VOLUME 133

APRIL 2020

NUMBER 6

© 2020 by The Harvard Law Review Association

ARTICLES
THE PRISONER TRADE
Emma Kaufman

CONTENTS
INTRODUCTION .......................................................................................................................... 1817
I. BUILDING THE AMERICAN PENAL ESTATE .................................................................... 1822
A. The Rise of Regional Prison Governance .................................................................... 1822
B. The Law of Prison Transfers ......................................................................................... 1830
II. THE PRISON NETWORK ...................................................................................................... 1838
A. State Sunshine Statutes ................................................................................................ 1839
B. Interstate Prison Pathways .......................................................................................... 1842
C. Rationales for Prisoner Transportation ....................................................................... 1848
III. REGULATING THE PRISONER TRADE ........................................................................... 1855
A. The Harms ....................................................................................................................... 1856
B. The Benefits .................................................................................................................... 1866
C. Outsourcing the Power to Punish ................................................................................ 1869
D. Consent as a Cure .......................................................................................................... 1873
CONCLUSION ............................................................................................................................... 1878
APPENDIX ..................................................................................................................................... 1879

1815

Electronic copy available at: https://ssrn.com/abstract=3576088

THE PRISONER TRADE
Emma Kaufman*
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.

1816

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1817

INTRODUCTION
[I]t is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was
convicted . . . . Even when, as here, the transfer involves long distances
and an ocean crossing, the confinement remains within constitutional
limits.
— Olim v. Wakinekona, 461 U.S. 238, 247 (1983)
To remain in West Virginia, even to complain and be difficult, is that
prisoner’s constitutional right.
— Ray v. McCoy, 321 S.E.2d 90, 92 (W. Va. 1984)

I

magine two people convicted of the same crime in Manchester,
Vermont. Both are sent to prison for twenty years and begin their
sentences at Granite Correctional Facility, a medium-sized prison about
an hour from home. By prison standards, the conditions at Granite are
relatively good. The prisoners receive weekly visits from their families
and have little trouble getting mail and basic healthcare. They call
home each morning and enroll in a job-training program that will earn
them up to four years off their sentences.1
A year later, when the prison’s population swells, a correctional
administrator picks up the phone to call her counterpart at Hancock
Correctional Center in Nevada. Hancock is a remote prison with few
programs and a history of violence.2 Lockdowns are common, and the
prison’s warden has been enjoined for failing to provide adequate
healthcare. As it turns out, Hancock has extra beds. So the bureaucrats
agree to a trade: twenty Vermont prisoners in exchange for $76 per
person, per day.3 After several weeks, one of the Vermont prisoners is
placed on a bus to Hancock, where he lives — 2775 miles from home —
for the next nineteen years. The other prisoner serves fifteen years in
Vermont.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 See VT. STAT. ANN. tit. 28, § 818 (2019) (directing the Vermont Department of Corrections to
implement a “good time” program under which prisoners can receive sentence reductions for good
behavior and “meet[ing] milestones . . . that prepare offenders for reentry”); see also PRISON
FELLOWSHIP, EARNED AND GOOD TIME POLICIES: COMPARING MAXIMUM REDUCTIONS
AVAILABLE
(2018),
https://www.prisonfellowship.org/wp-content/uploads/2018/04/GoodTimeChartUS_Apr27_v7.pdf [https://perma.cc/J4UV-ZPHH] (surveying good-time laws in all fifty
states).
2 As in the previous paragraph, these are hypothetical claims about fictional prisons, intended
to illuminate the stakes of prison transfers.
3 This was the price quoted by a California prison official describing interstate contracts for
that state. Telephone Interview with J.W. Moss, Contract Beds Unit Chief, Cal. Dep’t of Corr. &
Rehab. (Feb. 6, 2019).

Electronic copy available at: https://ssrn.com/abstract=3576088

1818

HARVARD LAW REVIEW

[Vol. 133:1815

Nothing about this story is unlawful. Under current doctrine, prisoners have no right to be incarcerated in the state where they were convicted,4 and states may trade prisoners — either for money or for other
prisoners — when they wish. In practice, most states export a small
percentage of their total prison population.5 Some states, however, rely
on the prisoner trade. Vermont outsources a sixth of its prison population, and Hawaii houses close to half of its prisoners on the mainland.6
At various points in the last decade, Wyoming exported a third of its
prison population, and California shipped roughly 10,000 prisoners to
other states.7 Until last year, La Palma Correctional Facility, a private
prison in Arizona, held only people serving California time.8
Out-of-state imprisonment is relatively new. Exporting prisoners
was illegal in many states until the mid-twentieth century and was
uncommon everywhere until states built the infrastructure required to
move and monitor prisoners. Then states started to share prison beds,
to swap prisoners, and to pay private companies to hold prisoners across
state lines. Slowly, state borders grew less salient to the practice of
punishment.
The expansion of interstate punishment raises urgent questions
about the scope of states’ authority to incarcerate and the allocation of
responsibility when punishment goes wrong. Interstate prison transfers
create serious, unresolved legal conflicts about parole eligibility, habeas
relief, and § 1983 liability. They unsettle basic assumptions about the
purpose and limits of criminal law. Transfers also prompt deep normative debates about the government’s authority to confine people in penal
institutions. If the power to imprison arises from a social contract between members of a bounded political community, why is extraterritorial punishment ever permissible? Alternatively, if punishment can be
outsourced, why not transfer prisoners more? Could states send all their
prisoners to the cheapest prison system? Could one state — say Alaska
or Mississippi — become a penal colony for the rest of the country?
Scholars have yet to ask these questions. Perhaps because information on prisoners is so hard to obtain, legal academics have not explored the conceptual and practical problems posed by the unrestricted
movement of prisoners within the United States.9 As a result, scholars,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
4
5
6
7
8
9

Olim v. Wakinekona, 461 U.S. 238, 248 (1983).
See infra Appendix, tbl.1.
See id.
See infra pp. 1843, 1853–54.
See infra note 138 and accompanying text.
There is almost no academic scholarship on prison transfers. One exception is Professor
Benjamin Levin’s 2014 article on the exchange of prisoners between Belgium and the Netherlands,
which examines the implications of European prisoner exchanges for selling prisoners’ labor within
the United States. Benjamin Levin, Inmates for Rent, Sovereignty for Sale: The Global Prison
Market, 23 S. CAL. INTERDISC. L.J. 509 (2014). There is also a limited but illuminating body of

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1819

practitioners, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held. This is alarming in
a system where people are confined for years or decades at a time.10
This Article presents the first comprehensive study of the American
prisoner trade. Building from legal sources including cases, contracts,
handbooks, and internal agency documents, from firsthand accounts offered in interviews with prison officials, and from data obtained through
open records requests (and follow-up requests) to all fifty states, the
piece advances three claims.
The first is historical: in the last half-century, courts and prison officials have deterritorialized punishment. Interstate transfers represent a
stark departure from the territoriality norm in American criminal law.11
Since the birth of the modern penal institution, state prison systems have
been tied to state borders and justified by reference to state criminal
law. Indeed, when they drafted their constitutions, many states banned
out-of-state confinement for state crimes. This presumption against extraterritorial punishment began to recede as the administrative state expanded and the penal bureaucracy professionalized. It disappeared
with mass incarceration, which left many prisons bursting at the seams.
By the end of the twentieth century, almost every state had agreed to
share prison space and the Supreme Court had upheld the constitutionality of interstate confinement. Today, as a matter of law, state prisoners
may be traded at will.
In practice, however, only some states have embraced transfers. The
Article’s second claim is empirical: most states trade less than three percent of their prisoners,12 and in the last several years the total number
of exported prisoners has ranged from 10,000 to 20,000.13 This number
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
writing on domestic prison transfers by advocacy groups and government agencies. See, e.g.,
HOLLY KIRBY, GRASSROOTS LEADERSHIP, LOCKED UP & SHIPPED AWAY: INTERSTATE
PRISONER TRANSFERS AND THE PRIVATE PRISON INDUSTRY (2013); NAT’L INST. OF CORR.,
U.S. DEP’T OF JUSTICE, INTERSTATE TRANSFER OF PRISON INMATES IN THE UNITED
STATES (2006).
10 As of March 2019, there were roughly 2.3 million people in a range of American custodial
institutions, including prisons, jails, immigration detention centers, and civil commitment centers.
Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2019, PRISON POL’Y
INITIATIVE (Mar. 19, 2019), https://www.prisonpolicy.org/reports/pie2019.html [https://
perma.cc/4B8Y-RCZN]. Approximately 1.3 million of those people were in state prisons. Id.
11 See Lucia Zedner, Is the Criminal Law Only for Citizens? A Problem at the Borders of
Punishment, in THE BORDERS OF PUNISHMENT 40, 46 (Katja Franko Aas & Mary Bosworth
eds., 2013) (“In . . . classical accounts of the power of the sovereign . . . the scope of domestic criminal law is also clearly bounded. It extends only to the borders of the sovereign realm . . . — the socalled ‘principle of territoriality.’”).
12 See infra p. 1842. By contrast, the West Virginia Supreme Court of Appeals has concluded
that out-of-state punishment violates a constitutional prohibition on banishment. Ray v. McCoy,
321 S.E.2d 90, 91 (W. Va. 1984).
13 See Emma Kaufman, Compiled State-Level Data on Interstate Transfers [hereinafter FOIA
Data] (on file with author); infra pp. 1853–54.

Electronic copy available at: https://ssrn.com/abstract=3576088

1820

HARVARD LAW REVIEW

[Vol. 133:1815

is small relative to the country’s staggering prison population.14 But
certain states — notably, those facing budget and crowding crises — rely
on mass transfers to run their prison systems. In the places where transfers are concentrated, outsourcing prisoners is a way to displace the actual and political costs of incarceration when states cannot afford to pay
prison officers, provide constitutionally adequate prison conditions, or
convince lawmakers to build the number of prisons the state’s prosecution and sentencing policies demand. Transfers, in other words, are a
safety valve when states incarcerate more people than they are willing
or able to confine.
The Article’s third, most normative claim is that courts ought to regulate the prisoner trade. Interstate transfers impose serious harms.
They limit prisoners’ access to courts and family, create perverse incentives to incarcerate, and aggravate the concern that America’s reliance
on prisons is unsustainable and unjust. At the same time, transfers can
have real benefits. As this Article uncovers, prison officials trade prisoners not just to expand prison capacity and avoid the costs of incarceration but also to protect prisoners and provide them with healthcare.
The United States delivers a wide array of social services through its
prisons, and transfers facilitate more efficient service delivery. In this
respect, interstate prison governance allows penal institutions to serve a
critical welfare function.
Transfers thus have nuanced consequences for prisoners and societies
that depend on imprisonment. This system demands a rule on when
trade is permissible. But courts leave the enforcement of criminal sentences to prison administrators, who determine prison placements with
almost complete freedom and no oversight. In practice, those administrators make ad hoc decisions that both under- and overuse the interstate transfer system. This Article critiques that approach and proposes
an alternative: a transfer regime based on consent. Such a regime would
permit cooperative governance while curbing the more troubling aspects
of cross-border confinement.
The Article develops these claims in three Parts. Part I documents
the evolution of America’s prison network from its creation in the early
part of the twentieth century through its expansion at the turn of the
twenty-first. Part II describes the current transfer regime. This Part
introduces previously undisclosed data on prison transfers, surveys the
varied rationales for moving prisoners, and explores how states use
transfers to resolve political disputes over corrections budgets and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
14 See Sawyer & Wagner, supra note 10 (calculating that 1.3 million people live in state prisons).
Note that this number is driven by certain high-incarceration states. In 2017, thirty states had
fewer than 20,000 prisoners in their entire prison population, while only five states — California,
Florida, Georgia, Ohio, and Texas — incarcerated more than 50,000 people. JENNIFER BRONSON
& E. ANN CARSON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS
IN 2017, at 4–5 tbl.2 (2019), https://www.bjs.gov/content/pub/pdf/p17.pdf [https://perma.cc/GF8662RN].

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1821

prison construction. Part III maps the normative stakes of prison transfers and defends the consent requirement as an imperfect but workable
solution to the pathologies of the prisoner trade.
This account sharpens critiques of the criminal justice system in
several ways. The history of prison transfers contextualizes prison privatization, which is often presented as a unique or new phenomenon.
As this Article shows, privatization is only one species of punishment
outsourcing. Moreover, while private corporations have exacerbated the
dislocation of punishment, they did not invent it. Instead, it was public
administrators who pioneered extraterritorial incarceration, paving the
way for private companies to build prisons in cheap locations and import prisoners from across the country. This Article connects private
prisons to their origins in Progressive Era penal policy.
This study also reorients debates about American penality. The
states most often cited in discussions of American imprisonment are
those with the biggest, harshest systems and the highest incarceration
rates — states like Texas, California, Louisiana, and Alabama.15 While
these states are a key part of the country’s penal culture, this Article
focuses on a more unlikely set of protagonists: West Virginia, the only
state in the nation that still prohibits interstate transfers, and Hawaii
and Vermont, left-leaning states that export a significant percentage of
their prisoners. Perhaps because transfers are rare at the national scale,
or perhaps because they take place in near-total obscurity, scholars have
overlooked how transfers function in these states.
Yet, as this Article demonstrates, West Virginia has a protective theory of prisoners’ rights, and some blue states with reputations for lenient
penal policies overincarcerate and then ship prisoners thousands of
miles away. These stories reveal the counterintuitive politics of punishment. They also suggest that the problems with American imprisonment are deeper and less obvious than they can seem from reports on
the most high-profile state systems.
This observation, in turn, is a lesson for prison reform. In recent
years, debates about how to improve prisons have often focused on
measures such as reinvesting state funds, increasing state budgets,
closing state prisons, or electing different prosecutors. Given the ease
with which states can outsource punishment, these reforms may matter
less than one would hope. As the prisoner trade makes plain, taming
America’s prisons will have to be a durable, national project.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
15 See, e.g., ROBERT PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA’S PRISON
EMPIRE (2010); KERAMET REITER, 23/7: PELICAN BAY PRISON AND THE RISE OF LONGTERM SOLITARY CONFINEMENT (2016); Casey Leins, 10 States with the Highest Incarceration
Rates, U.S. NEWS & WORLD REP. (May 28, 2019, 8:00 AM), https://www.usnews.com/news/
best-states/slideshows/10-states-with-the-highest-incarceration-rates?slide=11
[https://perma.cc/
x8y2-r27y]; Alabama’s Prisons Are Deadliest in the Nation, EQUAL JUST. INITIATIVE (Dec. 3,
2018),
https://eji.org/news/alabamas-prisons-are-deadliest-in-nation
[https://perma.cc/BY7G4EPC].

Electronic copy available at: https://ssrn.com/abstract=3576088

1822

HARVARD LAW REVIEW

[Vol. 133:1815

I. BUILDING THE AMERICAN PENAL ESTATE
Interstate punishment was not inevitable. It was the product of tremendous effort by prison officials, state governments, and federal courts.
This Part documents the development of the American penal estate. It
explores why states originally objected to out-of-state punishment and
how those objections faded in the Progressive Era. It then describes
early efforts to trade “problem” prisoners — specifically women — that,
over time, laid the groundwork for a larger system of prisoner trade.
Finally, Part I turns to courts to examine when it became legal to ship
prisoners across state lines.
This is a story of bureaucratic and doctrinal innovation. State prison
officials connected their penal systems through commissions, conventions, compacts, contracts, computer databases, and prison policies.
When prisoners challenged their transfers, courts cited this infrastructure as evidence that prisoners had no reasonable expectation — and no
right — to be held close to home. Prison officials thus invented interstate prison governance well before courts ratified the practice. Between
1920 and 1970, bureaucrats built an interstate prison network. Courts
then created the doctrine to enable it.
A. The Rise of Regional Prison Governance
Transportation has long been a basic feature of imprisonment. In
the eighteenth century, the British government shipped roughly
50,000 convicts to American colonies under contracts of indentured servitude that typically lasted seven years.16 After Reconstruction, convict
leasing — the sale of prisoners’ unpaid labor to private parties such as
mining and railroad companies — spread across the South.17 Forced
mobility is a familiar tool of punishment in the United States.
Since the late nineteenth century, however, American prison systems
have lived within state lines.18 This phenomenon is an outgrowth of the
territorial, state-based nature of American criminal law. Although the

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
16 See REBECCA M. MCLENNAN, THE CRISIS OF IMPRISONMENT 27–29 (2008); Bruce
Kercher, Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850,
21 LAW & HIST. REV. 527, 527 (2003); cf. A. Roger Ekirch, Great Britain’s Secret Convict Trade to
America, 1783–1784, 89 AM. HIST. REV. 1285 (1984) (noting that the British government continued
to impose sentences of transportation even after the Revolutionary War largely halted transportation to the United States).
17 See DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME 54–57 (2008); ALEX
LICHTENSTEIN, TWICE THE WORK OF FREE LABOR 2 (1996); MCLENNAN, supra note 16, at
87, 102.
18 See generally David J. Rothman, Perfecting the Prison: United States, 1789–1865, in THE
OXFORD HISTORY OF THE PRISON 111, 119–20 (Norval Morris & David J. Rothman eds., 1995)
(discussing the creation and expansion of the modern prison system in the United States).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1823

federal government has long been involved in the enforcement of criminal laws,19 most of the action in the American criminal legal system
unfolds within state borders. State codes define the vast majority of
crimes that send people to prison;20 state prisons predate both federal
prisons and federal criminal law;21 and nearly ninety percent of the people currently imprisoned in the United States live in state and local penal
institutions.22
Indeed, for a period in American history, it was illegal to ship prisoners out of state. During and after the American Revolution, politicians including Thomas Jefferson, Benjamin Rush, and Benjamin
Franklin assailed the harsh penal practices they associated with the
British Crown.23 The Founders railed against “monarchical” sanctions
such as transportation and corporal punishment, which they saw as “the
native weapons of kings and despots.”24 In the process, they began to
develop an alternative “positive republican theory of crime” based on
the penitentiary.25 In this new theory, criminals would be confined in a
local prison, transformed through solitude or labor, and then returned
to the polity.26
As this philosophy of punishment took root, a number of states codified their opposition to transportation in state constitutional provisions
barring out-of-state confinement for state crimes.27 Between 1776 and
1845, eleven states enacted constitutional bans or limits on criminal
sanctions involving forced mobility.28 Ohio’s first constitution, for example, provided that no person may “be transported out of this state for
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
19 See Daniel Richman & Sarah A. Seo, How Federalism Built the FBI (2020) (unpublished
manuscript) (on file with the Harvard Law School Library) (tracing the birth and expansion of the
federal law enforcement apparatus).
20 Sawyer & Wagner, supra note 10 (noting that eighty-nine percent of all convicted prisoners
are held in state prisons and local jails for violations of state criminal laws).
21 See Act of Mar. 3, 1891, ch. 529, 26 Stat. 839 (authorizing the purchase of land for America’s
first federal prison in 1891); see also PAUL W. KEVE, PRISONS AND THE AMERICAN
CONSCIENCE 13 (1991); Richman & Seo, supra note 19, at 5 (noting that there were few federal
criminal laws other than piracy, counterfeiting, and treason statutes before the twentieth century).
22 See Sawyer & Wagner, supra note 10.
23 MCLENNAN, supra note 16, at 19.
24 Id. at 19; see id. at 27, 31.
25 Id. at 19.
26 Id. at 38.
27 See, e.g., Sayles v. Thompson, 457 N.E.2d 440, 443 (Ill. 1983) (describing the transportation
clause in Illinois’s state constitution as reflecting “historical animosity” toward convict transportation by the British); see also Benjamin Franklin, Felons and Rattlesnakes, PA. GAZETTE, May 9,
1751, https://founders.archives.gov/documents/Franklin/01-04-02-0040 [https://perma.cc/XWM8HZFH] (objecting to the practice of convict transportation and threatening to send England rattlesnakes in return).
28 For bans, see ALA. CONST. of 1819, art. I, § 27; ; MISS. CONST. of 1817, art. I, § 27; OHIO
CONST. of 1802, art. VIII, § 17; VT. CONST. ch. 1, art. XXI. For limits, see ARK. CONST. of 1836,
art. II, § 10; FLA. CONST. of 1838, art. 1, § 8; ILL. CONST. of 1818, art. VIII, § 8; N.C. CONST. of

