Volume 33, Issue 1

There is plenty of conversation about how to reduce state prison populations, but what almost no one talks about is this: states are under no obligation to provide prisons, nor are they obliged to pay for the costs associated with prison sentences.  Perhaps this silence comes from an assumption that state governments have always paid for prison, but, as this Article reveals, this conventional wisdom is wrong.  In fact, states neither built prisons nor paid for incarceration until the middle of the 19th century. The decisions of local officials drive prison admissions—via arresting, charging, and sentencing—but given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations.  This Article suggests that since state prison subsidies may not be desirable and are certainly not inevitable, it may be time for states to reconsider paying for prisons.

“The most familiar doctrine in administrative law is Chevron deference: When Congress leaves an ambiguous gap in a piece of legislation, the regulations that fill it “are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”  Less well known is the deference that applies to agencies’ interpretations of their own regulations. This doctrine, known alternately as Auer deference or Seminole Rock deference,  gives an agency’s interpretation ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’  Auer is important. For now, the doctrine still sits in Chevron’s shadow, but it presents issues that, in the words of Chief Justice Roberts, go ‘to the heart of administrative law’ and ‘arise as a matter of course on a regular basis.’” 

“The Securities and Exchange Commission (SEC) has been very busy for the last few years. In the wake of the 2007-2008 financial crisis, the agency scaled up enforcement efforts by increasing the number of individual enforcement actions,  requesting that Congress authorize larger civil penalties than are currently permitted,  and securing some of the largest settlements in the agency’s history.  The specific transactions targeted by the SEC are feared to be part of a broader trend in the financial industry toward behavior that prioritizes profit over integrity, potentially imperiling individual market actors and overall economic stability.