Taboo Trades Crossover Episode: Contracts and Criminal Law

Kim Krawiec, host of the Taboo Trades podcast, is not afraid of transgressing boundaries. It’s her brand. Kim focuses, as she says on the pod, “on things we aren’t supposed to sell but do anyway.” Her guest on a recent episode, Notre Dame Contracts Prof Sadie Blanchard (below), takes the podcast in a new direction, focusing on Incarceration Alternative arrangements, or IA contracts, in her new article, Contract or Prison, in the University of Chicago Law Review.

IA contracts are offender-funded schemes involving electronic monitoring, criminal diversion, parole, and probation. Criminal defendants might agree to an IA contract after conviction as part of a plea deal or they may agree to it in advance of a plea deal. Professor Blanchard makes the case for why such IA contracts may be unenforceable, either because they lack consideration or because they are coercive.

The argument based on lack of consideration is weak but available because some courts have denied defendants’ claims against the private companies that are their counterparties in these agreements because the counterparties provide no consideration to the criminal defendants. The private companies perform services for the state, so the argument goes, not to benefit the defendants. I’m not sure why a third-party beneficiary argument would not give the defendants standing to sue. See, e.g., Reed v. City of Chicago. But you can’t blame Professor Blanchard for seeking to use precedent to her advantage.

Professor Krawiec pushes back on the podcast on Professor Blanchard’s coercion argument. After all, the criminal suspects receive a benefit in exchange for entering into the IA agreements. The agreements do not seem to be coercive in that they give the suspects options for avoiding prison that would not be available in their absence. It is a critique to which Professor Blanchard’s work is vulnerable, but I think the response is that those alternatives to prison are available without IA agreements. The difference is that the usual expectation is that the government, rather than the suspects, will cover the costs of alternatives to incarceration. The coercive nature of the IA agreements becomes clearer when one recognizes that the government benefits from alternatives to incarceration, which are less costly than imprisonment. The criminal suspects receive no added benefits from having to pay for IA Agreements that governments have traditionally funded.

In addition, Professor Blanchard’s article includes an extensive discussion of historical analogues in which the government tried to push public costs onto a suspect class, including convicted felons. That history is not appealing. While Professor Blanchard is not arguing that IA agreements are the same as racial peonage, the analogy serves as a reminder that such schemes have disparate impacts that map pretty closely onto and exacerbate our pre-existing socio-economic and racial divisions.

As usual, Professor Krawiec’s UVA students came with their own questions for Professor Blanchard. The questions were probing and well-presented, so impressive performances all around.