Electronic copy available at: https://ssrn.com/abstract=3576088

1824

HARVARD LAW REVIEW

[Vol. 133:1815

any offense committed within the state,”29 while early constitutions in
Mississippi and Alabama prohibited the practice of “exile[].”30
Constitutions amended or enacted after the Civil War contain similar
prohibitions. The Reconstruction Era witnessed a burst of energetic (if
short-lived) prison reform in which states sought to curb the sale of
prison labor and remake prisons as sites of discipline and education.31
Transportation bans resurfaced in this period, often in constitutional
provisions prohibiting cruel and unusual punishment.32 West Virginia’s
analogue to the federal Eighth Amendment states that “[n]o person shall
be transported out of, or forced to leave the State, for any offense committed within the same.”33 Arkansas amended its constitution in 1874
to make its limit on transportation a prohibition, clarifying that “[no]
person, under any circumstances, [may] be exiled from the state.”34
Three years later, Georgia added a provision to its constitution barring
“banishment beyond the limits of the State” as punishment for a crime.35
By 1907, at least sixteen state constitutions included a transportation
clause.36
It is difficult to determine exactly what sort of punishment these
measures prohibited. The text of transportation clauses leaves unclear
whether state constitutions proscribe only formal banishment — that is,
punishing a person by requiring him to leave the state in lieu of some
other criminal sanction — or also encompass forms of banishment incidental to punishment, such as shipping prisoners to states with less
crowded prison systems.37 At least initially, courts did not have to answer that question because imprisonment rates were low and interstate
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1776, art. I, § 12; S.C. CONST. of 1778, art. XLI; TENN. CONST. of 1796, art. XI, § 8; TEX. CONST.
of 1845, art. I, § 16.
29 OHIO CONST. of 1802, art. VIII, § 17.
30 ALA. CONST. of 1819, art. I, § 27; MISS. CONST. of 1817, art. I, § 27.
31 MCLENNAN, supra note 16, at 90–95 (describing Reconstruction-era efforts to “rein in the
contract prison labor system,” id. at 90, and introduce “religious instruction, education, a merit
mark system, [and] a conduct-based system of probation,” id. at 93, into prison administration).
As Professor Rebecca McLennan explains, Reconstruction-era prison reformers, much like the
Founders, “sought the overthrow of a ‘tyrannical’ system of punishment and the creation of a
properly ‘republican’ penal institution.” Id. at 97.
32 See, e.g., W. VA. CONST. art. III, § 5.
33 Id.
34 ARK. CONST. art. II, § 21.
35 GA. CONST. OF 1877, art. I, § 1, para. VII; see also SAMUEL W. SMALL, A STENOGRAPHIC
REPORT OF THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION HELD IN
ATLANTA, GEORGIA, 1877, at 91 (1877) (debating the new banishment prohibition).
36 ALA. CONST. art. I, § 30; ARK. CONST. art. II, § 21; GA. CONST. of 1877, art. I, § 1, para.
VII; ILL. CONST. of 1870, art. II, § 11; KAN. CONST. Bill of Rights, § 12 (amended 1974); NEB.
CONST. art. I, § 15; OHIO CONST. art. I, § 12; OKLA. CONST. art. II, § 29; TEX. CONST. art. I,
§ 20; VT. CONST. ch. I, art. XXI; W. VA. CONST. art. III, § 5; see supra note 28 and accompanying
text.
37 Compare Sayles v. Thompson, 457 N.E.2d 440, 442 (Ill. 1983) (“The language of the [Illinois
transportation] clause . . . prohibits prisoner transportation only when such transportation is for the

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1825

transfers were rare.38 Whether or not it was legal, sending prisoners to
another state’s penal system was cumbersome and expensive. In the
late 1800s, states lacked centralized police forces and prisoner databases,
not to mention the network of automobiles and highways required to
ferry prisoners from state to state.39 These practical barriers prevented
interstate coordination and, by extension, interstate prisoner trade.40
Prison governance grew more cooperative as prison administrators
professionalized and developed methods to document the prison population. In 1870, Enoch Cobb Wines, a prison reformer from New York,
founded the country’s first association of prison administrators.41 Ten
years later, his son Frederick led the first effort to count “all prison inhabitants” in “every state or local prison, penitentiary, reformatory,
workhouse and jail.”42 Congress accelerated that effort in 1902 when it
established a permanent Census Bureau and instructed its Director to
collect prisoner statistics.43 Soon, prison officials began to serve as census enumerators, and the Institutional Population Report — a detailed

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
commission of an offense.”), with id. at 445 (Clark, J., dissenting) (“The transportation clause clearly
does not state, as the majority suggests, that a person shall not be transported out of the State for
an offense committed within the State only if it constitutes cruel and unusual punishment.”).
38 Cf. id. at 442–43 (majority opinion) (considering whether the state’s transportation ban applied to interstate prison transfers for the first time in 1983).
39 See MARGARET WERNER CAHALAN, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, UNITED STATES HISTORICAL CORRECTIONS STATISTICS: 1850–1984, at I-1 to I3 (1986) (describing early, piecemeal efforts to collect statistics on prisoners between 1880 and 1904);
DAVID M. HUDAK & RICHARD D. ENGLER, NAT’L SHERIFF’S ASS’N, RESEARCH STUDY
NUMBER 2.2: COSTS OF INTERSTATE PRISONER TRANSPORTS 12 (1977) (discussing impediments to cooperation between state prison officials and noting that even the “information technology of the 1950s was simply not equal to the task of supporting” an interstate prisoner transfer
system); Richman & Seo, supra note 19, at 6 (observing that many states lacked their own police
forces into the twentieth century).
40 This claim refers to interstate transfers between prison systems. As noted above, convict
leasing was a vast regime of prisoner trade. See BLACKMON, supra note 17, at 54–57.
41 John Wooldredge, American Correctional Association, in ENCYCLOPEDIA OF AMERICAN
PRISONS 27, 27 (Marilyn D. McShane & Frank P. Williams eds., 1996). The National Prison
Association would later become the American Correctional Association (ACA), an independent accrediting body that functions as “the closest thing [the United States has] to a national regulatory
body for prisons.” Shane Bauer, My Four Months as a Private Prison Guard, MOTHER JONES
(July/Aug. 2016), https://www.motherjones.com/politics/2016/06/cca-private-prisons-correctionscorporation-inmates-investigation-bauer [https://perma.cc/EH8H-7ZQY]; see also About Us, AM.
CORRECTIONAL
ASS’N,
http://www.aca.org/ACA_Prod_IMIS/ACA_Member/About_Us/
Our_History/ACA_Member/AboutUs/AboutUs_Home.aspx [https://perma.cc/D8YW-7YS6].
42 CAHALAN, supra note 39, at I-2; see also F.H. WINES, REFORMATION AS AN END IN
PRISON DISCIPLINE (1888), https://socialwelfare.library.vcu.edu/corrections/corrections-part-ivreformation-as-an-end-in-prison-discipline [https://perma.cc/ZNE2-Z4YA].
43 Act of Mar. 6, 1902, Pub. L. No. 57-27, 32 Stat. 51 (codified as amended in scattered sections
of 13 U.S.C.).

Electronic copy available at: https://ssrn.com/abstract=3576088

1826

HARVARD LAW REVIEW

[Vol. 133:1815

tally of prisoners that was a prerequisite for systematic informationsharing between correctional administrators — was born.44
Cooperation between law enforcers picked up pace outside prisons
as well. The invention of mass-produced automobiles in the early twentieth century led to “unprecedented mobility” and with it to pervasive
social anxiety about interstate crime.45 The result was a national movement to streamline policing by documenting and sharing information.46
During this period, politicians, progressive reformers, and law enforcement officials hailed uniform laws as a solution to the coordination problems presented by interstate criminal activity. In 1916, the National
Conference of Commissioners on Uniform State Laws (NCCUSL)47 —
a collection of lawyers, judges, legislators, and academics formed in 1892
and most famous for inventing the Uniform Commercial Code — proposed a uniform act providing for the arrest and extradition of “Persons
of Unsound Mind.”48 Several years later, the NCCUSL approved the
first Uniform Criminal Extradition Act, a legal framework for the apprehension and transportation of interstate fugitives.49 By the mid1920s, law enforcement officials were collecting and trading information
at both the front and back ends of the criminal legal process, which, in
turn, was beginning to look more like a coordinated criminal justice
system.
One should not overstate the coherence of this system.50 Many of
the agencies involved in criminal law enforcement were in their infancy
during the Progressive Era; documentation of prisoners was a piecemeal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
44 CAHALAN, supra note 39, at I-3; see also STEPHANIE MINOR-HARPER, U.S. DEP’T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS, STATE AND FEDERAL PRISONERS, 1925–85, at 2
(1986) (documenting the creation of a National Prisoner Statistics program within the Bureau of
the Census).
45 Richman & Seo, supra note 19, at 3; see id. at 6–8; see also DAVID M. HUDAK & RICHARD
D. ENGLER, NAT’L SHERIFF’S ASS’N, RESEARCH STUDY NUMBER 2.1: MANDATES FOR
INTERSTATE PRISONER TRANSPORTS 32 (1977) (“Early in this century the increasing use of the
automobile and the convenient availability of other modern means of transportation resulted in
larger and larger numbers of offenders being convicted of crimes in states far away from their
homes.”).
46 See Richman & Seo, supra note 19, at 12.
47 The National Conference of Commissioners on Uniform State Laws is also known as the
Uniform Law Commission. About Us, UNIFORM L. COMMISSION, https://www.uniformlaws.org/aboutulc/overview [https://perma.cc/YC4T-WQLK].
48 HUDAK & ENGLER, supra note 45, at 29; see id. at 29–30.
49 Id. at 7, 11.
50 Some resist calling it a “system” at all. See Bernard E. Harcourt, The Influence of Systems
Analysis on Criminal Law and Procedure: A Critique of a Style of Judicial Decision-Making
(Columbia Law Sch., Public Law Research Paper No. 14-562, 2013), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3062900 [https://perma.cc/H8YE-HYZA] (arguing that the concept of a
criminal justice “system” emerged in the 1960s and critiquing the implications of this method of
describing the legal structures surrounding criminal law); see also JOHN F. PFAFF, LOCKED IN 163
(2017) (“[C]riminal justice is, at best, a set of systems, and at worst it is a swirling mess of somewhat
antagonistic agencies.”).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1827

project;51 and states and localities voiced significant opposition to the
centralization of criminal law enforcement.52 Still, this was a sustained
period of state-building driven by an interest in data collection, enthusiasm about cooperative governance, and fear about interstate crime.53
The 1920s was also a decade of increasing optimism about regional
administration of American laws. Across domains from transportation
and waste disposal to education and criminal justice, government officials touted the benefits of regional governance, specifically interstate
compacts.54 Compacts, these officials argued, could address the policy
concerns wrought by increased mobility without sacrificing cultural variation and local control.55 For opponents of federal law enforcement
and skeptics of the fledgling administrative state, regional agreements
served as a means to “stave off federal intervention.”56
Against this backdrop, state officials came together in 1933 to form
the Council of State Governments, a “region-based forum”57 composed
of governors, state legislators, and delegates from state judiciaries.58
The next year, Congress granted blanket approval for states to “enter
into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime.”59 The Interstate Commission on
Crime Control — a working group that would soon be supplanted by
the Council of State Governments — then began to draft laws and
model agreements “designed to improve law enforcement practices”60

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
51
52

CAHALAN, supra note 39, at 2–4.
Richman & Seo, supra note 19, at 5–6 (“Centralized police forces were anathema, and federal
criminal intervention politically fraught . . . .” Id. at 5.).
53 As immigration scholars have shown, anxiety about crime in the early twentieth century was
also connected to growing xenophobia and nationalism prompted by immigration from China,
Mexico, and eastern Europe. See, e.g., JOHN HIGHAM, STRANGERS IN THE LAND 160 (2002);
MAE M. NGAI, IMPOSSIBLE SUBJECTS 67–69 (2004); Louis Henkin, Essay, The Constitution and
United States Foreign Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L.
REV. 853, 855 (1987).
54 See Jessica Bulman-Pozen, Our Regionalism, 166 U. PA. L. REV. 377, 384–87 (2018); see also
Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49
FLA. L. REV. 1, 3–4 (1997).
55 Bulman-Pozen, supra note 54, at 397.
56 Id. at 395. See generally Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of
Horizontal Federalism, 113 MICH. L. REV. 57, 112–13 (2014) (explaining that state agencies form
networks to “stave off federal intervention,” id. at 113).
57 About
CSG, COUNCIL STATE GOV’TS, https://www.csg.org/about/default.aspx
[https://perma.cc/WGH9-LH8Z].
58 HUDAK & ENGLER, supra note 45, at 30.
59 Act of June 6, 1934, ch. 406, § 1, 48 Stat. 909, 909 (codified as amended in 4 U.S.C. § 112
(2018)); see
also Interstate
Corrections
Compact, COUNCIL STATE GOV’TS,
http://apps.csg.org/ncic/Compact.aspx?id=82 [https://perma.cc/LN8K-QYFL] (indicating that state
statutes codified the compact between 1959 and 1994).
60 HUDAK & ENGLER, supra note 45, at 33.

Electronic copy available at: https://ssrn.com/abstract=3576088

1828

HARVARD LAW REVIEW

[Vol. 133:1815

and “establish legal machinery to permit corrections administrators to
transfer convicted offenders to institutions in other states.”61
At the same time, correctional officials started to enter bilateral
agreements permitting interstate prison transfers. Women prisoners in
particular presented a policy problem for state governments. As the
Council of State Governments (CSG) explained in its Handbook on
Interstate Crime Control, “[s]ome states [did] not have the large number
of female prisoners required to justify heavy investments in a state
prison for women.”62 Rather than building new prisons or adopting
alternative punishments, states began to share space. In 1941, New
Hampshire contracted to send its female prisoners to the Vermont
Women’s Reformatory, paying a per diem rate per prisoner.63 At least
six states — Colorado, Nebraska, New Mexico, South Dakota, Utah,
and Wyoming — entered similar contracts for housing their female
prisoners.64
Eventually, this model of penal management spread across the country. Building from contracts devised for “specialized” — that is, relatively small — categories of prisoners including women, “the criminally
insane,”65 and “the mentally retarded,”66 state corrections agencies began to enter multistate compacts allowing for transfers of all sentenced
prisoners.67 A subcommittee of the Council of State Governments
drafted the first of these agreements, the Western Corrections Compact,
in 1958.68 A group of New England states then created a nearly identical compact,69 and the Council of State Governments followed suit with
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
61
62

Id. at 53.
Id. at 54 (citing COUNCIL OF STATE GOV’TS, THE HANDBOOK ON INTERSTATE CRIME
CONTROL 48 (rev. ed. 1966)).
63 Id. at 56; see also COUNCIL OF STATE GOV’TS, supra note 62, at 48.
64 HUDAK & ENGLER, supra note 45, at 56; see also COUNCIL OF STATE GOV’TS, THE
HANDBOOK ON INTERSTATE CRIME CONTROL 99 (1955) (recounting a meeting in October 1954
at which “representatives of the states of Alabama, Louisiana, Mississippi, Oklahoma, Tennessee,
and Texas” met to “explore ways and means of developing future plans and program [sic] for adult
women prisoners on the basis of interstate cooperation”); Mitchell Wendell, Multijurisdictional
Aspects of Corrections, 45 NEB. L. REV. 520, 524–25 (1966) (describing a failed effort to create a
“regional women’s prison,” id. at 524, in the early 1950s).
65 HUDAK & ENGLER, supra note 45, at 53.
66 Id. at 54.
67 See id. at 53–54.
68 Id. at 57; see also Western Corrections Compact, COUNCIL STATE GOV’TS,
http://apps.csg.org/ncic/Compact.aspx?id=209 [https://perma.cc/L696-A63B] (indicating that state
statutes codified the compact between 1959 and 1971). The Western Corrections Compact was
drafted by the Western Governors’ Conference, which was then an “integral part[]” of the CSG.
HUDAK & ENGLER, supra note 45, at 57 n.120.
69 HUDAK & ENGLER, supra note 45, at 58; New England Corrections Compact, COUNCIL
STATE GOV’TS, http://apps.csg.org/ncic/Compact.aspx?id=130 [https://perma.cc/5GDC-S6E8] (indicating that Congress authorized the compact in 1934 and state statutes codified the compact between 1958 and 1973).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1829

a national compact in 1968.70 By the mid-1970s, thirty-five states and
Guam were party to at least one corrections compact, each state had
passed enabling legislation,71 and states had begun to build computerized databases to facilitate interstate prison transfers.72
States justified their participation in these compacts on the ground
that interstate imprisonment would produce more tailored — and hence
more effective — punishment. In handbooks and government studies,
officials insisted that cooperative governance would not only lower the
cost of housing specialized populations, reduce crowding, and make it
easier to manage prisoners who pose “chronic threats” to staff and other
inmates;73 regional prisons would also facilitate a more personalized,
benevolent model of corrections. As one prison bureaucrat explained,
“pooling and cooperative utilization of resources” could promote “development of an individualized approach to corrections that is frequently
beyond the capabilities of any single state.”74 Calls for regional prison
governance thus dovetailed with the rise of the rehabilitative ideal, a
vision of corrections in which prisons “serve to reform criminals through
individualized, therapeutic treatment.”75
In some ways, this rehabilitative conception of punishment echoed
eighteenth-century arguments for the penitentiary. Like the Founders,
midcentury reformers believed that prisons could transform people
before their eventual return to society.76 By the 1970s, however, the
penal institution was no longer framed as a local alternative to shipping
prisoners out of the jurisdiction. Instead, transportation had become a
mechanism for prisoners’ reform — a way to collaborate, share costs,
and deliver bespoke prison programs. Over the course of a century, the
expansion and professionalization of American prison systems had
defanged transportation, turning the forced movement of prisoners
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
70
71

HUDAK & ENGLER, supra note 45, at 59.
See id. at 57–59. By the midnineties, thirty-eight states and Washington, D.C., had signed on
to and codified the Interstate Corrections Compact. See Interstate Corrections Compact, supra note
59 (listing state statutes codifying the national compact).
72 See HUDAK & ENGLER, supra note 45 (describing findings documented on the Computer
Assisted Prisoner Transportation Index Service (CAPTIS)).
73 Id. at 54; see id. at 54–56.
74 Id. at 54.
75 Emma Kaufman, Segregation by Citizenship, 132 HARV. L. REV. 1379, 1393–94 (2019); see
also Rothman, supra note 18, at 116–19 (describing the emergence of the rehabilitative ideal).
76 See MCLENNAN, supra note 16, at 36–38 (noting that Benjamin Rush advanced this view in
Philadelphia in the late eighteenth century). The midcentury rehabilitative ideal differed from earlier models of punishment in its focus on tailored prison programs and therapeutic — that is,
medical and psychiatric — interventions. See FRANCIS A. ALLEN, THE DECLINE OF THE
REHABILITATIVE IDEAL 41–45 (1981). By contrast, the early penitentiary was meant to be a place
where solitude spurred reflection and repentance. MCLENNAN, supra note 16, at 36. These visions
of corrections are quite different: one is quasi-religious, the other medical; one prioritizes idleness,
the other programmed activity; one is premised on uniformity, the other personalization. Both,
though, imagine prisons as transformative institutions.

