so they can make them worse and then offer something better. And this is what's happening in prisons today.
Even in public prisons,
the sort of baseline level of necessities that's offered to inmates is low.
And there are studies,
I would say, more investigations,
arguing that it's declining.
And the prisons are contracting with these private companies to provide services for sale to inmates. And that includes like commissary things they can buy from the store. Food upgrades and things like access to telephone.
And there, there, there are studies arguing, purporting to show that what's happened in prisons that have done this is that they've reduced the quality of meals and the calories that are being provided in the meals that the prison is giving, and that pushes people into buying food from the commissary.
Kyndall Walker: Thank you so much. So I'd actually like to switch gears and go to Mason's question, which will talk a little about potential litigation that might be going on around these issues.
Speaker D: Yeah. Hi. Thank you again for being here. So very early on in this episode, you mentioned that you do look at things like lawsuits and investigative reports and forming some of your opinions.
And in your paper you make the argument that the use of pre trial, self funded incarceration alternative programs are in violation of pay to stay jail policies.
If this is the case, has this issue been litigated or investigated? And what are courts saying about it? If they agree with you, why is this, this problem still so prevalent?
And if they disagree with you, how do you think that they're wrong?
Sadie Blanchard: Okay, so I,
what, what I would say is that the argument I make is a little bit different. So I,
I'm not arguing that the, that the programs, these pre trial self funded kind of ankle monitoring programs,
I'm not arguing they violate those laws.
What I'm arguing is that they undermine the purpose of the pay to stay laws. The pay to stay laws prohibit governments from requiring people to pay for their own pretrial detention or in some cases, to pay for their own imprisonment.
And those laws are designed to protect defendants from excessive fines and fees and from being assessed fines and fees before they're convicted of a crime.
And so these,
the IA programs, they don't violate those laws because they're not categorized as fines or fees, and they're not as a formal matter being imposed by the state.
And so actually that's part of their appeal to governments is that they don't violate the letter of the law, but they still allow the government to push the cost of enforcement onto defendants.
And I'm not aware of any litigation that alleges that the programs violate pay to stay laws.
Kim Krawiec: Sadie, as you know, I don't know anything about the Constitution. So that's what's prompting my question.
Do they not violate it? Because just nobody's raised this argument yet, or is it just obvious to somebody who understands that the existing precedent that this would not be violative of those principles?
Because I actually sort of thought this was an interesting argument you were making in the paper. But again, this is very far removed from my area of expertise.
Sadie Blanchard: Yeah, so the pay to stay laws are mostly sort of state laws that have been in.
Prevent people prevent.
In a. In a moment of.
Of virtue to try to protect people from being forced to bear the cost of their own imprisonment. And the way that those statutes are worded, it's about governments not charging people fees and fines.
And at least so far,
as far as I'm aware, and I have researched this, nobody's argued that just allowing a private provider to offer someone a contract.
Right. Which they voluntarily agree to,
is forcing people to bear the costs of that. It's actually pay to leave.
It's not pay to stay.
Kim Krawiec: Okay, I understand. Thank you for that clarifying.
Sadie Blanchard: Yeah. Excellent.
Kyndall Walker: So now we'll actually pivot to Rachel's question.
Sadie Blanchard: Hi, Sadie. Thanks for being here with us today.
So my question is that some defend IA contracts on rehabilitative grounds, arguing that they better allow participants to stay in the community, maintain employment, and access treatment.
How do you respond to the idea that even if I. Contracts are coercive, they generate better social outcomes than incarceration?
Yeah, so. So I. I would agree that alternatives to incarceration are.
Are better for defendants. And probably,
or I would say, arguably, I'm not as steeped in the social science literature that they are probably better for society as a whole,
but I would distinguish the alternatives from the alternative contracts. Right. And so I can say, yes, I agree that the alternatives benefit defendants. I can't say whether the contracts benefit defendants because I don't know what would happen if the contracts weren't allowed.
And so you've hit on the hard question of what happens in a counterfactual world in which these contracts are not allowed. Does it mean that the alternatives are no longer available,
or does it mean that the state pivots in some different way?
And I hope that a very smart quantitative empiricist figures out how to design a study that shows what governments do when they can't do this or when they choose not to do.
Would be really hard to design that study because there would be so many confounding variables that affect whether a government chooses to do this and at the same time, what they choose to do instead.
But I would love to see that.
But I argue there are reasons to think that if we move away from these contracts, it doesn't necessarily mean that the alternatives dry up or become unavailable. It might be that moving away from the contracts makes defendants better off because it's expensive to keep people in jail.
If governments are not allowed to do this or they choose not to do it, what they might do instead is reallocate their corrections budgets from prisons to these alternatives. That would allow the corrections budgets to go further.
Because these alternatives are cheaper,
they might make different enforcement priority choices and just arrest fewer people. People who are committing,
doing things that have been defined as being low level crimes or victimless crimes. They might just have to have to move away from enforcing those low level violations. And maybe what they do is arrest fewer people and put fewer people in jail.
So there are a lot of different things that could happen that would lead to the sort of social benefits that you refer to without making defendants pay for it.
Kyndall Walker: Awesome. And as we close out on our time together, we have one final question.
