Constitutional Law Article 133 Harv. L. Rev. 1815

The Prisoner Trade


It is tempting to assume that the United States has fifty distinct state prison systems. For a time, that assumption was correct. In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors. Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines.

Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform. Yet apart from prisoners and their families, few people know that prisoners can be shipped between states. Because information on prisoners is so hard to obtain, scholars, lawyers, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held.

Drawing on a wide range of primary sources, including data uncovered through open records requests to all fifty states, this Article offers the first comprehensive account of the prisoner trade. It demonstrates that states have far more authority than one might expect to share and sell prisoners. It reveals that certain states rely on transfers to offset the actual and political costs of their prosecution policies. And it critiques the pathologies of interstate punishment, arguing that courts should require consent before a prisoner can be sent outside the polity whose laws he has transgressed.


* Assistant Professor of Law, New York University School of Law. For generous exchanges about this project, thanks to Rachel Barkow, Will Baude, Monica Bell, Sharon Dolovich, Justin Driver, Bonnie Ernst, Barry Friedman, Brian Gardiner, Andrew Hammond, Don Herzog, Stephanie Holmes Didwania, Dan Hulsebosch, Lucy Kaufman, Genevieve Lakier, Ben Levin, Daryl Levinson, Matt Lockwood, Richard McAdams, Erin Murphy, Shaun Ossei-Owusu, Rick Pildes, John Rappaport, Adam Samaha, Margo Schlanger, Steve Schulhofer, Cathy Sharkey, David Sklansky, and participants in the UCLA Law School Prison Scholarship Roundtable, the Colorado Junior Criminal Law Workshop, the Law and Society Association Conference, the Columbia Twentieth Century Politics and Society Workshop, and faculty workshops at Stanford and New York University Law Schools. Whittney Barth, Simon de Carvalho, Joby Celoza, and Urvashi Malhotra provided excellent research assistance. I am grateful for Eric Gardiner and indebted to the incisive editors at the Harvard Law Review. I also owe thanks to the practitioners and prison officials who agreed to speak with me about America’s prisoner trade. This piece is dedicated to Jim Jacobs, whose work led the way.