Electronic copy available at: https://ssrn.com/abstract=3576088

1830

HARVARD LAW REVIEW

[Vol. 133:1815

from a barbarous sanction into an incidental feature of efficient prison
governance.
The result is a penal estate in which prisoners can be transferred
great distances in the name of effective administration. With exceptions
explored below, interstate corrections compacts mean that prison officials can ship state prisoners all over the United States. In practice, as
Part II explains, transfers occur infrequently in most states and tend to
be used to manage crowding or political opposition to prison construction.77 But under the terms of interstate compacts, state prison systems
are legally borderless. Despite the fact that state criminal codes deliver
people to prison and state budgets determine criminal enforcement practices, state prisons are part of an interstate network in which prisoners
are objects of free trade.78
B. The Law of Prison Transfers
Though they differ in important respects,79 interstate corrections
compacts share a basic model. These agreements allow states to contract with one another to trade their prisoners and establish ground rules
concerning payment, transfer procedures, and jurisdiction over prisoners who are sent across state lines.
The general principles are straightforward: sending states pay receiving states for each prisoner they transfer and cover “extraordinary
medical and dental expenses” as well.80 Sending states can recall their
prisoners and inspect prisons in receiving states.81 Technically, a transferred prisoner has the right to the same hearings and benefits he would
have if confined in his home state, though this rule is often honored in
the breach.82 At the end of their sentences, transferred prisoners return
home unless they and both states agree to “release in some other place.”83
Sending states “bear the cost of [prisoners’] return to [their] territory.”84
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
77
78

See infra pp. 1842–43.
There are, of course, exceptions to this broad claim. West Virginia continues to ban interstate
prisoner transfers, see infra pp. 1835–36, and as section II.B explains, prison officials use corrections
compacts much less often than they could.
79 For example, the Western and New England Corrections Compacts permit states to agree,
before any new prison construction, that a prison in the “receiving state” will reserve a specific
percentage of its capacity for prisoners from a “sending state.” CONN. GEN. STAT. § 18-102 (2019)
(New England Interstate Corrections Compact); WASH. REV. CODE § 72.70.010 (2019) (Western
Corrections Compact). The national compact lacks this construction provision. See NEV. REV.
STAT. § 215A.010–.060 (2019) (Interstate Corrections Compact).
80 E.g., CONN. GEN. STAT. § 18-102.
81 E.g., id.
82 See, e.g., id.; infra note 87 (collecting cases in which courts have come to conflicting conclusions about which state’s classification policies, disciplinary rules, and grievance procedures apply
to transferred prisoners).
83 E.g., CONN. GEN. STAT. § 18-102.
84 E.g., id.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1831

Compacts thus create a power-sharing framework in which states can
rent out space in other states’ prisons without relinquishing their
authority over prisoners.
This framework is fraught in practice. Interstate corrections compacts raise thorny legal questions about jurisdiction and liability for
illegal conduct. If a prisoner remains in the constructive custody of his
home state after an interstate transfer, who is the proper custodian when
a prisoner brings a habeas claim?85 Which state’s officers can be sued
for violations of a prisoner’s constitutional rights?86 Is a prisoner governed by the security classification, grievance procedures, and disciplinary rules of his home state or the state where he is confined?87 When
is medical care sufficiently unusual or serious to warrant payment by a
sending state?88 Who decides when a prisoner is eligible for parole or
other forms of discretionary early release?89 Which state’s criminal code

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 See, e.g., Unger v. Moore, 258 F.3d 1260, 1264 (11th Cir. 2001) (holding that a prisoner serving
a Maryland sentence while incarcerated in Florida should have filed his habeas petition in
Maryland); Fest v. Bartree, 804 F.2d 559, 560 (9th Cir. 1986) (holding that Nebraska retained constructive custody for purposes of habeas over a prisoner sentenced in Nebraska and transferred to
Nevada); Smart v. Goord, 21 F. Supp. 2d 309, 314 (S.D.N.Y. 1998) (holding that New Hampshire
was the proper custodian of a habeas petitioner sentenced in New Hampshire and transferred to
New York).
86 See, e.g., Hannon v. Beard, 524 F.3d 275, 281 (1st Cir. 2008) (holding that the Massachusetts
long-arm statute permitted a federal district court in Massachusetts to exercise personal jurisdiction
over the head of the Pennsylvania Department of Corrections when a prisoner challenged as retaliatory his transfer to Massachusetts); Bertram v. Wall, No. CA 01-422ML, 2002 WL 1889030, at *4
(D.R.I. July 11, 2002) (holding that a Rhode Island district court lacked personal jurisdiction over
Connecticut prison officials alleged to have violated the constitutional rights of a prisoner transferred from Rhode Island).
87 Compare, e.g, Boyd v. Werholtz, 203 P.3d 1, 2–3 (Kan. Ct. App. 2008) (holding that Kansas
grievance procedures applied to a prisoner from Kansas who was confined in Washington state),
with Blevins v. Jones, No. CIV-07-388-T, 2007 WL 1731442, at *7 (W.D. Okla. June 14, 2007)
(holding that Kansas classification procedures applied to a prisoner from Oklahoma who was confined in Kansas).
88 Cf. Defendants’ Motion for Summary Judgment at 33, Rodesky v. Wexford Health Sources
Inc., No. 15-CV-1002 (C.D. Ill. Jan. 10, 2020) (noting, in a case concerning delayed and allegedly
unconstitutional medical care, that Illinois doctors in the receiving state “were waiting on a response
from the New Jersey Department of Corrections”). The Illinois Department of Corrections has
raised the issue of interstate agreement to medical expenses in this ongoing case, but the record
leaves unclear what role New Jersey officials played in this prisoner’s treatment.
89 Generally, transferred prisoners remain subject to the parole authority in their state of conviction. Issues arise, however, when conditions in a receiving state — such as that state’s security
classification policies or the availability of particular programs — affect a prisoner’s eligibility for
parole. See, e.g., Fox v. Stotts, No. 99-3231, 2000 WL 84899, at *1–2 (10th Cir. Jan. 27, 2000)
(rejecting a due process challenge to the Kansas Parole Board’s decision to hold parole hearings in
absentia for a Kansas prisoner transferred to Florida); Reid v. Stanley, No. 04-CV-369, 2006 WL
1875335, at *4–5 (D.N.H. July 6, 2006) (rejecting a New Hampshire prisoner’s claim that his confinement in Connecticut, where the security classification system prevented his eligibility for parole,
violated his right to due process).

Electronic copy available at: https://ssrn.com/abstract=3576088

1832

HARVARD LAW REVIEW

[Vol. 133:1815

applies when a prisoner commits a crime in an out-of-state prison?90
The list goes on. And the core question remains: Do states have the
power to send prisoners outside the polity whose laws they have broken?
The last question concerned the lawyers who invented interstate
corrections compacts. In 1966, Mitchell Wendell, the general counsel
for the Council of State Governments, wrote an article exploring the
legal puzzles raised by multijurisdictional corrections.91 “[W]e are not
accustomed to think of State X having any power to act within State Y,”
Wendell began.92 Indeed, “[t]he very idea that a person could be effectively restrained of his liberty on a continuing basis pursuant to the
penal power of another jurisdiction [is] unfamiliar to traditional concepts of American criminal jurisprudence.”93 In a criminal legal system
premised on the social contract — on the idea that a state’s power to
punish derives from a democratic decision to sanction certain conduct
by members of a political community whose “jurisdiction ends at the
state line” — it was odd, to say the least, to permit states to outsource
their punishment authority.94
But, the article reasoned, interstate agreements on probation and parole had paved the way for a solution: consent. “No candidate for parole
or probation is forced to accept supervision in another state,” Wendell
explained.95 The “voluntary character” of interstate parole agreements,
combined with the fact that “no person has a constitutional right” to be
paroled, “eased, if not entirely dissipated,” concerns about the constitutionality of such agreements.96 Wendell did not clarify which legal construct — voluntariness or the absence of a constitutional right — made
interstate probation and parole regimes permissible. But reasoning by
analogy to those regimes, he concluded that interstate prison transfers
could be constitutional.97
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
90 See, e.g., State v. Wagner, 596 N.W.2d 83, 88 (Iowa 1999) (holding that Iowa could not criminally prosecute an Iowa prisoner who had been transferred to Texas and then escaped on the
ground that the Interstate Corrections Compact (ICC) “did not make it a crime against the laws of
Iowa for a prisoner to escape Iowa’s legal custody while in another state”). As the Supreme Court
of Iowa explained, nothing in the ICC “implies any reference to criminal or territorial jurisdiction.”
Id. Note the sharp distinction between preconviction criminal jurisdiction and postconviction jurisdiction to punish here.
91 Wendell, supra note 64.
92 Id. at 527; see also DAVID M. HUDAK ET AL., NAT’L SHERIFF’S ASS’N, LEGAL
FEASIBILITY ANALYSES 3.1 THROUGH 3.5: ANALYSIS OF LEGAL AUTHORITY FOR
COOPERATIVE INTERSTATE PRISONER TRANSPORTS (1978) (cataloguing the legal questions
prompted by interstate prisoner transfers).
93 Wendell, supra note 64, at 532.
94 Id. at 522; see infra Part III.C, pp. 1869–73 (discussing the social contract theory of punishment at greater length).
95 Wendell, supra note 64, at 532.
96 Id.
97 Id. at 528.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1833

Two years later, on the basis of this analysis, the Council of State
Governments drafted the first national corrections compact.98 That
compact, like its regional predecessors, was silent on the question of
prisoner consent.99 Soon, however, prisoners began to challenge their
transfers, and courts began to build a jurisprudence on whether prisoners have a right to remain in their home states.
In early cases on that question, lower courts concluded that prisoners
had no federal right to be incarcerated in the state where they were
convicted.100 To reach that conclusion, courts turned to Meachum v.
Fano,101 a 1976 decision in which the Supreme Court had rejected a
Massachusetts prisoner’s due process challenge to an intrastate transfer
on the ground that the prisoner lacked a right to be held in any particular Massachusetts prison.102 Citing Meachum, appellate courts reasoned that interstate transfers, too, passed constitutional muster.103
“Were we to hold the Due Process Clause applicable to . . . out-of-state
transfer[s],” the Second Circuit warned, “we would ‘place the Clause
astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of
federal judges.’”104 As the Second Circuit saw it, federal courts ought
not decide where state prison sentences are imposed.
The Supreme Court affirmed this view in Olim v. Wakinekona,105
a landmark, understudied case from 1983. Wakinekona arose from
Hawaii’s decision to transfer Delbert Kaahanui Wakinekona, a prisoner
whom correctional officials had “singled out . . . as [a] troublemaker[],”
to Folsom State Prison in California.106 When Wakinekona challenged
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
98
99

See Interstate Corrections Compact, supra note 59.
Some states, however, took positions on the necessity of consent. When it first adopted the
New England Corrections Compact, Vermont “included a special provision . . . designed to insure
that any inmate committed in Vermont would not be transferred” out of the state without his consent. Opinion of the Justices to the Senate, 184 N.E.2d 353, 355 (Mass. 1962). Vermont’s consent
rule has since been revoked. VT. STAT. ANN. tit. 28, § 1603 (2019).
100 See, e.g., Hillen v. Dir. of Dep’t of Soc. Serv. & Hous., 455 F.2d 510, 511 (9th Cir. 1972) (holding
that transfers under the Western Corrections Compact “present[ed] no issue related to federally
protected constitutional rights of the prisoner”); see also Cofone v. Manson, 594 F.2d 934, 937–38
(2d Cir. 1979) (concluding that Connecticut law conferred no federally protected due process right
to avoid the transfer of a Connecticut state prisoner to a federal prison in Georgia).
101 427 U.S. 215 (1976).
102 Id. at 225 (“Neither, in our view, does the Due Process Clause in and of itself protect a duly
convicted prisoner against transfer from one institution to another within the state prison system.
Confinement in any of the State’s institutions is within the normal limits or range of custody which
the conviction has authorized the State to impose. That life in one prison is much more disagreeable
than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated
when a prisoner is transferred to the institution with the more severe rules.”).
103 Cofone, 594 F.2d at 937 (citing Meachum, 427 U.S. at 224–25).
104 Id. at 939 (quoting Meachum, 427 U.S. at 228–29).
105 461 U.S. 238 (1983).
106 Id. at 240–41.

Electronic copy available at: https://ssrn.com/abstract=3576088

1834

HARVARD LAW REVIEW

[Vol. 133:1815

his transfer under the Due Process Clause, the Supreme Court cemented
what several lower courts had held: prisoners have no federally protected right to confinement in any specific prison, “[e]ven when . . . the
transfer involves long distances and an ocean crossing.”107 In justifying
this holding, the Court echoed arguments made by the state officials
who had drafted interstate corrections compacts two decades earlier.
Practical concerns — including “[o]vercrowding and the need to separate particular prisoners” — “necessitate[d] interstate [prisoner] transfers” and therefore a permissive reading of the Due Process Clause.108
The Court also invoked the existence of “[c]orrections compacts
between states” as evidence that prison transfers were constitutional.109
Citing the Western, New England, and national compact agreements,
Justice Blackmun’s majority opinion noted that states had embraced
interstate transfers, rendering out-of-state confinement “neither
unreasonable nor unusual.”110 This assertion was questionable — as
Justice Marshall pointed out in his dissent, less than three percent of
Hawaii’s prisoners and just one percent of prisoners nationally were
transferred out-of-state in 1979111 — but corrections compacts were on
the rise. Because compacts had grown increasingly common, the Court
concluded, “an inmate . . . has no justifiable expectation that he will
be incarcerated in any particular State.”112 The birth and expansion of
a borderless prison system thus became the grounds for its own
constitutionality.
After Wakinekona, prisoners had no federal right to contest transfers.113 The case, moreover, resolved the question left open by Mitchell
Wendell’s 1966 article: if Delbert Wakinekona’s nonconsensual transfer
to California was constitutional, it was the absence of a federal right to
be punished where one is convicted, not the voluntariness of a transfer,
that made interstate prisoner transportation legal.114 By 1983, even
forced transfers comported with the Federal Constitution.
There remained, however, the problem of state law — specifically,
the centuries-old banishment prohibitions that existed in many state
constitutions. Although several states had amended or repealed their
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
107
108
109
110
111
112
113

Id. at 247.
Id. at 246.
Id.
Id. at 247.
Id. at 254 (Marshall, J., dissenting).
Id. at 245 (majority opinion).
At least on due process grounds. See id. at 248 (“[A]n interstate prison transfer . . . does not
deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself.”).
Part III explores whether Wakinekona was wrongly decided and whether the case forecloses other
constitutional challenges to transfers. See infra pp. 1873–74.
114 See Wendell, supra note 64, at 532.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1835

transportation bans by the 1980s,115 a number of state constitutions, including those of Illinois, Vermont, and West Virginia, retained clauses
prohibiting banishment, outlawry, and out-of-state confinement for state
crimes.116 Prisoners turned to those provisions to challenge their transfers, arguing that interstate transfers amounted to unlawful “exile.”117
West Virginia adopted the prisoners’ interpretation. In a littleknown opinion from 1984 — a precedent cited only nine times in
thirty-six years — the West Virginia Supreme Court took up a case that
grew out of the closure of a women’s prison in Pence Springs, an unincorporated community in southern West Virginia.118 After that prison
closed, the West Virginia Department of Corrections sent two “obstreperous and difficult” women, Connie Ray and Kathy Schofield, to prison
in California.119 “Miss Schofield and Miss Ray” sued under article III,
section 5 of West Virginia’s constitution,120 which provides that “[n]o
person shall be transported out of, or forced to leave the State, for any
offence committed within the same.”121 That clause, they argued,
barred not only formal banishment from the state as punishment for a
crime but also involuntary confinement “beyond the borders of West
Virginia.”122
The court agreed, holding that the state’s constitution forbade “any
semblance of the punishment known at common law as ‘abjuration of
the realm,’” including the involuntary transfers at issue.123 “Our state’s
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
115 Some states, including Mississippi and South Carolina, removed their banishment prohibitions in the aftermath of the Civil War as the convict leasing system took root across the South.
Compare MISS. CONST. of 1817, art. I, § 27, and S.C. CONST. of 1778, art. XLI, with MISS. CONST.
of 1868, and S.C. CONST. Other states amended their constitutions in the latter half of the twentieth
century when regional governance and interstate corrections compacts were on the rise. Texas, for
instance, amended its constitution in 1985 to clarify that its transportation ban did not “prohibit an
agreement with another state providing for the confinement of inmates of this State in the penal or
correctional facilities of that state.” TEX. CONST. art. I, § 20.
116 ILL. CONST. art. 1, § 11; VT. CONST. ch. 1, art. XXI; W. VA. CONST. art. III, § 5.
117 See, e.g., Girouard v. Hogan, 378 A.2d 105, 106 (Vt. 1977).
118 Ray v. McCoy, 321 S.E.2d 90, 91 (W. Va. 1984).
119 Id. The plaintiffs were first sent to a federal women’s prison in Alderson, West Virginia,
before the state chose to transfer them to California. Id.
120 Id.
121 W. VA. CONST. art. III, § 5.
122 Ray, 321 S.E.2d at 91.
123 Id. (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *333). Because Ray and Schofield
were transferred to California as punishment for their “recalcitran[ce],” id. at 91, one might adopt
a narrow reading of the case in which only punitive or disciplinary transfers violate the state constitution. The West Virginia Department of Corrections has, however, taken a broader approach,
interpreting the banishment provision to cover all interstate transfers. NAT’L INST. OF CORR.,
supra note 9, at 11. Nevertheless, in recent years, West Virginia has considered sending its prisoners
to private prisons out of state. See, e.g., Andrew Cohen, Yes, West Virginia, a Private Prison
Transfer Is a Terrible Idea, THE WEEK (Feb. 5, 2014), https://theweek.com/articles/451644/yeswest-virginia-private-prison-transfer-terrible-idea [https://perma.cc/7JTJ-XX6E]. West Virginia
courts have yet to rule on whether such a practice, if adopted, would be constitutional.