Speaker D: From Buddy I say a bit of this was answered in your response to Rachel, but in reading your piece, like, we understand what the preferred policy outcome of government funded and operated IAS is.
It's really a long term solution. Right? And given those political and financial realities and implementation costs,
what do you see as the short term move? Like what is the best path forward? What steps can we take immediately to combat some of these issues from IA contract?
Sadie Blanchard: Great.
Again, a really great question.
So I so I guess I would start by saying so I think you said publicly funded and publicly operated would be costly to move to and would take a long time.
I don't argue that we have to move all the way to publicly funded and publicly operated. The people who oppose privatization in general might have arguments against privately operated, publicly funded.
I don't think like that's necessarily bad.
And so,
and so I, I would, I would say that moving to a publicly funded, privately operated model like is probably an improvement over this.
And it's not obvious to me that that's all that costly to implement. And so I guess I wouldn't necessarily concede that it's just like a long term solution at best.
There's already an industry of firms that are providing these services.
Many governments that use the services,
probably even most do it by public like by directly contracting with the firms. And so the jurisdictions that are structuring this as defendant contracting would just have to move to a public procurement procurement model.
And I actually just don't know like what the politics are and the bureaucratic challenges are around that. And so like how hard it would be to do. I'd love to see more research on that one.
So I could imagine that there would be like some political challenges or some bureaucratic challenges One like,
maybe indication of this is Emma Kaufman has this wonderful article called the Prisoner Trade, which if you haven't had her on the show, this would be a great fit for the show.
Kim, it's about.
Kim Krawiec: Great, thanks.
Sadie Blanchard: It's about how states have developed like a trade in prisoners, so they like trade off their excess capacity and they use this to sort of optimize their labor and facilities costs.
And one of the things, Emma Kaufman.
Kim Krawiec: If you're listening, be on the lookout for a phone call from me.
Sadie Blanchard: And so it's fascinating. She describes in detail,
like how this trade was developed. But one of the barriers to it that sort of was a friction was opposition from the prison guard unions because it was lowering the demand for their work.
So you could imagine that those kinds of dynamics may be affecting the ability to move to privatization.
Another dynamic that I learned about from someone who used to be a Supreme Court justice, a state supreme court justice,
was about how different aspects of the criminal of corrections in that state state were the responsibility of the state government versus local governments. And so that affected to a significant extent, like sentencing.
So I think it was that the prisons were run by the state, but probation and parole was the responsibility of local governments. And so there would be like fighting about who was going to be responsible for the cost of a given sentence.
So you have those kinds of things that could make this hard to do. Okay, so that said,
you asked, like I sort of catalog all these things you could do to try to make this better.
And I would say that out of the. The different proposals I suggest,
regulatory reforms, as I sort of said earlier, strike me as the least likely,
like one to happen or two to actually help because there's the law on the books and there's the law in practice. And I don't have a lot of confidence that there's really like the political will to.
To. To do this. Well,
in the reform movements of the government for profit practice and the peonage victories in court mostly preceded legislative victories. Right. So it was more like some momentum was being built through litigation before laws were passed to sort of like make major structural changes.
And so I could imagine that things would be similar in this case.
One legislative change that might be easier and might be feasible to make quickly is to. Is for the states to pass laws that make these companies subject to the sunshine Statutes.
You'll see in some of the reporting that officials actually say that an advantage of doing things this way is that the companies are not subject to the sunshine Statute. So they can like hide what they're doing so.
So I would say like, like, let's make them subject to the sunshine laws so researchers can see what they're doing and advocates can see what they're doing.
So common law solutions,
I would argue the sort of arguments that I say people could make in court and judicial oversight during criminal proceedings could be implemented immediately by individual judges.
Judges are already presiding over these criminal cases and they could do more to scrutinize the contracts.
Public interest lawyers could pursue the common law challenges that I, that I suggest are viable.
There are some active lawsuits against these practices, but they involve constitutional law challenging and con law challenges like civil rights law challenges. And I think that's like, partly because of the kind of structure of public interest law practice.
It does tend to be very public law focused and not very private law focused.
I've spoken with one law school clinic with a private law focus that's sort of interesting, interested in the possibility of doing these claims and whether it might be viable.
One difficulty is that unlike in civil rights suits against governments, there isn't a sort of clear and definite legal basis for, to get attorneys fees if you win these suits.
And so that makes them more expensive to bring even for, you know, for nonprofits because, you know, they do have to cover their costs.
So I guess maybe it shows what a lawyer I am that I, I think that courts are the, are the first,
best approach I would focus there to start.
Kim Krawiec: Thank you so much, Sadie. We are out of time, but this has been a lot of fun and I learned a lot. I'm sure I, I'm sure everyone else did too.
Kendyl, any last thoughts from you?
Kyndall Walker: I just wanted to say thank you so much again, Sadie, for your time. All of your insights were so, so helpful. Thank you.
Sadie Blanchard: Thank you all for your wonderful questions. I enjoyed this so much and it really forced me to think more deeply about my arguments and what to do next.
Kim Krawiec: They have that tendency, trust me, I have to deal with it every week. I meant that as a compliment, guys. Okay, thanks, Sadie. This was fun.
Sadie Blanchard: Thank you. Bye. Bye.