Electronic copy available at: https://ssrn.com/abstract=3576088

1836

HARVARD LAW REVIEW

[Vol. 133:1815

hostility to banishment is . . . an essential prophylaxis to protect our inmates,” the majority announced.124 “To remain in West Virginia, even
to complain and be difficult, is that prisoner’s constitutional right.”125
Prisoners in other states fared worse. In the early 1980s, the Supreme
Court of Illinois construed that state’s nearly identical transportation
ban — “[n]o person shall be transported out of the State for an offense
committed within the State” — to permit transfers under the Interstate
Corrections Compact.126 The Supreme Court of Vermont endorsed the
same reading of its constitution, concluding that a prisoner’s “analogizing of [his out-of-state] transfer . . . with exile, banishment and transportation outruns the realities.”127 Under the Vermont Constitution, a
person’s “right to freely inhabit the State . . . is forfeit by his sentence of
incarceration.”128
Over time, West Virginia became the exception to a rule in favor of
transfers. By the early 1990s, state and federal jurisprudence had cohered around the idea that interstate prisoner transfers were legal. The
practice was also becoming increasingly normal. After Wakinekona,
states like Hawaii and Vermont began to rely on interstate transfers to
manage a growing share of their prison populations.129 Prisons were
booming — mass incarceration began in earnest in the mideighties130 —
and some states turned to transfers to ease overcrowding.131
States also looked to the private prison industry, which was expanding at a rapid clip.132 As state prison populations ballooned, some states
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
124
125
126
127
128
129

Ray, 321 S.E.2d at 92.
Id.
Sayles v. Thompson, 457 N.E.2d 440, 444 (Ill. 1983) (quoting ILL. CONST. art. 1, § 11).
Girouard v. Hogan, 378 A.2d 105, 106 (Vt. 1977).
Id.
See DEP’T OF SOCIOLOGY, UNIV. OF HAW. AT MANOA & DEP’T OF THE ATT’Y GEN.,
STATE OF HAW., HAWAII’S IMPRISONMENT POLICY AND THE PERFORMANCE OF PAROLEES
WHO WERE INCARCERATED IN-STATE AND ON THE MAINLAND 6 (2011) [hereinafter
HAWAII’S IMPRISONMENT POLICY] (describing Hawaii’s turn toward out-of-state prisons);
KIRBY, supra note 9, at 17 (documenting Vermont’s use of out-of-state private prisons); see also
N.H. Dep’t of Corr. & N.Y. Dep’t of Corr. Servs., Inmate Fact Sheet (on file with the Harvard
Law School Library) (noting that the Supreme Court’s ruling “that inmates do not have the right
to expect to be confined in any particular jurisdiction . . . clear[ed] the way for interstate transfers”).
130 See THE SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS 1 (2017) (documenting
a marked increase in prison admissions beginning in the early 1980s).
131 See, e.g., HAWAII’S IMPRISONMENT POLICY, supra note 129, at 36; see also Brandon v.
Alaska Dep’t of Corr., 938 P.2d 1029, 1030 (Alaska 1997) (noting that Alaska transferred approximately 200 prisoners to a private prison in Arizona “[d]ue to overcrowding in Alaska prisons”).
132 The contemporary private prison industry was “born in 1983 with the formation of Corrections Corporation of America (CCA).” KIRBY, supra note 9, at 7. In the United States, that industry
is dominated by three corporations: GEO Group, Management and Training Corporation, and
CCA, which is now known as CoreCivic. See Avlana K. Eisenberg, Incarceration Incentives in the
Decarceration Era, 69 VAND. L. REV. 71, 73 (2016) (noting that these three companies “constitute
more than 80% of the market for private prisons”); Kaufman, supra note 75, at 1402 n.157 (describing CCA’s rebranding). As prison historians have pointed out, there is a much longer history of

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1837

started to transfer prisoners not only to other states’ public prison
systems but also to out-of-state private prisons.133 Hawaii “leased its
first [private] prison beds” in 1995 and sent 300 prisoners to private
prisons in Texas the next year.134 A decade later, the number of Hawaii
prisoners in private facilities on the mainland had “increased almost
sevenfold” and more than half of all Hawaii prisoners lived in out-ofstate facilities.135
Other states followed Hawaii’s lead. In 1997, Idaho sent several
hundred state prisoners to Prairie Correctional Facility, a private prison
in Minnesota.136 Vermont began to house its prisoners in private facilities in Kentucky and Tennessee in 2004.137 In 2007, the California
Department of Corrections and Rehabilitation signed a contract for
Corrections Corporation of America to build and manage the mediumsecurity prison that holds California prisoners in Eloy, Arizona.138 By
2010, there were “California” and “Vermont” prisons in completely different states.
These prisons exist because state prison officials invented interstate
imprisonment. As noted in the Introduction, the history of corrections
compacts sheds new light on prison privatization, a phenomenon that is
often critiqued as part of a late twentieth-century trend toward decentralized, neoliberal governance.139 If prison privatization reflects the
decline of the modern state, it also depends on ideas about punishment
that emerged at the height of public administration. The interstate
prison system was born in the Progressive Era and bolstered by midcentury government officials who were committed to using public prisons
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
private prison management in the United States, which includes the privately run workhouses and
jails of the early nineteenth century, the convict leasing system discussed in section I.A, and the
largely unbroken history of selling goods made by prison labor. See, e.g., BLACKMON, supra note
17, at 54–57; MCLENNAN, supra note 16, at 27–29; Rothman, supra note 18, at 119–20.
133 KIRBY, supra note 9, at 9 (noting that, by 2013, California, Hawaii, Idaho, and Vermont were
transferring prisoners to out-of-state private facilities).
134 HAWAII’S IMPRISONMENT POLICY, supra note 129, at 6.
135 Id.
136 KIRBY, supra note 9, at 18.
137 Id. at 17.
138 CDCR Contracts for Additional Out of State Beds to Reduce Overcrowding, CAL. DEP’T
OF CORR. & REHAB. (Oct. 5, 2007), https://www.cdcr.ca.gov/news/2007/10/05/cdcr-contracts-foradditional-out-of-state-beds-to-reduce-overcrowding [https://perma.cc/DP55-F4EE]. This prison
was mentioned in the Introduction. See supra p. 1818; see also La Palma Correctional Center,
CORECIVIC, http://www.corecivic.com/facilities/la-palma-correctional-center [https://perma.cc/
YD65-BMPU].
139 See, e.g., Judith Resnik, Globalization(s), Privatization(s), Constitutionalization, and
Statization: Icons and Experiences of Sovereignty in the 21st Century, 11 INT’L J. CONST. L. 162,
181–90 (2013); Jonathan Simon, Rise of the Carceral State, 74 SOC. RES. 471, 492 (2007) (connecting
the rise of mass incarceration to neoliberalism); Marie Gottschalk, The Folly of Neoliberal Prison
Reform, BOS. REV. (June 8, 2015), http://bostonreview.net/books-ideas/marie-gottschalk-neoliberalprison-reform-caught [https://perma.cc/E2NH-CWDW].

Electronic copy available at: https://ssrn.com/abstract=3576088

1838

HARVARD LAW REVIEW

[Vol. 133:1815

to reform criminals and thereby curb crime.140 It was the public prisoner trade, in other words, that unmoored imprisonment from the territorial boundaries of state criminal law. And it was public prison officials
who perfected the practice of outsourcing punishment. Private prisons
depend on these developments.
The prisoner trade also depends on courts’ willingness to license
interstate punishment. Since the Supreme Court first encountered crossborder corrections in Olim v. Wakinekona, lower courts have developed
a dense body of law answering the questions raised by cooperative
prison administration.141 West published the first American Law
Reports on Interstate Corrections Compacts in 2010.142 Those reports
expose ongoing disagreements — it remains unsettled, for instance,
which state’s disciplinary rules govern transferred prisoners143 — but
their existence demonstrates just how fine-grained and widely accepted
the law of prison transfers has become. Fifty years after the Council of
State Governments’ lawyer wondered whether interstate transfers could
be legal, most courts have accepted the proposition that trading prisoners across state lines offends neither the Federal Constitution nor the
core tenets of American criminal law.
II. THE PRISON NETWORK
Part I documented the history of interstate prison governance. This
Part picks up where that story left off to describe the current state of
the prisoner trade in the United States. Drawing on data obtained
through state open-records laws144 analogous to the federal Freedom of
Information Act145 (FOIA), this Part provides an overview of states’ use
of prison transfer agreements.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
140
141

See supra section I.A, pp. 1822–30.
See supra notes 85–90 (listing cases addressing jurisdictional and other legal questions raised
by interstate prison transfers).
142 George L. Blum, Annotation, Construction and Application of Interstate Corrections Compact
and Implementing State Laws — Equivalency of Conditions and Rights and Responsibilities
of Parties, 56 A.L.R. 6th 553 (2010); George L. Blum, Annotation, Validity, Construction, and
Application of Interstate Corrections Compact and Implementing State Laws — Jurisdictional
Issues, Governing Law, and Validity and Applicability of Compact, 54 A.L.R. 6th 1 (2010) [hereinafter Blum, Validity].
143 Compare, e.g., Boyd v. Werholtz, 203 P.3d 1, 2–3 (Kan. Ct. App. 2008) (holding that a Kansas
prisoner incarcerated in another state had to follow Kansas Department of Corrections grievance
procedures), with Salstrom v. Sumner, No. 91-15689, 1992 WL 72881, at *1 (9th Cir. 1992) (rejecting
the claim that Arizona corrections officers should have applied Nevada disciplinary rules to a
Nevada prisoner’s hearing), and Stewart v. McManus, 924 F.2d 138, 141–42 (8th Cir. 1991) (holding
that Iowa disciplinary rules applied to a prisoner transferred from Kansas). See Blum, Validity,
supra note 142, § 7 (summarizing various conflicting holdings on this question).
144 See State Freedom of Information Laws, NAT’L FREEDOM OF INFO. COAL.,
https://www.nfoic.org/coalitions/state-foi-resources/state-freedom-of-information-laws
[https://perma.cc/JFZ8-MT2T] (listing state open-records statutes).
145 5 U.S.C. § 552 (2018).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1839

The data reveal a patchwork system in which most states confine
their own prisoners but some — especially small states and those facing
penal crises — rely on transfers to resolve budget disputes, comply with
court orders, and placate opponents of prison construction. This Part
unearths these political dynamics. It begins by explaining my efforts to
obtain data on prison placements using state transparency laws. It then
presents that data and outlines the varied, sometimes conflicting reasons
that prison officials give to explain why they choose to move prisoners
out of state. This survey raises normative questions about whether
states should be able to trade prisoners, and if so, whether they ought to
be trading them more.
A. State Sunshine Statutes
There is almost no public information on prison transfers. As a
general rule, state correctional agencies do not publish data on how
many prisoners are transferred each day, month, or year. Unlike the
preconviction criminal legal process — where hearings are public and
researchers routinely obtain and analyze pre-trial, post-trial, and sentencing data146 — the postconviction criminal justice system is tightly,
notoriously closed.147 In this respect, transfer practices are one piece of
the broader black box of prison management. This lack of transparency
makes it difficult to determine whether corrections officials are using
the interstate infrastructure they created over the last thirty years.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
146 See, e.g, Stephanie Holmes Didwania, The Immediate Consequences of Pretrial Detention,
AM. L. & ECON. REV. (forthcoming 2020) (manuscript at 6–13) (on file with the Harvard Law
School Library) (assessing data on pre-trial release from seventy-one district courts); Sonja B. Starr
& M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors
and the Effects of Booker, 123 YALE L.J. 2, 24–31 (2013) (using data from the U.S. Marshals Service,
the Executive Office for U.S. Attorneys, the Administrative Office of the U.S. Courts, and the U.S.
Sentencing Commission to examine arrest, booking, charging, and sentencing decisions); Crystal S.
Yang, Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing, 44 J. LEGAL
STUD. 75, 82–85 (2015) (analyzing data on federal sentences); Research, U.S. SENTENCING
COMM’N, https://www.ussc.gov/research/datafiles/commission-datafiles [https://perma.cc/D3D62U8M] (providing comprehensive annual data on federal sentences). Prosecutors’ offices, where
charging and plea-bargaining decisions are made, are a critical exception to this claim. See Marc
L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125, 129 (2008) (noting that the
“inner workings of prosecutor’s offices” are notoriously opaque). But see Starr & Rehavi, supra, at
24–26 (constructing a dataset that illuminates prosecutors’ decisions). Indeed, one might argue that
the most important stages of the criminal legal process — prosecution decisions, plea bargains, and
imprisonment — are the least transparent. From this perspective, the publicity of courts is the
exception rather than the norm.
147 See Colin Wood, Forgotten Inmates: Can Technology Help Prisons Remember?,
GOV’T TECH. (July 17, 2015), https://www.govtech.com/public-safety/Forgotten-Inmates-CanTechnology-Help-Prisons-Remember.html [https://perma.cc/X8RU-G37R] (quoting Professor
Sharon Dolovich’s description of the lack of transparency in prisons); see also Loïc Wacquant, The
Curious Eclipse of Prison Ethnography in the Age of Mass Incarceration, 3 ETHNOGRAPHY 371,
385 (2002) (noting that penitentiaries were “clos[ed] . . . to social researchers . . . just as the United
States was settling into mass incarceration” in the 1980s).

Electronic copy available at: https://ssrn.com/abstract=3576088

1840

HARVARD LAW REVIEW

[Vol. 133:1815

Freedom of information laws offer a partial solution to this problem.
Each state has a sunshine statute similar to FOIA, although some states,
including Arkansas,148 Tennessee,149 and Virginia,150 allow only their
citizens to make open records requests. Over the course of a year, I
submitted records requests and follow-up requests to all fifty states.
Those requests asked every correctional agency to disclose the number
of prisoners who were serving time in an out-of-state prison; the states
to which those prisoners had been transferred; the number of prisoners
the state had received from another jurisdiction; the number of prisoners
serving sentences in private facilities in or outside the state; the reason
for each transfer; and demographic data on transferred prisoners, including their sentence length, offense of conviction, race, ethnicity, age,
gender, and citizenship status.151
Forty-eight states responded.152 The overwhelming majority —
forty-two states — provided at least some of the data I requested, though
the level of detail states were willing to share varied.153 Some states
listed where they sent prisoners but not how many prisoners they transferred to each state.154 Other states kept no records of the reasons for
transfers.155 Many states ignored, refused to answer, or claimed to have
no data on questions about their use of private prisons.156 Georgia and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
148
149

ARK. CODE ANN. § 25-19-105(a)(1)(A) (2019).
TENN. CODE ANN. § 10-7-503(2)(A) (2019). Tennessee nonetheless chose to respond to my
request.
150 VA. CODE ANN. § 2.2-3704 (2020); see also Email from Ryan C. McCord, Legal Issues
Coordinator, Va. Dep’t of Corr., to author (Feb. 12, 2019) (on file with the Harvard Law School
Library) (requesting my “legal Virginia address” in order to “compil[e] a response to [my] request”).
151 See, e.g., Letter from author to Charles L. Ryan, Dir., Ariz. Dep’t of Corr. (May 17, 2018) (on
file with the Harvard Law School Library).
152 After submitting requests between summer 2018 and spring 2019, I am still waiting for data
from New Mexico and West Virginia. See Letter from author to Ashley Espinoza, Pub. Affairs
Coordinator, N.M. Corr. Dep’t (Jan. 27, 2019) (on file with the Harvard Law School Library); Letter
from author to Rebecca Hildebrand, W. Va. Dep’t of Corr. (Feb. 5, 2019) (on file with the Harvard
Law School Library).
153 Compare, e.g., Letter from Billie Reich, Interstate Compact Coordinator, Mont. Dep’t of Corr.,
to author (Feb. 11, 2019) (on file with the Harvard Law School Library) (providing extremely detailed information on Montana prisoners transferred under Interstate Corrections Compacts), with
Letter from Lisa Weitekamp, Freedom of Information Officer, Ill. Dep’t of Corr., to author (June 8,
2018) (on file with the Harvard Law School Library) (providing only a summary list of states with
which Illinois had traded prisoners).
154 See, e.g., Email from Allison Vyncke, Interstate Corr. Compact Case Manager, Colo. Dep’t of
Corr., to author (Aug. 8, 2018) (on file with the Harvard Law School Library) (listing states that
hold Colorado prisoners); Letter from Lisa Weitekamp, supra note 153 (listing states that hold
Illinois prisoners).
155 See, e.g., Email from Cyndi Heddleston, Office of Research and Legislative Serv., Ky. Dep’t
of Corr., to author (Mar. 1, 2019) (on file with the Harvard Law School Library).
156 The states that reported sending prisoners to out-of-state private prisons were California,
Hawaii, Maine, Nevada, South Carolina, and Wyoming. The states that said that they did not send
prisoners to out-of-state private facilities were Alaska, Colorado, Delaware, Indiana, Kentucky,

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1841

Kansas asked for large sums to process my request,157 and Maryland
and New Jersey denied my request, in the former case on the ground
that I did not “adequately identify the records”158 and in the latter
because such records are “highly confidential.”159 Arkansas and Virginia
declined to provide information to anyone without a state mailing
address.160
In the end, I opted not to contest these denials because the states that
did respond sent sometimes quite granular information that could be
cross-referenced. I learned about transfers to and from New Jersey, for
example, from the nineteen states that reported sending their prisoners
to that state and the eighteen states that said they had received
New Jersey prisoners.161 The same held true for transfers involving
Arkansas, Georgia, Kansas, Maryland, and Virginia. By comparing
data sets, I was able to compile a relatively comprehensive picture of
prisoners’ movement around the country.
To be clear, these data provide only a snapshot of interstate transfers
at one moment in time.162 To get a sense of how frequent transfers are,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Montana, New Hampshire, North Dakota, Oregon, Rhode Island, Utah, and Vermont. Iowa reported that it did not have prisoners in private out-of-state facilities “to the best of [its] knowledge”;
Oklahoma said it did not know whether prisoners went to private facilities once they were
transferred; and Kansas explained that it permits other states to house transferred Kansas prisoners
in their private prisons but has no current contracts with out-of-state private providers. The rest
of the states either ignored the private prison question, declined to answer it, or claimed to have no
responsive data. As a result, the data reported in Part II.B likely omit some (perhaps many)
prisoners in out-of-state private prisons and therefore undercount the total number of transferred
prisoners. Note, moreover, that news reports suggest that some states that claimed not to use
out-of-state private prisons now do. See, e.g., Colin Meyn & Alan J. Keays, Vermont’s Out-of-State
Prisoners Settling in to Mississippi Facility, VTDIGGER (Nov. 30, 2018), https://
vtdigger.org/2018/11/30/vermonts-state-prisoners-settling-mississippi-facility
[https://perma.cc/
X9GR-3GEM] (noting that in September 2018 Vermont hired CoreCivic to house Vermont prisoners in Mississippi).
157 Email from Cheryl Cadue, Publ’ns Editor, Kan. Dep’t of Corr., to author (July 12, 2018) (on
file with the Harvard Law School Library) (“Should you wish for the KDOC to provide the information you requested, please provide a check or money order in the amount of $3,800.00 . . . .”);
Email from Jamila Coleman, Assistant Counsel, Ga. Dep’t of Corr., to author (June 13, 2018) (on
file with the Harvard Law School Library) (requesting $70 per hour for an estimated 87.67 hours
of work — $6100 total — to fulfill the records request).
158 Letter from John Falvey, Records Custodian, N.J. Dep’t of Corr., to author (June 1, 2019) (on
file with the Harvard Law School Library).
159 Letter from Renata Seergae, Acting Dir. of Commc’ns, Md. Dep’t of Pub. Safety and Corr.
Servs., to author (Feb. 11, 2019) (on file with the Harvard Law School Library).
160 See Letter from Julie Benafield, Ark. Chief Deputy Att’y Gen., to author (June 4, 2018) (on
file with the Harvard Law School Library); Email from Ryan C. McCord, supra note 150.
161 See FOIA Data, supra note 13; see also infra Appendix, tbl.4 (mapping interstate prison pathways based on cross-referenced FOIA data).
162 A fuzzy snapshot at that. The data in this Article span from May 2018, when I received the
first response, to February 2019, when I received the last. Because states respond to FOIA requests
at different rates, it is very difficult (if not impossible) to capture a single moment in time. This is
one instance of a broader problem with prison data, which are often inaccurate because states use

Electronic copy available at: https://ssrn.com/abstract=3576088

1842

HARVARD LAW REVIEW

[Vol. 133:1815

one would need to repeat the FOIA process every few months. It is
possible, however, to get some sense of flow from existing reports.
Although there is very little writing on prison transfers by government
or advocacy groups,163 and almost no academic scholarship on the subject, the National Institute of Corrections compiled one brief descriptive
report on interstate transfers in 2006.164 Comparing that report to my
data and public information on the size of state prison populations165
provides a rough sense of how much states have used transfers over
time. I also conducted informal interviews with prison law practitioners
and with the corrections officials responsible for managing interstate
transfers in several states, including California and Texas. These
sources reveal a complex web of penal institutions spread across the
United States.
B. Interstate Prison Pathways
When compared to the American prison system as a whole, the number of prisoners living in out-of-state facilities is tiny. Of the 1.3 million
people currently held in state prisons,166 just under 10,000 currently live
outside their state of conviction,167 and most states export no more than
three percent of their prison population.168 At first pass, the story of
interstate transfers appears to be one of widespread nonuse.
This is not a new development. Public reports on the shrinking
American prison population169 could lead one to believe that prisons are
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
different collection methods and prison populations change daily as prisoners are admitted, transferred, and released.
163 For exceptions to this general claim, see KIRBY, supra note 9; NAT’L INST. OF CORR., supra
note 9; and RANDALL G. SHELDEN & SELENA TEJI, CTR. ON JUVENILE AND CRIMINAL
JUSTICE, COLLATERAL CONSEQUENCES OF INTERSTATE TRANSFER OF PRISONERS (2012).
164 NAT’L INST. OF CORR., supra note 9. This report was published in 2006 but based on data
from 2005. Id. at 1. The National Institute of Corrections (NIC) is a division of the Department
of Justice that was created in the 1970s. See History, NAT’L INST. CORR., https://nicic.gov/historyof-nic [https://perma.cc/8QXK-KQAD] (describing the NIC as a response to the “major riot at New
York’s Attica prison” in September 1971).
165 See, e.g., PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, PRISONERS IN 2005 (2007) (surveying state prison populations based on
custody counts in December 2004, June 2005, and December 2005).
166 See Sawyer & Wagner, supra note 10. This number does not include people incarcerated in
local jails, in federal prisons, in military prisons, in tribal prisons, in mental health facilities, or in
immigration detention centers. If one includes those populations, the total number of people incarcerated in the United States is 2.3 million. Id. State prisons thus hold roughly fifty-five percent of
the total confined population. See id.
167 FOIA Data, supra note 13.
168 Id.; see infra Appendix, tbl.1.
169 See, e.g., JACOB KANG-BROWN ET AL., VERA INST. OF JUSTICE, THE NEW DYNAMICS
OF MASS INCARCERATION 5 (2018) (“Since 2007, when the country hit a peak of nearly 800 people
in prison per 100,000 working age adults — over 1.6 million people total — overall prison incarceration has declined by about 1 percent on average each year.”). To be clear, this decline in state
prison populations over the last decade does not necessarily mean that Americans are incarcerating

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1843

downsizing and interstate transfers are declining as a result. This prediction would make sense given that cross-border transfers are one way
for crowded state prison systems to rent extra space. But the overall
rate of interstate transfers is roughly the same as it was in 2005, at the
height of America’s reliance on state prisons.170 Indeed, in states including Delaware and Montana, the number of transfers has increased
as states have reduced their prison populations.171 The evidence therefore fails to support a general theory about decarceration. Instead, it
seems that interstate transfers have been a small but consistent part of
American punishment since courts deemed the practice constitutional in
the early 1980s.172
In some states, however, transfers are quite common. Hawaii and
Vermont, both states in which there were early legal challenges to involuntary prison transfers, have long shipped a large number of their
prisoners out of state.173 Today, Hawaii houses close to half of its prisoners in mainland prisons, and a sixth of Vermont’s prison population
is confined out of state.174 Wyoming exports five percent of its prisoners,
down from nearly a third of its prisoners in 2005.175 These states rely
on transfers and suggest a slightly different account: transfers may be
rare against the stunning baseline of mass incarceration, but they appear
to be essential to certain punishment regimes.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
fewer people. In some states such as Kentucky, local jail populations have increased as state prison
populations have declined. Id. at 6. Thus, states may be turning to different sites of incarceration
rather than rejecting custodial sanctions.
170 FOIA Data, supra note 13 (showing a national average of 2.4% prisoners exported from their
states of conviction in 2005 and 1.8% in 2019). Note that the figure for 2019 may actually be higher
given the number of states that declined to respond to FOIA requests or omitted data on prisoners
exported to private facilities.
171 See id. (showing this trend in states such as Delaware, Hawaii, and Montana).
172 See supra pp. 1833–37 (discussing constitutional challenges to involuntary interstate prison
transfers in the 1980s).
173 See supra section I.B., pp. 1830–38.
174 See infra Appendix, tbl.1.
175 See infra Appendix, tbl.2. Alaska, too, held more prisoners out of state a decade ago. In 2005,
nearly sixteen percent of Alaskan prisoners were transferred beyond the state, while in 2019 less
than one percent of prisoners lived outside Alaska. See FOIA Data, supra note 13.

Electronic copy available at: https://ssrn.com/abstract=3576088

1844

HARVARD LAW REVIEW

[Vol. 133:1815

Figure 1: Transfers as a Percentage of Total
In-State Prison Population176

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
176

See infra Appendix, tbl.1 for a fuller account of this data.

Electronic copy available at: https://ssrn.com/abstract=3576088

1845

THE PRISONER TRADE

2020]

Specifically, transfers appear to be concentrated in small and
sparsely populated states, which depend on prisoner outsourcing.177
Figure 2: States with the Highest Transfer Rates178

2005

Top
Exporters

2019

State

Pris oners
Exported

State

Pris oners
Exported

Wyoming
Hawaii
Vermont
Alaska
North Dakota
Washington

29.2%
28.7%
18.7%
15.8%
4.8%
3.4%

Hawaii
Vermont
New Hampshire
Wyoming
Idaho
Nevada

45.3%
15.0%
5.2%
5.1%
3.2%
2.1%

These figures suggest significant movement in certain states — notably, small “low-incarceration” states rarely mentioned in discussions of
mass imprisonment. Nationally, though, the transfer rate is low and
state borders appear to be remarkably resilient.
Still, the sheer scope of the interstate prison system is striking.
Although the total number of transferred prisoners is relatively small,
almost all states ship at least some of their prisoners beyond state borders. Only two states — Michigan and West Virginia — did not engage
in interstate corrections in 2019.179 Every other state shared prison
beds, and not only with its neighbors. In fact, state prison officials sent
prisoners all over the country:

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
177
178

See infra Appendix, tbls.2 & 3 for a list of top importer and exporter states.
Note that California transferred the highest raw number of prisoners — nearly 1900 — in
2019 but fails to make this list because the state’s overall prison population is so high. See infra
Appendix, tbls.1, 2, & 3 for more data on transfers by state.
179 FOIA Data, supra note 13; see infra Appendix, tbl.3 (depicting the pathways of all reported
prisoner trades).

Electronic copy available at: https://ssrn.com/abstract=3576088

1846

HARVARD LAW REVIEW

[Vol. 133:1815

Figure 3: Interstate Prisoner Transfers in 2019180

It is difficult to discern which of these pathways is most traveled
because many states deemed the number of prisoners they sent to
each state confidential. But it is clear that this is a national network.
Colorado ships prisoners not only to Arizona, Kansas, and Utah, but
also to Alaska and Maine.181 New Jersey sends prisoners to California,
Florida, and Missouri.182 In other words, this is more than a few cases
of sharing between contiguous states. Transfers often involve extraordinary distances: using conservative figures (and crow-fly distances rather than the likely longer distances visitors would have to drive on existing roads), the average length of an interstate prison transfer in 2019
was 1252 miles, almost twice the width of Texas.183 The movement of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
180
181
182
183

See infra Appendix, tbl.4 for a detailed account of this data.
See id.
See id.
I calculated this figure using publicly available zip code data. Using the average longitude
and latitude of zip codes within each of the fifty states, I was able to construct a fairly accurate
centered set of longitude and latitude coordinates for each state. I then determined the distance in
miles between those coordinates for each interstate transfer reported by a state correctional agency.
I used one transfer for each coordinate set — for example, one instance of a transfer from Hawaii
to Arizona — because many states reported only the total numbers of transferred prisoners and a
list of states to which they transferred prisoners rather than providing weighted data on how many
prisoners they sent to each state. Given that many prisoners are transferred long distances —
consider, for instance, Hawaii’s high transfer rate — the average cited above (1252 miles) is likely

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1847

prisoners in this system looks less like regional cooperation than a highly
coordinated flight map for a national airline.
Figure 4: Interstate Prisoner Transfers in 2019 — Contiguous
United States184

If one focuses on the location of transfers rather than their frequency,
state prison systems start to look intensely interconnected.185
The term “state prison system” obscures this mobility. Rather than
fifty hermetically sealed state prison systems, the United States has an
interlocking penal estate with negotiable, porous boundaries. State borders define this system, much more than one would expect given the
capacious law on prison transfers, but territorial boundaries do not limit
the operation of state prisons. Instead, those limits depend on the exercise of prison officials’ discretion. The real question, then, is when and
why prison administrators choose to pay attention to state lines.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
lower than a weighted average would be. The median distance of an interstate transfer using this
approach is 1105 miles, and the maximum distance of any single transfer is 4893 miles.
184 See infra Appendix, tbl.4 for a detailed account of this data.
185 By contrast, correctional officials almost never agree to send foreign prisoners to serve their
sentences in their countries of origin. See Emma Kaufman, Extraterritorial Punishment, 20 NEW
CRIM. L. REV. 66, 80 (2017) (finding that state and federal correctional officials in the United States
reject ninety-seven percent of applications from foreign national prisoners who seek repatriation to
their countries of origin).

Electronic copy available at: https://ssrn.com/abstract=3576088

1848

HARVARD LAW REVIEW

[Vol. 133:1815

C. Rationales for Prisoner Transportation
Prison officials offer a range of reasons for sending prisoners outside
the state. Some fall under the heading “compassionate transfers,” a category that includes removing high-risk prisoners such as former police
and corrections officers from the prison population and sending prisoners to be closer to medical facilities, drug rehabilitation programs, or
their families.186 States transfer prisoners to alleviate overcrowding,187
to “reduce mandatory overtime [payments] for correctional officers,”188
and to discipline prisoners for misconduct.189
Prison administrators also use transfers to regulate violence. Fourteen states indicated that they transferred prisoners who were particularly powerful, volatile, or dangerous to other prisoners.190 Several
states reported using transportation to handle prison unrest — for
“management issue[s]”191 and “post[-]incident” cooldowns192 — and to
confine prisoners who have previously escaped.193 As one correctional

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
186
187
188

FOIA Data, supra note 13.
Id.
Josephine Peterson & Esteban Parra, Delaware Sending 330 Inmates to Pennsylvania at Cost
of $40,000 per Day, DEL. NEWS J. (Nov. 8, 2018, 10:18 AM), https://www.delawareonline.com/story/news/crime/2018/11/07/delaware-pays-pennsylvania-inmate-transfer-amidst-highovertime-costs/1922382002 [https://perma.cc/4MH2-73SK].
189 FOIA Data, supra note 13.
190 Id.
191 Email from Jonathan R. Eckstrom, Office of Gen. Counsel, S.C. Dep’t of Corr., to author
(Feb. 4, 2019) (on file with the Harvard Law School Library); see also FOIA Data, supra note 13.
192 Email from Michelle Linster, Pub. Info. Officer, N.D. Dep’t of Corr. & Rehab., to author
(Feb. 19, 2019) (on file with the Harvard Law School Library); see also FOIA Data, supra note 13.
For example, the Pennsylvania Department of Corrections reported that fifty-six prisoners had been
transferred into its prisons after a riot in Delaware. Email from Andrew Filkosky, Agency Open
Records Officer, Pa. Dep’t of Corr., to author (June 19, 2018) (on file with the Harvard Law School
Library); see also Andrew Knapp, After South Carolina Riot, 48 “Problematic” Inmates
Shipped to Private Mississippi Prison, POST & COURIER (June 22, 2018), https://
www.postandcourier.com/news/after-south-carolina-riot-problematic-inmates-shipped-to-privatemississippi/article_c22c925c-7626-11e8-9fcf-c75dcca4f8ec.html
[https://perma.cc/SL56-BPTE];
Michael Tanenbaum, Delaware to Transfer Hundreds of Inmates to Pennsylvania Prisons, PHILLY
VOICE (Nov. 8, 2018), https://www.phillyvoice.com/delaware-prisons-pennsylvania-correctionsinmates-transfer-uprising [https://perma.cc/EK26-8MGQ].
193 FOIA Data, supra note 13; see also NAT’L INST. OF CORR., supra note 9, at 12 (documenting
use of the same rationales in 2005).

Electronic copy available at: https://ssrn.com/abstract=3576088

THE PRISONER TRADE

2020]

1849

official put it, states tend to transfer prisoners who are “making life miserable for corrections staff.”194
Figure 5: A Survey of Transfer Rationales, with Caveats195
60
50
40
30
20
10
0

Transfers thus serve a variety of purposes. They can protect prisoners or penalize them. They can fill gaps in programming or expand
prison capacity. They can make up for budget shortfalls and staffing
shortages in states that cannot afford to recruit or pay the number of
correction officers they need. They can bridge the distance between
prisoners and their families or do precisely the opposite: operate as a

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
194 Letter from Cord Overton, Commc’ns Dir., Iowa Dep’t of Corr., to author (Jan. 31, 2019) (on
file with the Harvard Law School Library).
195 It is important to clarify what this chart does and does not show. The chart depicts how
often, of the total number of times that states offered explanations for their use of prison transfers,
states gave each of these eight rationales. Thus, for example, just under fifty percent of the total
number of explanations given in response to my FOIA requests concerned efforts to manage prison
violence, and roughly five percent concerned overcrowding. Because some states declined to explain why they transferred prisoners and many offered only summary information on the general
reasons they transfer prisoners rather than particular reasons for each transfer, these figures are at
best partially illuminating. To determine the frequency of different transfer types — for example,
the actual rate of compassionate versus punitive transfers — one would need information on individual transfer cases, which most states declined to provide.

Electronic copy available at: https://ssrn.com/abstract=3576088

1850

HARVARD LAW REVIEW

[Vol. 133:1815

punitive sanction, very much like formal banishment,196 to make imprisonment harder and harsher on prisoners who violate prison rules.
When describing transfer practices, state prison officials vacillate between these rationales.
States, moreover, sometimes trade prisoners rather than paying for
another state’s prison beds. In interviews, prison administrators described a system in which they could either lease prison space or agree
to take another state’s prisoners in return for their own.197 Officials opt
for the latter strategy when the purpose of a transfer is to maintain order
by removing a particular prisoner — for example, an especially powerful prisoner — from the population rather than to rent extra prison
space. States, in other words, can negotiate trades to create a specific
prison population. In an article on this phenomenon, a Baltimore Sun
reporter compared corrections officials to “general managers of a baseball team.”198 Echoing this description, one prison official told me that
“usually someone picks up the phone to make transfers happen” and
that transfers work “exactly like baseball.”199
This account underscores the scope of prison officials’ discretion.200
Corrections compacts give prison managers enormous authority to set
the location of punishment and, to some extent, the size and demographics of their prison population. This is remarkable given that
prison managers often describe themselves as passive recipients of a
population whose numbers and characteristics they cannot control. In
fact, prison bureaucrats build and shape their own prison systems and
make enormously consequential decisions about which prisoners deserve imprisonment close to home.
Prison officials appear to use this authority on a small subset of
prisoners. To the extent that states maintained and shared it, the
demographic data on transferred prisoners revealed few trends. The
data did not, for instance, show that young people or African Americans
were transferred much more than other prisoners.201 Consistently, however, transferred prisoners were serving long sentences.202 In Idaho,
two-thirds of transferred prisoners had sentences of at least fifteen
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
196 See supra pp. 1824–25 (distinguishing between “formal” banishment, in which officials punish
a person by sending him outside the jurisdiction of conviction, and effective banishment, in which
cross-border custody is an incidental — though entirely predictable — effect of other prison management decisions).
197 Telephone Interview with Marshall Goff, Staff Att’y, Miss. Dep’t of Corr. (May 24, 2018).
198 Del Quentin Wilber, Prisons Wheel and Deal to Swap Troublemakers; Interstate Compact Lets
Officials Quietly Transfer Prisoners, BALT. SUN (Apr. 24, 1999), https://www.
baltimoresun.com/news/bs-xpm-1999-04-24-9904240296-story.html [https://perma.cc/TPK8-NWJT].
199 Telephone Interview with Marshall Goff, supra note 197.
200 West Virginia, where transfers remain unconstitutional under state law, is the exception to
this claim. See supra pp. 1835–36.
201 See FOIA Data, supra note 13.
202 Id.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1851

years.203 In Indiana, no transferred prisoner was serving fewer than
fifteen years and the average sentence of a transferred prisoner was fiftynine years.204 Long sentences were also the norm in Alaska, Colorado,
Florida, Kentucky, Massachusetts, North Dakota, Oklahoma, Rhode
Island, and South Dakota.205
This trend makes sense at first glance. If interstate transfers are
expensive and difficult to arrange, one would expect corrections officials
to transfer prisoners who would not come back soon. But interstate
parole compacts allow prisoners to be released outside their state of conviction,206 so a transferred prisoner need not return to his home state.
This raises a question about why states are especially likely to transport
long-term prisoners.
The data alone provide no answer. Perhaps these prisoners — who
in theory have less to lose because they have longer before eligibility for
release — commit more infractions within prison and are being punished with transportation.207 Perhaps corrections officials have decided
that prisoners with long sentences deserve to be near their families and
are transferring people who were convicted outside their home state.
Perhaps prisoners with longer sentences develop an approach to incarceration that means they protest less when forced to move and are thus
more likely to be selected for transfers when prison systems become
overcrowded.208 It would take more information and ethnographic research to explore these hypotheses, but it is clear from even a single
snapshot that long-term prisoners are the ones being shuttled around
the American penal estate.
The statistics on prisoner transfers also support broader conclusions
about the politics of prisoner transfers. As noted above, two states —
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
203 See Email from Jeffrey F. Ray, Pub. Info. Officer, Idaho Dep’t of Corr., to author (July 11,
2018) (on file with the Harvard Law School Library).
204 Email from Margaux Auxier, Commc’ns Dir., Ind. Dep’t of Corr., to author (Feb. 7, 2019) (on
file with the Harvard Law School Library).
205 FOIA Data, supra note 13. This list of states could be longer, as it includes only those states
that provided detailed data on the sentence length for each transferred prisoner. Many states that
reported transferring prisoners out of state declined to provide sentencing data.
206 See INTERSTATE COMM’N FOR ADULT OFFENDER SUPERVISION RULES ch. 3, r. 105
(INTERSTATE COMM’N FOR ADULT OFFENDER SUPERVISION 2014); see also supra p. 1832
(describing how interstate parole compacts helped justify interstate transfer compacts).
207 Alternatively, long-term prisoners may commit fewer in-prison offenses because they have
“come grudgingly to accept the prison as their involuntary home.” Robert Johnson & Ania
Dobrzankska, Mature Coping Among Life-Sentenced Inmates: An Exploratory Study of Adjustment
Dynamics, CORRECTIONS COMPENDIUM, Nov./Dec. 2005, at 8, 8 (citing sources for the proposition that the “vast majority of lifers opt to avoid trouble”). Criminologists have long debated how
long-term imprisonment affects behavior. For a classic study of this issue, see STANLEY COHEN
& LAURIE TAYLOR, PSYCHOLOGICAL SURVIVAL: THE EXPERIENCE OF LONG-TERM
IMPRISONMENT (1974).
208 See Johnson & Dobrzankska, supra note 207, at 8 (noting that “lifers” often accept that they
have “little or no control over how they are treated”).

Electronic copy available at: https://ssrn.com/abstract=3576088

1852

HARVARD LAW REVIEW

[Vol. 133:1815

Vermont and Hawaii — are especially stark outliers in their embrace of
interstate prisoner transportation.209 These states share characteristics:
they are small, left-leaning polities where there has been significant resistance to building new prisons. In Vermont, lawmakers have repeatedly rejected the Governor’s efforts to construct new prisons inside the
state.210 Hawaii has witnessed similar debates over proposals to build
new prisons on the islands or to purchase and repurpose the federal jail
in Honolulu.211 At the same time, both states have struggled to decrease
prison admissions.212 Prisoner transportation offers a solution to this
dilemma — a way to reduce the state’s prison population without actually changing the number of prisoners serving state time.
Similar dynamics play out in Wyoming, though there the debate is
less about opposition to prison expansion than a preference for private
imprisonment. In that state, which has a relatively high transfer rate,213
the legislature set aside funds to expand prison capacity in 2017, but
lawmakers disagreed about whether and how to use those funds.214
Since then, the state has signed new contracts with CoreCivic, a private
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
209
210

See supra p. 1843.
See Neal Goswami, New Vermont Prison Proposal, WCAX (Feb. 8, 2019, 6:41
PM), https://www.wcax.com/content/news/New-Vermont-prison-proposal-505578711.html [https://
perma.cc/8RVG-MBA8] (“The Scott administration is again asking lawmakers to consider a new,
larger prison in Vermont. . . . The concept was raised last year, but lawmakers immediately rejected
it.”); Xander Landen, Scott Renews Pitch for New Prison in Franklin County, VTDIGGER (Feb.
7, 2019), https://vtdigger.org/2019/02/07/scott-renews-pitch-new-prison-franklin-county [https://
perma.cc/H2T6-V8CZ] (“Many in the Statehouse have been cool to the idea of building a new prison
facility at a time when Democrats hope to reduce [the] prison population by enacting criminal
justice reforms.”).
211 Mileka Lincoln, Relief for Overcrowding at Hawaii Correctional Facilities Years Away, HAW.
NEWS NOW (Aug. 13, 2018, 8:20 PM), https://www.hawaiinewsnow.com/story/38076042/hawaiisjail-overcrowding-crisis-worsens-causing-tension-among-inmates [https://perma.cc/EJ59-U8ET];
Duane Shimogawa, Hawaii May Build New Prison on Oahu, New Jails Statewide, PAC. BUS.
NEWS (Nov. 18, 2013, 4:55 PM), https://www.bizjournals.com/pacific/news/2013/11/18/hawaii-maybuild-new-prison-on-oahu.html [https://perma.cc/2HRD-B2M5] (noting in 2013 that proposed new
prisons would be “the first built in more than a generation”); State Senate Kills Bill to Buy Federal
Jail in Honolulu, HAW. TRIB.-HERALD (Mar. 21, 2019, 12:05 AM), https://www.hawaiitribuneherald.com/2019/03/21/hawaii-news/state-senate-kills-bill-to-buy-federal-jail-in-honolulu [https://
perma.cc/5NAZ-QDDM].
212 See HAWAII’S IMPRISONMENT POLICY, supra note 129, at 6, 36 (describing overcrowding
in the state’s prisons); Dom Amato, Vermont Officials Cope with Surging Prison Population, WCAX
(July 5, 2019, 6:49 PM), https://www.wcax.com/content/news/Vermont-officials-cope-with-surgingprison-population-512271932.html [https://perma.cc/T748-BZR9] (“Ongoing efforts to reduce
Vermont’s prison population . . . have fallen flat.”); Hawaii Struggles as Overcrowding in Corrections Worsens, CORRECTIONAL NEWS (May 2, 2018), http://correctionalnews.com/2018/05/02/
hawaii-struggles-overcrowding-corrections [https://perma.cc/5TY2-GTQ2].
213 See supra fig.2, p. 1845 (showing that Wyoming held nearly a third of its inmates outside the
state in 2005 and remains a top prisoner exporter today).
214 Laura Hancock, Lawmakers Will Consider Private Prison Company to Build a New State
Pen, CASPER STAR TRIB. (Apr. 8, 2017), https://trib.com/news/state-and-regional/govt-andpolitics/lawmakers-will-consider-private-prison-company-to-build-a-new/article_44e8d6b2-df4c5ae9-8cf1-da8bda51ac30.html [https://perma.cc/KKM6-GYF7].

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1853

prison company,215 to hold prisoners out of state.216 As these examples
illustrate, transfers work in different ways in blue and red states, but
help both navigate the local politics of prison construction.217
Transfers also ease anxiety about prison crowding. Although national data show no consistent relationship between crowding and transfer rates over time — nationally, the use of transfers seems to persist
even when state prison populations decline218 — prison officials do appear to turn to transfers when public concerns about crowding grow
particularly acute. As noted in Part I, Hawaii’s now-entrenched “mainland incarceration policy” was initially a response to overcrowding in
the early days of mass incarceration.219 More recently, Wyoming cited
crowding to explain its continued reliance on interstate transfers,220 and
California turned to transfers to downsize its famously overcrowded
prison system.221
California’s story demonstrates how transfers can interact with
prison litigation. In the 2011 case Brown v. Plata,222 the Supreme Court
upheld a cap on California’s bloated prison population that the lower
court had imposed after concluding that the state could not provide constitutionally adequate healthcare while operating its prisons at nearly
200% of their design capacity.223 In the run-up to that ruling, California
had begun transferring large numbers of prisoners — ultimately more
than 10,000, some six percent of the state’s total prison population and
twenty-five percent of the shift needed to meet the population cap224 —
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
215 State Prepares for Inmate Move with Prison Building Problems, AP NEWS (May 3, 2017),
https://apnews.com/91787b83de03430baeba88e670ed5b3b [https://perma.cc/VG4K-6HLX].
216 Shane Sanderson, Wyoming Transfers 88 Prison Inmates to Mississippi Facility to Ease Space
and Staffing Concerns, BILLINGS GAZETTE (Apr. 13, 2018), https://billingsgazette.com/news/stateand-regional/wyoming/wyoming-transfers-prison-inmates-to-mississippi-facility-to-ease-space/
article_c8bdf3af-ca69-5dc2-bab2-b618e3ee96aa.html [https://perma.cc/TE86-3BJE].
217 For a recent account of the politics of prison location, see generally JOHN M. EASON, BIG
HOUSE ON THE PRAIRIE: RISE OF THE RURAL GHETTO AND PRISON PROLIFERATION (2017)
(arguing that small, stigmatized towns seek out prisons not only to stabilize their economies and
provide jobs but also to “save their reputation[s],” id. at 17).
218 See supra pp. 1842–43.
219 See HAWAII’S IMPRISONMENT POLICY, supra note 129, at 36 (“The immediate necessity of
dealing with prison overcrowding gave rise to the use of Hawaii’s mainland incarceration policy.”);
see also James Cullen, The History of Mass Incarceration, BRENNAN CTR. FOR JUST., (July
20, 2018), https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration
[https://perma.cc/D99G-V4CY] (documenting the growth in prison populations between 1950 and
2016).
220 Sanderson, supra note 216.
221 See supra note 138 and accompanying text.
222 563 U.S. 493 (2011).
223 Id. at 502. In the lower court, a three-judge panel had ordered the California Department of
Corrections and Rehabilitation to reduce the state prison population to 137.5% of its design capacity
within two years. Id. at 509–10.
224 See MAGNUS LOFSTROM & BRANDON MARTIN, PUB. POLICY INST. OF CAL., PUBLIC
SAFETY REALIGNMENT: IMPACTS SO FAR (2015), https://www.ppic.org/publication/public-

Electronic copy available at: https://ssrn.com/abstract=3576088

1854

HARVARD LAW REVIEW

[Vol. 133:1815

to prisons outside the state.225 Seven years later, after a decline in the
state prison population, the number of out-of-state prisoners had fallen
to less than 3000.226 By 2019, the head of California’s Contract Beds
Unit, a division of the Department of Corrections “whose mission is to
transfer inmates out of state for the purpose of temporarily alleviating
overcrowding,”227 reported that the state was budgeted to be “out of the
interstate business” by the middle of that year.228
California’s turn to prisoner transfers is a less well-known response
to Plata than “realignment,” a package of reforms that shifted state prisoners to county and local jails.229 But interstate transfers were a critical
part of the state’s effort to comply with the ruling, and like realignment,
they demonstrate that court-ordered population limits can lead to prisoners’ relocation rather than decreased reliance on prisons. As one
prison official explained, interstate transfers are “a good outlet for a
population cap.”230
These accounts suggest that prisoner transportation is a tool in times
of political crisis. In small states, transfers are a safety valve in a system
where the appetite to build state prisons does not match the drive to
incarcerate. In big, overcrowded prison systems, transfers are a stopgap
measure when courts mandate population limits. Not all interstate
transfers can be explained on these grounds, and not all states rely
on transfers to break political stalemates. One might wonder, for instance, why Massachusetts and Rhode Island do not use transfers
more.231 But the pattern of transfers in states like Vermont, Hawaii,
Wyoming, and California demonstrates that prisoner transportation is
as much a reflection of the political climate as it is a mechanism for
internal prison management.
Ultimately, transfers are a way to operate state prisons without
changing practices at the front end of the criminal justice system.
Though they seem different, transfers to placate opponents of prison
construction and transfers to reduce crowding are both ways to confine
people when prison admissions exceed prison capacity. These strategies
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
safety-realignment-impacts-so-far [https://perma.cc/4VK5-BGKH] (noting that Plata required
California to reduce its state prison population by almost 40,000 people).
225 Scott Graves, California Prepares to Say Goodbye to Out-of-State Prisons, CAL. BUDGET &
POL’Y CTR. (July 26, 2018), https://calbudgetcenter.org/blog/california-prepares-to-say-goodbye-toout-of-state-prisons [https://perma.cc/MGT9-QSGT].
226 Id.
227 Out of State Prison Facilities, CAL. DEP’T CORRECTIONS & REHABILITATION,
https://www.cdcr.ca.gov/visitors/CA-out-of-state-facilities [https://perma.cc/2YDW-LJA2].
228 Telephone Interview with J.W. Moss, supra note 3.
229 See, e.g., LOFSTROM & MARTIN, supra note 224 (describing the effects of realignment).
230 Telephone Interview with J.W. Moss, supra note 3.
231 One tentative thesis is that prison officers and their unions have objected to transfers in these
states. See Eisenberg, supra note 132, at 93–94 (discussing prison officers’ resistance to prison
downsizing); infra notes 266–267 and accompanying text (same).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1855

allow prosecutors and judges to send more people to prison than the
state can safely or constitutionally confine. If Vermont, Hawaii, or
Wyoming had to house all of its own prisoners in existing state facilities,
the state’s prisons would be too full to function, and, as Plata suggests,
would likely run afoul of the Eighth Amendment. And if Delaware —
which recently transferred more than 300 prisoners to Pennsylvania
to reduce mandatory overtime payments to prison officers232 — could
not outsource its prisoners, the state would have to increase its corrections budget, which, given Delaware’s balanced budget requirement,
may mean cutting funds elsewhere.233
Focusing on transfers thus exposes a deeper constitutional deficiency
in American prisons than one can glean from a survey of cases on harsh
prison conditions. Interstate transfers reveal the degree to which
states — including those that are not subject to structural injunctions
or media coverage — struggle to ensure prison safety, pay prison
officers, and meet basic constitutional requirements.234 Prisoner trades
show that some states could not run constitutional prison systems if they
could not export their prisoners. Transfers also demonstrate that small
states with reputations for relatively hospitable prisons and low incarceration rates — Vermont, Hawaii, and New Hampshire have some of
the lowest in the nation235 — are overincarcerating insofar as they sentence more people to prison than they can legally, politically, or actually
afford to hold.
III. REGULATING THE PRISONER TRADE
The preceding Parts expose a puzzle about American imprisonment.
On one hand, lawmakers have expended considerable energy building a
custodial network in which prisoners can be traded, shared, and sold.
On the other hand, prison officials export fewer prisoners than they
could. Cross-border transfers are a critical tool of prison management,
but prison governance is not nearly as integrated as the architects
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
232
233

See Peterson & Parra, supra note 188.
See Ronald K. Snell, State Constitutional and Statutory Budget Requirements for Balanced
Budgets, NAT’L CONF. ST. LEGISLATURES (Mar. 2004), https://www.ncsl.org/research/fiscalpolicy/state-constitutional-and-statutory-requirements-fo.aspx [https://perma.cc/585C-Q9RD].
234 The claim here is not that constitutional requirements are especially onerous, but rather that
states struggle to meet even a minimal constitutional baseline given the numbers of people being
funneled into state prison systems. For a discussion of how and why the Eighth Amendment fails
to serve as a meaningful check on the harsh conditions found in many American prisons and jails,
see Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV.
881, 935–64 (2009).
235 See LAUREN-BROOKE EISEN & JAMES CULLEN, BRENNAN CTR. FOR JUSTICE
UPDATE: CHANGES IN STATE IMPRISONMENT RATES 4 tbl.1 (2016), https://www.
brennancenter.org/sites/default/files/analysis/UpdateChangesinStateImprisonment.pdf
[https://
perma.cc/L67E-JGFC]; Peter Wagner & Wendy Sawyer, States of Incarceration: The Global Context
2018,
PRISON
POL’Y
INITIATIVE
(June
2018),
https://www.prisonpolicy.org/
global/2018.html [https://perma.cc/5R5H-LQ6B].

Electronic copy available at: https://ssrn.com/abstract=3576088

1856

HARVARD LAW REVIEW

[Vol. 133:1815

of prison compacts imagined. This fallow legal regime raises questions
about how territorial punishment ought to be.
Answering those questions requires an account of the normative
stakes of prisoner transportation. This Part maps the costs, benefits,
and implicit assumptions of the prisoner trade. It begins with the
practical harms: increased distance from home, worse conditions, reduced access to courts and reentry programs, and perverse incentives to
incarcerate. It then turns to the more formal objection: a state’s power
to punish extends only to its jurisdictional and territorial boundaries.
To be legitimate, punishment for state crimes must take place within
state lines.
After airing that objection, Part III examines the upsides of mobility,
which include better and more efficient delivery of services to a group
of people in desperate need of healthcare, housing, and access to family.
The Article concludes by proposing a regulatory framework that would
balance these concerns and bring courts into the debate over extraterritorial punishment.
A. The Harms
Political actors have long recognized that it can be harmful to ship
prisoners beyond their jurisdiction of conviction. The pains of longdistance punishment were invoked to justify transportation in the
eighteenth century and then to oppose it when the penitentiary emerged
as an alternative.236 In 1802, Jeremy Bentham defended his proposal
for the panopticon on the ground that transportation punishment, then
the reigning noncapital sanction, was harsh, ineffective, and “flagrantly
reprehensible.”237 Seventy years later, when Georgia added a transportation ban to its constitution, state legislators condemned the ongoing
practice of convict leasing as a despotic and “barbarous” act.238
These critiques still resonate. Today, as in 1802, transportation separates prisoners from their families. Of course interstate transfers are
not the only aspect of imprisonment that severs family ties. Imprisonment is intentional displacement, a sanction meant to remove people
from their communities. If this is unacceptable, the real objection is to
prisons, not transfers.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
236

See Ekirch, supra note 16, at 1286–87; Kercher, supra note 16, at 530–31; Franklin, supra note

27.

237 Jeremy Bentham, Panopticon Versus New South Wales: Or, the Panopticon Penitentiary
System, and the Penal Colonization System, Compared, reprinted in 4 THE WORKS OF JEREMY
BENTHAM, 173, 186 (Edinburgh, John Bowring ed., 1843); see also Jeremy Bentham, Principles
of Penal Law, reprinted in 1 THE WORKS OF JEREMY BENTHAM, 367, 420–23 (Edinburgh, John
Bowring ed., 1843) (defending imprisonment on the ground that punishments ought not be more
harmful than necessary, id. at 420); John Hirst, The Australian Experience: The Convict Colony, in
THE OXFORD HISTORY OF THE PRISON, supra note 18, at 263, 274 (noting that Bentham, “the
most persistent” critic of convict colonies, saw transportation punishment as an inhumane alternative to the panopticon and a threat to “his version of the penitentiary”).
238 SMALL, supra note 35, at 96.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1857

State borders are also a rough proxy for proximity to home. Prisoners are not always convicted where they live, and it is the site of a crime
rather than one’s residence that determines where a criminal prosecution may lie. Even when people are convicted at home, moreover, states
vary dramatically in size. Being imprisoned anywhere in California is
very different from being imprisoned anywhere in New Hampshire.
Given the arbitrariness of state lines, a prisoner from Chicago might
prefer incarceration in Hammond, Indiana, to a prison in Springfield,
Illinois.
For all of these reasons, the real harm of imprisonment is distance
from home, which is not unique to out-of-state incarceration.239 There
is no question, however, that interstate transfers result in extraordinary
dislocation — more, on net, than would occur in the absence of interstate
agreements. Take Hawaii prisoners in custody in Arizona.240 These
prisoners live thousands of miles from their families, as do prisoners
shipped from Alaska to Colorado, New Hampshire to Arizona, and
Florida to Washington State.241 As Part II noted, the average distance
of an interstate prison transfer is more than 1200 miles, which is roughly
equivalent to the twenty-hour drive from Florida to Rhode Island.242
This figure is striking given the relationship between imprisonment
and poverty. Prisoners are “dramatically concentrated at the lowest
ends of the national income distribution”243 — one recent study concluded that prisoners “had a median annual income of $19,185 prior to
their incarceration”244 — and prisoners’ families are disproportionately
likely to be poor.245 For low-income families, even the cost of phone

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
239 Although courts have upheld extraordinary restrictions on prison visits, they have also long
recognized that prisoners retain some right to see their family members. See Overton v. Bazzetta,
539 U.S. 126, 131 (2003) (“We do not hold, and we do not imply, that any right to intimate association
is altogether terminated by incarceration . . . .”); Turner v. Safley, 482 U.S. 78, 95 (1987) (holding
that the right to marriage survives incarceration); Procunier v. Martinez, 416 U.S. 396, 408–09 (1974)
(invalidating a mail censorship regulation on the ground that it implicated the First and Fourteenth
Amendment rights of people outside prison).
240 See FOIA Data, supra note 13.
241 See infra Appendix, tbl.4.
242 See supra p. 1846.
243 Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-incarceration
Incomes of the Imprisoned, PRISON POL’Y INITIATIVE (July 9, 2015), https://www.
prisonpolicy.org/reports/income.html [https://perma.cc/XW4V-T9G6].
244 Id. This is “41% less than non-incarcerated people of similar ages.” Id. (emphasis omitted).
245 See Half of Americans Have Family Members Who Have Been Incarcerated, EQUAL JUST.
INITIATIVE (Dec. 11, 2018), https://eji.org/news/half-of-americans-have-family-members-whohave-been-incarcerated [https://perma.cc/8EXX-C9WD] (“[T]he proportion of people who have had
an immediate family member incarcerated increases as income declines.”).

Electronic copy available at: https://ssrn.com/abstract=3576088

1858

HARVARD LAW REVIEW

[Vol. 133:1815

calls from prison can be a struggle.246 The cost of a 1200-mile trip can
be prohibitive.247
Again, this is a problem of degree; distance is always an impediment
to prison visitation. But travel costs become especially inhibitory when
prisoners cross state borders. In large states including California, New
York, and Texas, the Department of Corrections runs subsidized (sometimes free) bus services between prisons and major cities.248 These bus
systems develop because a critical mass of prisoners from cities are confined in rural state prisons.249 The number of prisoners transferred to
other states, by contrast, is relatively small,250 which means there is no
analogous economy of scale to prompt an interstate bus system. Here,
interstate transfers pose a special harm because the infrastructure built
in and around prisons assumes in-state incarceration.
A similar concern arises with reentry programs. Interstate transfers
remove prisoners from state-specific reentry and vocational programs —
for example, electrical-trade training programs that culminate in a job
certification from the state Department of Labor251 — that ease prisoners’ return to society and improve their job prospects upon release. There
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
246 There is considerable advocacy and litigation over the cost of prison phone calls. See, e.g.,
Global Tel*Link v. FCC, 866 F.3d 397, 412 (D.C. Cir. 2017) (holding that the FCC lacked statutory
authority to cap intrastate prison call rates); Peter Wagner & Alexi Jones, State of Phone Justice:
Local Jails, State Prisons and Private Phone Providers, PRISON POL’Y INITIATIVE (Feb. 2019),
https://www.prisonpolicy.org/phones/state_of_phone_justice.html#disparity_table_excerpt
[https://perma.cc/2BGC-ADEK] (listing prison and jail call rates in all fifty states). Although rates
vary, the cost to call home from an in-state prison may be as much as $4.80 for fifteen minutes. See
Wagner & Jones, supra. This is a considerable sum given that prisoners earn, on average, fourteen
to sixty-three cents per hour for their labor in typical prison jobs. See Wendy Sawyer, How Much
Do Incarcerated People Earn in Each State?, PRISON POL’Y INITIATIVE (Apr. 10, 2017),
https://www.prisonpolicy.org/blog/2017/04/10/wages [https://perma.cc/Z7G2-X5UB].
247 See, e.g., Eli Hagar & Rui Kaneya, The Prison Visit that Cost My Family $2,370, MARSHALL
PROJECT (Apr. 12, 2016, 7:00 AM), https://www.themarshallproject.org/2016/04/12/the-hawaiiprison-visit-that-cost-my-family-2-370 [https://perma.cc/WAF5-PXQY] (describing the cost of a
visit to a Hawaii prisoner held in Arizona).
248 E.g., Dionna Harding, Bus Trips to Correctional Facilities in New York State, LEGAL
BEAGLE (Oct. 18, 2017), https://legalbeagle.com/12398747-bus-trips-to-correctional-facilities-innew-york-state.html [https://perma.cc/B8LV-4BRF]; Get on the Bus Program, CAL. DEP’T
CORRECTIONS & REHABILITATION, https://www.cdcr.ca.gov/visitors/visitors/get-on-the-bus
[https://perma.cc/5VQ5-KE62]; TEX. PRISON SHUTTLE, https://www.texasprisonshuttle.org
[https://perma.cc/ZV7W-L42Q]; Welcome to the Family Express!, CTR. FOR RESTORATIVE JUST.
WORKS, https://familyexpress.us [https://perma.cc/K6PJ-YEEZ]. Though these shuttles facilitate
visitation, they have been criticized as an unpleasant, ineffective alternative to building prisons
closer to the cities from which most prisoners come. See Johnna Christian, Riding the Bus: Barriers
to Prison Visitation and Family Management Strategies, 21 J. CONTEMP. CRIM. JUST. 31, 40–41
(2005).
249 Thanks to Professor Rachel Barkow for making this point about bus systems.
250 See supra p. 1842.
251 See, e.g., Programs, N.Y. ST. DEP’T OF CORRECTIONS & COMMUNITY SUPERVISION,
https://doccs.ny.gov/programs [https://perma.cc/BUU4-SBGA] (listing vocational training
programs).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1859

is also significant evidence that visits from family reduce recidivism by
helping prisoners maintain ties to the communities to which they will
return.252 To the extent that interstate transfers deter visits, they increase that recidivism risk.
Finally, transfers affect the conditions of incarceration. Although
prison conditions depend on highly localized features of institutional
culture such as which warden is in charge,253 it is possible to make generalizations about state penal systems. States incarcerate people at different rates — strangely enough, U.S. News & World Report ranks the
“best states for corrections” on this metric254 — and with different degrees of racial disparity.255 States have better or worse prison programs256 and pay prisoners different wages for their labor, from nothing
in Arkansas to two dollars an hour in New Jersey.257 Some state prison
systems are especially overcrowded258 or short-staffed,259 and many
states (most recently Alabama) have been investigated and enjoined for
failure to ensure minimally adequate living conditions.260 Prisoners
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
252

See, e.g., MINN. DEP’T OF CORR., THE EFFECTS OF PRISON VISITATION
OFFENDER
RECIDIVISM
iii
(2011),
https://mn.gov/doc/assets/1111MNPrisonVisitationStudy_tcm1089-272781.pdf [https://perma.cc/UVQ7-ZMZ9] (collecting prior
studies and, based on a four-year study of 16,420 Minnesota prisoners, concluding that “visitation
significantly decreased the risk of recidivism”); Christian, supra note 248, at 33; Alex Friedmann,
Lowering Recidivism Through Family Communication, PRISON LEGAL NEWS (Apr. 15,
2014),
https://www.prisonlegalnews.org/news/2014/apr/15/lowering-recidivism-through-familycommunication [https://perma.cc/KLM2-4KEL]; cf. Brandon v. State Dep’t of Corr., 938 P.2d 1029,
1032 (Alaska 1997) (assessing though not resolving an Alaska prisoner’s claim that his transfer to
Arizona inhibited visits from family and therefore violated his right to rehabilitation under the
Alaska state constitution).
253 For classic criminological studies of the relationship between prison management and prison
conditions, see JAMES JACOBS, STATEVILLE (1977); GRESHAM M. SYKES, THE SOCIETY OF
CAPTIVES: A STUDY OF A MAXIMUM SECURITY PRISON (1958). For recent examples, see BEN
CREWE, THE PRISONER SOCIETY: POWER, ADAPTATION, AND SOCIAL LIFE IN AN ENGLISH
PRISON (2009); ALISON LIEBLING, PRISONS AND THEIR MORAL PERFORMANCE (2004).
254 Corrections Rankings: Measuring the Efficiency of State Prison Systems, U.S. NEWS
& WORLD REP., https://www.usnews.com/news/best-states/rankings/crime-and-corrections/
corrections [https://perma.cc/4F7B-CN6W]. Note that two of the “best” prison systems in this ranking are Hawaii and Vermont, both of which transfer relatively high numbers of their state prisoners
to out-of-state facilities. See supra fig.2, p. 1845.
255 The Facts: State-by-State Data, SENTENCING PROJECT, https://www.sentencingproject.
org/the-facts/#map?dataset-option=BWR [https://perma.cc/SR67-3GTL] (showing racial disparities
in state incarceration rates).
256 See, e.g., Margaret diZerega, College in Prison, VERA INST. FOR JUST.,
https://www.vera.org/projects/college-in-prison [https://perma.cc/8SHW-68GL] (mapping the availability of college programs in prison by state).
257 Sawyer, supra note 246.
258 The California state prison system prior to the population cap upheld in Brown v. Plata is a
good example.
259 See, e.g., Peterson & Parra, supra note 188 (describing thinly staffed prisons in Delaware).
260 U.S. DEP’T OF JUSTICE & U.S. ATT’Y’S OFFICES FOR THE N., MIDDLE, AND S. DISTS.
OF ALA., INVESTIGATION OF ALABAMA’S STATE PRISONS FOR MEN (2019), https://assets.
documentcloud.org/documents/5793211/DOJ-Report-on-Alabama-Prisons.pdf
ON

Electronic copy available at: https://ssrn.com/abstract=3576088

1860

HARVARD LAW REVIEW

[Vol. 133:1815

transferred into these failing prison systems face a significant change in
their quality of life. To be sure, conditions vary between facilities within
state prison systems too. But insofar as there are statewide prison cultures and statewide prison conditions, prisoner transportation can aggravate the “pains of imprisonment.”261
Transfers may also increase prison violence. Although prison officials cite violence reduction as a reason to remove prisoners, a steady
stream of anecdotal evidence indicates that transfers heighten pressure
inside penal institutions. In 2004, prisoners at a private prison in
Colorado rioted after “growing tension” over “the presence of . . . inmates recently shipped in from Washington and Wyoming to fill
beds.”262 Three years later, prisoners from Arizona staged an uprising
after being transferred to an Indiana state prison.263 In 2010, a large
group of Vermont prisoners confined in a private prison in Tennessee
“were controlled with chemical spray” after refusing to return to their
cells.264 These stories suggest that transfers trigger violence by dislocating prisoners and upsetting social hierarchies built around geographic
identification. They also expose a revolving-door phenomenon in which
transfers to ease violence in one place beget it in another.
The concern about prison conditions grows as more prisoners are
transferred. Take a state with expensive rehabilitative programs or
highly paid correctional officers that decides to save money by sending
its prisoners to a state with fewer programs or underpaid employees,
and, consequently, worse conditions. Or consider a state where a sudden
legal change — for example, a court-ordered improvement in prison
conditions — makes it attractive to ship prisoners to a neighboring state
rather than incarcerating fewer people or paying for better prisons.
Nothing in federal law prevents such a state from sending all of its prisoners to the harsher prison system, and nothing prevents many states
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
[https://perma.cc/6U5C-EZB4]; see also Debbie Elliott, Alabama Faces Deadline to Address Dangerous
and
Deadly
Prison
Conditions,
NPR
(May
21,
2019,
9:49
AM),
https://www.npr.org/2019/05/21/725066218/alabama-faces-deadline-to-address-dangerous-anddeadly-prison-conditions [https://perma.cc/EB2C-9GTP]. For a history of structural injunctions
against state prison systems, see MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL
POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S
PRISONS 39–43 (1998).
261 See SYKES, supra note 253, at 63 (coining this famous phrase).
262 Alan Prendergast, Crowley Prison Riot: New Details of Unheeded Warnings Emerge in
Epic Lawsuit, WESTWORD (Dec. 21, 2011, 12:02 PM), https://www.westword.com/news/crowleyprison-riot-new-details-of-unheeded-warnings-emerge-in-epic-lawsuit-5863180 [https://perma.cc/
LC3W-7J3X].
263 Inmates Riot at Indiana Prison, CBS NEWS (Apr. 24, 2007, 3:28 PM),
https://www.cbsnews.com/news/inmates-riot-at-indiana-prison [https://perma.cc/59J8-UVQ8].
264 Neal P. Goswami, 35 Vermont Inmates Riot in Tennessee Prison, BENNINGTON BANNER
(May 13, 2010, 9:13 PM), https://www.benningtonbanner.com/stories/35-vermont-inmates-riot-intennessee-prison,77152 [https://perma.cc/BSH9-HS38].

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1861

from transferring their prisoners en masse.265 Constitutional law thus
permits a perverse dynamic in which states overincarcerate with impunity and those with the cheapest prison systems become, in effect, wardens for the rest of the country.
One might ask why this sort of national migration has not taken
place. It may be that well-organized prison officer unions have resisted
interstate prisoner transfers in the name of job protection.266 In a discussion about transfers, one prison staff member told me that “corrections officers would push back if [the state began] transferring large
numbers.”267 State correctional agencies may not have recognized the
full extent of their power to outsource punishment or may be proud of
their prisons and reluctant to send prisoners to systems they perceive as
worse than their own.268 States may not have funded and built the full
physical and informational infrastructure — buses, planes, computer
databases, contracts, lawyers, correctional administrators — required to
transfer and monitor tens of thousands of prisoners.
Whatever the source of the resilience of state borders, it is not law
that is limiting transfers. To the contrary, current doctrine insulates
states from the costs of their incarceration policies, and states like
California, Delaware, Hawaii, Vermont, and Wyoming have taken
note.269 As practices in these states illustrate, one of the harms of prison
compacts is that they connect penal institutions in a way that can skew
incentives in state criminal justice systems. Transfers make the postconviction criminal legal system national, while the preconviction system remains a product of state law and local enforcement practices.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
265
266

See supra section I.B, pp. 1830–38 (discussing the law of prison transfers).
This sort of organized opposition to prison transfers has occurred in other contexts. See, e.g.,
Kaufman, supra note 185, at 81–85 (describing efforts by prison officers’ unions and other state
correctional officials to resist international prisoner transfers). For an account of the power and
lobbying efforts of prison officers’ unions, see Eisenberg, supra note 132, at 74, 93–96 (“Because of
their political clout, officers’ unions historically have been able to mobilize widespread support for
their aims.” Id. at 74.).
267 Telephone Interview with Marshall Goff, supra note 197.
268 Ethnographers have observed this dynamic in prisons. See, e.g., EMMA KAUFMAN, PUNISH
AND EXPEL: BORDER CONTROL, NATIONALISM, AND THE NEW PURPOSE OF THE PRISON
99 (2015) (noting, in a study of British prisons, that prison officers expressed a “complex blend of
protectiveness, defensiveness, and ownership” over prisoners’ wellbeing). Recent efforts by correctional administrators to limit or oppose solitary confinement also suggest that some states are concerned about the relative harshness of their prison systems. See, e.g., Cheryl Corley, North Dakota
Prison Officials Think Outside the Box to Revamp Solitary Confinement, NPR (July 31, 2018, 5:01
AM), https://www.npr.org/2018/07/31/630602624/north-dakota-prison-officials-think-outside-thebox-to-revamp-solitary-confineme [https://perma.cc/GH6E-QSY6] (describing the North Dakota
Director of Corrections’s effort to reduce “the use of isolation”); John Lam, Humane Approach to
Solitary Confinement, SAN QUENTIN NEWS (Dec. 1, 2015), https://sanquentinnews.com/humaneapproach-solitary-confinement [https://perma.cc/ASY4-2C2H] (describing similar efforts in
Washington State).
269 See supra section II.C, pp. 1848–55 (noting that these states transfer significant numbers of
their prisoners out of state).

Electronic copy available at: https://ssrn.com/abstract=3576088

1862

HARVARD LAW REVIEW

[Vol. 133:1815

This mismatch between the jurisdictional boundaries at the front and
back of state criminal justice systems threatens to promote overincarceration and channel prisoners into cheaper, worse prisons.
The jurisdictional gap between criminal law and prisons also causes
basic legal problems for transferred prisoners. Part I noted that prisoners sent across state lines remain in the constructive custody of their
home state.270 As a practical matter, this means that transferred prisoners must litigate habeas suits in their jurisdiction of conviction rather
than the court systems where they are held. Transferred prisoners have
to navigate parole hearings from afar, often in absentia, and are subject
to the rules for sentence reduction — known as “good time” credits —
of the state in which they were convicted.271 So, for example, a prisoner
convicted in California and sent to Florida has to sue in California court
to contest his conviction and has to defend his eligibility for parole in
California from across the country. He must follow California’s good
time regulations and, because Florida has different prison programs,
will likely lose good time credit (that is, end up with a longer sentence)
by virtue of his transfer.272 If assaulted or denied access to a law library,
that prisoner has to file an internal grievance before bringing a civil
rights suit — but first, he has to determine whether California or Florida
grievance procedures apply, a question on which courts disagree.273
Transfers also trigger legal disputes over medical care and impede
access to counsel. Although compacts typically require sending states to
bear the cost of a prisoner’s serious medical expenses, states debate
when a condition is grave enough to warrant payment. In an ongoing
case in Illinois, for example, a diabetic prisoner from New Jersey has
alleged that his medical care was unconstitutionally delayed, leading to
serious physical harm. In explaining that delay, the Illinois Department
of Corrections has claimed that its surgeons were waiting for approval
from New Jersey.274 In another case — this time, involving a transfer
from Illinois to Florida — a prisoner lost contact with her lawyers and
family when she disappeared from both states’ inmate locator systems
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
270
271
272

See supra notes 80–90 and accompanying text.
See supra note 89.
See Telephone Interview with J.W. Moss, supra note 3 (describing variation between states’
good time requirements).
273 The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2012), requires prisoners to exhaust
their administrative remedies before bringing § 1983 suits concerning prison conditions. The
Supreme Court has interpreted this mandatory exhaustion requirement narrowly. See, e.g., Ross v.
Blake, 136 S. Ct. 1850, 1855 (2016) (invalidating the Fourth Circuit’s “special circumstances” exception to the exhaustion requirement). As a result, prisoners must navigate the (often byzantine)
grievance procedures in prison before turning to courts for relief. See cases cited supra notes 87,
143 (collecting split authority on which state’s grievance procedures apply in the case of an interstate transfer).
274 Defendants’ Motion for Summary Judgment, supra note 88, at 33.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1863

during and after her relocation.275 Practitioners report that the problem
of “disappearing prisoners” is common in transfer cases.276 As these
examples demonstrate, transfers create a dizzying array of consequences
for the length of prisoners’ sentences and their access to courts.
These legal dilemmas distinguish interstate transfers from imprisonment in the federal prison system. In many ways, interstate incarceration looks like federal incarceration: prisoners can be shipped anywhere
in the country, often far from family. But the Bureau of Prisons attempts
to keep federal prisoners within 500 miles of home,277 less than half the
distance of the average interstate transfer. And interstate transfers
involve a jurisdictional border crossing that federal transfers do not.
Federal prisoners are subject to one regulatory regime promulgated by
the Bureau of Prisons and governed by federal law. As a result, they
need not grapple with conflicts of law concerning habeas, entitlement to
reentry programs, liability for medical care costs, and rules for discretionary release. Because its pre- and postconviction boundaries align,
the federal prison system also lacks the pathological dynamics around
outsourcing that are evident in states like Hawaii and Vermont.278 In
short, there are distinct harms that arise from crossing a jurisdictional
boundary, which compound the difficulties of distance from home.
The most abstract of these harms concerns the legitimacy of criminal
punishment. To this point, the list of problems created by prison transfers has been functional: difficulty seeing family, delayed medical care,
and so on. Interstate transfers also impose a more formal — though no
less acute — challenge to one dominant theory of domestic criminal law.
In the classic liberal account of punishment, a state’s power to imprison flows from a democratic decision to make certain conduct criminal and to authorize incarceration as the sanction for that crime.279 This
theory treats punishment as legitimate because it is tied to the collective
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
275
276
277

Telephone Interview with Nicole Schult, Uptown People’s Law Ctr. (Jan. 15, 2020).
Id.
See FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM STATEMENT,
SECURITY DESIGNATION AND CUSTODY CLASSIFICATION MANUAL, ch. 2, at 5 (1999); see also
FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, CHANGE NOTICE, INMATE SECURITY
DESIGNATION AND CUSTODY CLASSIFICATION (2019), https://www.bop.gov/policy/
progstat/5100_008cn.pdf [https://perma.cc/8W7N-5Z3R].
278 See supra p. 1855.
279 Philosophers of punishment have explored the relationship between democratic theory and
the public character of criminal law. See, e.g., R.A. DUFF, PUNISHMENT, COMMUNICATION,
AND COMMUNITY 36–39 (2001) (discussing liberal theories of punishment predicated on the social
contract); R.A. Duff, A Criminal Law for Citizens, 14 THEORETICAL CRIMINOLOGY 293, 301
(2010) (“For a republican, law must be our law as citizens, a ‘common’ law that we make for ourselves, not a law made for us and imposed on us by a sovereign; citizens must be able to understand
themselves as authors as well as addressees of the law.”); Zedner, supra note 11, at 43–45 (“The
historically dominant account of the state as a sovereign who issues commands loyally obeyed by
obedient subjects has been overlaid by liberal democratic accounts of the relationship between state
and citizen as based upon mutual agreement or contract.” Id. at 44.).

Electronic copy available at: https://ssrn.com/abstract=3576088

1864

HARVARD LAW REVIEW

[Vol. 133:1815

choices of a bounded community. Traditionally, those boundaries
have been territorial. (Thus Mississippi’s jurisdiction to punish crime
arises from the fact that a crime was committed in Mississippi.) The
boundaries of criminal law need not be territorial; in Roman law, for
example, criminal jurisdiction arose from a person’s citizenship and followed Roman citizens wherever they went.280 But in the United States,
much domestic criminal law operates on the idea that a state’s penal
power stems from and stops at state lines.281 Criminal law scholars refer
to this idea as the “principle of territoriality.”282
In such a legal regime, it is unlawful to imprison someone if the
criminal code does not permit imprisonment as a sanction — say, for a
minor offense where the authorized punishment is a fine — because doing so would be undemocratic. And it is unlawful to imprison someone
for conduct committed outside the democratic community that has
deemed the action criminal — say, for taking drugs in another state or
selling drugs in another country — because doing so would violate a
territoriality norm. There are workarounds when these rules prove too
constraining, such as laws authorizing extradition283 and making it a
domestic criminal offense to commit a crime abroad.284 But their existence illustrates the point: the baseline assumption in many areas of
domestic criminal law is that the authority to punish derives from a
social compact, applies to members of that compact, and extends to the
territorial borders of their community.285 Where punishment exceeds
these boundaries, it is illegitimate and unauthorized in the absence of a
legal fix.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
280 Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 HASTINGS L.J. 1155, 1155
(1971).
281 Zedner, supra note 11, at 46 (“In . . . classical accounts of the power of the sovereign . . . , the
scope of domestic criminal law is . . . clearly bounded. It extends only to the borders of the sovereign
realm . . . — the so-called ‘principle of territoriality.’”). This concern about extraterritorial punishment also surfaces in the Supreme Court’s punitive damages jurisprudence. See Catherine M.
Sharkey, Federal Incursions and State Defiance: Punitive Damages in the Wake of Philip Morris v.
Williams, 46 WILLAMETTE L. REV. 449, 457 (2010) (discussing the “persistent appearance of the
extraterritoriality concern” in cases limiting the reach of punitive damages awards).
282 Zedner, supra note 11, at 46; see also Perkins, supra note 280. Note that this is a term of art
in criminal law, distinct from uses of the term “territoriality” in other fields.
283 See 18 U.S.C. § 3181–3196 (2012) (defining conditions under which extradition is permitted);
id. § 3184 (authorizing U.S. district courts to issue warrants for individuals subject to extradition
under a treaty or convention to which the United States is a party); CHARLES DOYLE, CONG.
RESEARCH SERV., RS22702, AN ABRIDGED SKETCH OF EXTRADITION TO AND FROM THE
UNITED STATES (2016) (summarizing the requirements for extradition).
284 See, e.g., 18 U.S.C. § 1119(b) (making it a federal crime for a U.S. national to kill or attempt
to kill another U.S. national in a foreign country).
285 Zedner, supra note 11, at 46 (describing the territoriality principle as a bedrock assumption in
Anglo-American criminal law); see also DUFF, supra note 279, at 36–39 (outlining the traditional
liberal theory of criminal law in which the obligation to obey arises from “hypothetical consent to
a social contract,” id. at 37).

Electronic copy available at: https://ssrn.com/abstract=3576088

THE PRISONER TRADE

2020]

1865

There are obvious objections to this conception of punishment.
Sociologists have spent half a century documenting the ways in which
criminal law operates as a tool of social control, less to punish than to
identify and manage marginalized groups.286 As they point out, the machinery of punishment does very little to reform and reintegrate those
who have violated criminal laws,287 the people subject to criminal law
are often alienated from the political community that enacts those
laws,288 and the criminal legal process is itself punishing whether or not
it results in imprisonment.289 Though they vary, each of these critiques
advances the claim that criminal law is not so legitimate after all.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
286

For a now-classic version of the social control thesis, see DAVID GARLAND, THE CULTURE
Professor David Garland documents the emergence in the mid-1980s of “control theories” of crime in which criminal activity is assumed to be routine and criminal justice strategies aim to track and protect the public from the dangerous classes. Id. at 15. See also Malcolm
M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections
and its Implications, 30 CRIMINOLOGY 449 (1992) (tracing the development of a “new penology”
in which the goal of crime control is to identify and manage risk, id. at 450). For a recent version
of the social control thesis, see Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J. 2054, 2061 (2017). Professor Bell argues that “the American criminal
justice system has dual purposes, only one of which is crime response and reduction. Its other, more
insidious function is the management and control of disfavored groups . . . .” Id. See also Issa
Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 STAN. L. REV. 611, 614 (2014)
(contending that criminal law administration aims to “manag[e] people over time”). This literature
develops from the critical turn pioneered by Michel Foucault, who argued that punishment practices create and reproduce social norms. MICHEL FOUCAULT, DISCIPLINE AND PUNISH (Alan
Sheridan trans., Vintage Books 1979) (1975). Foucault’s work, in turn, developed from Durkheim’s
writing on the role that crime plays in delineating a common morality. ÉMILE DURKHEIM, THE
DIVISION OF LABOR IN SOCIETY (W.D. Halls trans., Free Press 2014) (1893). See generally David
Garland, Frameworks of Inquiry in the Sociology of Punishment, 41 BRIT. J. SOC. 1 (1990) (providing an intellectual history of social control theories of punishment).
287 See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 2 (2011)
(“[T]he criminal justice system is doing none of its jobs well . . . .”); Gabriel J. Chin, The New Civil
Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1793, 1799–
1803 (2012) (describing the “systematic loss of legal status” — a species of civil death — that accompanies a criminal conviction, id. at 1793); Daniel S. Nagin, Francis T. Cullen & Cheryl Lero
Jonson, Imprisonment and Reoffending, 38 CRIME & JUST. 115, 115, 145 (2009) (challenging the
deterrent effects of prison and maintaining that imprisonment is more likely to be “mildly criminogenic,” id. at 115).
288 By alienation, I mean both literal disenfranchisement and a sense of cultural estrangement.
See Bell, supra note 286, at 2066, 2114–26 (describing the structural conditions that lead “many
African Americans and residents of high-poverty urban communities” to feel alienated from and
deeply cynical about criminal law enforcement, id. at 2066); William J. Stuntz, The Pathological
Politics of Criminal Law, 100 MICH. L. REV. 505, 510, 573–76 (2001) (discussing the “deep[]
politics . . . of institutional competition and cooperation” that incentivize tough-on-crime policies at
the expense of poor communities, id. at 510); Peter Wagner, Breaking the Census: Redistricting in
an Era of Mass Incarceration, 38 WM. MITCHELL L. REV. 1241, 1242–45 (2012) (noting the
potentially “massive effect” of the Census Bureau’s policy of counting incarcerated people as residents of prison when, in many cases, they cannot vote in the districts where those prisons are
located, id. at 1245).
289 See generally MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT (1979) (examining the burdens of the criminal process); see also Alexandra Natapoff, Misdemeanors, 85 S. CAL.
OF CONTROL (2001).

Electronic copy available at: https://ssrn.com/abstract=3576088

1866

HARVARD LAW REVIEW

[Vol. 133:1815

Interstate transfers exacerbate this legitimacy deficit. By extending
the prison system well beyond the territorial and jurisdictional borders
of the communities that authorized imprisonment, transfers lay bare the
attenuated relationship between punishment and criminal law. In theory, punishment is a logical outgrowth of the criminal code, which ought
to be tied to the boundaries of the community that enacted that code.
But in practice, though prosecutions must take place where a crime occurred,290 punishment can happen anywhere. The power to punish is
thus much broader — less territorial, more administrative, and less connected to the underlying criminal law — than the power to prosecute a
crime. If punishment is licensed by its connection to criminal law, this
is a troubling phenomenon. Put differently, transfers aggravate the
sense that American punishment is indefensible, at least on the traditional account of why the state may place a person in a prison cell.
Transfers also raise a basic concern about accountability. It may be
that the problem with interstate transfers is that they harm prisoners
and their families. It could be that transfers expose a legitimacy gap
between criminal law and its enforcement. Or perhaps the real issue
with cross-border transfers is that they permit states to outsource the
ugliness of punishment — to send people away when they are needy,
difficult, or too volatile to confine. Imagine if a state authorized the
death penalty but was too squeamish to impose it, so asked its neighbor
to actually kill the prisoners it had condemned to die. Even if both
states permitted the death penalty and agreed to the transfer, there is
something untoward about the original state avoiding the most gruesome parts of its penal policies. The same critique applies to interstate
transfers, particularly insofar as states use them to manage “troublesome” prisoners or to blunt the true impact of prison crowding. In effect,
transfers permit states to pay to sanitize punishment. This is a problem
if you think states ought to see, feel, and account for the most unpleasant
parts of the decision to sentence a person to prison time.
B. The Benefits
The previous section makes prison transfers seem unequivocally
harmful — harsh, illegitimate, and distorting. But transfers can also
improve prisoners’ lives and promote better prison management. Recall
that regional prison governance was an invention of the Progressive Era

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
L. REV. 1313, 1315–16 (2012) (discussing the harsh consequences of even low-level exposure to the
criminal legal process).
290 See sources cited infra note 304 (collecting constitutional venue provisions).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1867

that midcentury prison reformers embraced as a means to the rehabilitative ideal.291 Part II suggested that this vision was not entirely misplaced: today, although states trade prisoners to avoid the costs of their
criminal justice policies, they also send prisoners out of state to mitigate
the harshness of imprisonment.292
Consider, for example, transfers for family reunification in cases
where prisoners are convicted far from home. These trades reduce the
banishment inherent to imprisonment. Transfers for personal protection, drug treatment programs, and better medical facilities are also distinctly nonpunitive. These sorts of transfers counteract the arbitrariness
of state borders and make it seem impractical and stubbornly formalist
to require state-based prison systems. If an interstate trade were the
only way for a prisoner to see his family or get cancer treatment, I suspect many prison reformers and punishment theorists would endorse
transfers, notwithstanding the theoretical problems posed by extraterritorial punishment.
The real point here is that prisons serve multiple purposes. Prisons
are an instantiation of the criminal law, a site of enforcement meant to
realize collective decisions about which conduct is illegal. They are also
one of the last vestiges of the welfare state in a society in which social
services are remarkably thin. American prisons house millions of people
in need of mental healthcare and are the only place outside of the military and mental institutions where people have a right to state-provided
healthcare.293 States deliver an enormous amount of medical care
through their penal institutions: in 2016, healthcare costs were eighteen
percent of all state prison operating expenditures, and states spent more
than $5700 on healthcare per prisoner.294 By comparison, in roughly the
same time frame, Medicaid spending was just under ten percent of the
federal budget and cost approximately $7500 per enrollee.295
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
291
292
293

See supra p. 1829.
See supra p. 1848.
See Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (recognizing a right to medical care for
people in mental institutions); Estelle v. Gamble, 429 U.S. 97, 103 (1976) (holding that cases interpreting the Eighth Amendment “establish the government’s obligation to provide medical care for
those whom it is punishing by incarceration”); Katherine L. Record, Litigating the ACA: Securing
the Right to Health Within a Framework of Negative Rights, 38 AM. J.L. & MED. 537, 540–41 (2012)
(noting that mental institutions and prisons are the only places in which Americans have a constitutional right to healthcare).
294 Shivpriya Sridhar, Robert Cornish & Seena Fazel, The Costs of Healthcare in Prison and
Custody: Systematic Review of Current Estimates and Proposed Guidelines for Future Reporting,
9 FRONTIERS IN PSYCHIATRY 1, 5 (2018).
295 See JOHN HOLAHAN & STACEY MCMORROW, SLOW GROWTH IN MEDICARE AND
MEDICAID SPENDING PER ENROLLEE HAS IMPLICATIONS FOR POLICY DEBATES 6 tbl.2
(2019),
https://www.urban.org/sites/default/files/publication/99748/rwjf451631_1.pdf
[https://
perma.cc/5374-B7WW]; Alison Kodjak, From Birth to Death, Medicaid Affects the Lives of
Millions, NPR (June 27, 2017, 5:01 AM), https://www.npr.org/sections/health-shots/

Electronic copy available at: https://ssrn.com/abstract=3576088

1868

HARVARD LAW REVIEW

[Vol. 133:1815

Correctional administrators use these funds to serve a population
with acute needs. The prevalence rate of HIV in prison is four times
the rate in the general population;296 a third of all people in the United
States with Hepatitis C “spend at least part of the year in a correctional
institution”;297 roughly sixty percent of state prisoners meet the criteria
for drug dependence or abuse;298 and as the imprisoned population ages,
penal institutions are increasingly serving as senior-living facilities,
providing healthcare for chronic medical conditions, diminished mobility, hearing and vision loss, and dementia.299
Prisons may not be doing these jobs well, and they are almost certainly not the site where such jobs should be done. But for the
moment — and in the absence of an enormous transformation in the
structure of American society — prisons are places where the state offers
and funds services for people who are poor, addicted, homeless, aging,
and ill. From this perspective, imprisonment is as much about the administration of social welfare programs as it is about criminal law. If
one focuses on this aspect of the penal project, it can seem tone-deaf to
insist on the salience of state lines.
Transfers also make the job of running a prison easier. As any correctional administrator will attest, it is no easy task to confine thousands
of people, many of whom are traumatized and in urgent need of care.
Nor is it simple to employ and train thousands of correctional officers,
particularly on a tight budget.300 Insofar as they provide a solution to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
2017/06/27/534436521/from-birth-to-death-medicaid-affects-the-lives-of-millions [https://perma.cc/
UKZ8-TBA6].
296 GAY MEN’S HEALTH CRISIS, FENCED
IN 1 (2012), http://gmhc.org/files/
editor/file/a_pa_2012_prison.pdf [https://perma.cc/L2FF-8T48] (summarizing data from the Bureau
of Justice Statistics); see also LAURA M. MARUSCHAK & JENNIFER BRONSON, U.S. DEP’T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS, HIV IN PRISONS, 2015 — STATISTICAL TABLES 1
(2017) (describing a decline — but continued persistence — of HIV cases in state and federal correctional facilities since 1991).
297 HCV
Testing and Treatment in Correctional Settings, HCV GUIDANCE,
https://www.hcvguidelines.org/unique-populations/correctional [https://perma.cc/3QRC-N9K7].
298 JENNIFER BRONSON ET AL., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
DRUG USE, DEPENDENCE, AND ABUSE AMONG STATE PRISONERS AND JAIL INMATES,
2007–2009, at 1 (2017). By comparison, approximately five percent of people in the general population meet the same criteria. Id.
299 See Laura A. Bischoff, Ohio’s Aging Prison Population Is Adding Costs for Their
Care, DAYTON DAILY NEWS (Aug. 26, 2018), https://www.daytondailynews.com/news/ohioaging-prison-population-adding-costs-for-their-care/EKnl7rSI2z76J2LNIGaZQL [https://perma.
cc/7D2A-WS4G]; Matt McKillop & Alex Boucher, Aging Prison Populations Drive Up Costs,
PEW CHARITABLE TRUSTS (Feb. 20, 2018), https://www.pewtrusts.org/en/research-andanalysis/articles/2018/02/20/aging-prison-populations-drive-up-costs [https://perma.cc/R7KV-5T8S]
(“From 1999 to 2016, the number of people 55 or older in state and federal prisons increased 280
percent. . . . State prison populations account for the vast majority of these . . . totals.”).
300 See, e.g., Mary Ellen Klas, Legislature Left $28 Million Hole in Prison Budget. Now
Essential Programs Are Cut, MIAMI HERALD (May 4, 2018, 2:26 PM), https://www.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1869

thin staffing and intractable management challenges, transfers improve
prison administration, which might, in theory, make prisons less brutal
places to live and work.301
Interstate transfers thus have clear benefits for both prisoners and
staff. In a criminal enforcement system characterized by competing
values and conflicting purposes, it makes sense to build a flexible legal
infrastructure that allows states to relieve some of the pressures of imprisonment. Sending prisoners to be near their families, reducing
crowding, expanding healthcare, and protecting vulnerable members of
the prison population are humane goals that interstate governance facilitates. Transfers seem less concerning the more one focuses on these
goals, and the more one confronts the extraordinary welfare function the
United States asks its prisons to serve.
C. Outsourcing the Power to Punish
Ultimately, whether interstate transfers are desirable depends on
which account of imprisonment one adopts. If prisons reflect a classic
territorial conception of criminal law, forced transfers are illegitimate.
If prisons are sites of service delivery in a receding welfare state, transfers are efficient. These two positions are oversimplified, but they capture the dilemma: prisons are both a formal idea tied to the criminal law
and real places where millions of people work and receive care. As with
other debates between formalists and functionalists, evaluating prison
policy hinges on which of these visions one prioritizes.
It would be somewhat strange for law to ignore the formal problem.
It is one thing for social theorists to critique the disconnect between
prisons and criminal law, but quite another for the legal system to tolerate a form of imprisonment that lacks a clear justification.302 If the
state’s authority to punish derives from an implicit agreement between
the criminal and the community whose laws he has transgressed, it is
not clear why states can punish prisoners outside that community.303 In
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
miamiherald.com/news/state/florida/article210452109.html [https://perma.cc/Q56G-5WVY] (describing recent budget pressures in the Florida Department of Corrections); Peterson & Parra, supra
note 188 (noting that the Delaware Department of Corrections transferred prisoners to
Pennsylvania to reduce the amount of overtime pay to correctional officers).
301 Prison ethnographers have contributed to a large literature on the relationship between prison
staff satisfaction, staff culture, and prisoners’ quality of life. See, e.g., LIEBLING, supra note 253,
at 431–53; Ben Crewe, Alison Liebling & Susie Hulley, Staff Culture, Use of Authority, and Prisoner
Quality of Life in Public and Private Sector Prisons, 44 AUSTL. & N.Z. J. CRIMINOLOGY 94, 111–
12 (2011) (“Prisoner experiences are . . . shaped by factors such as prison design and material conditions, but these are less significant than staff behaviour in determining the quality of prison life
for prisoners.” Id. at 111.).
302 See R.A. DUFF, ANSWERING FOR CRIMES 51–55 (2007).
303 See DUFF, supra note 279, at 37–38 (“Even if we cannot simply argue that criminals choose
or consent to their own punishment, we might ground their obligation to obey the law in their
hypothetical consent to a social contract and argue that that contract would include provisions for

Electronic copy available at: https://ssrn.com/abstract=3576088

1870

HARVARD LAW REVIEW

[Vol. 133:1815

the version of criminal law prosecutors invoke when they act on behalf
of “the people,” and the one implicit in constitutional provisions requiring criminal trials to be held where a crime is committed,304 crime is an
offense against a polity of which the criminal is a member by virtue of
his presence in the jurisdiction. This is why criminals (including noncitizens and out-of-state residents) can be punished for violations of a
state’s criminal code. If they were not members by virtue of their presence, they would not be subject to the criminal law. This theory of
criminal law also explains why states have to extradite people — literally
move them to the proper territory — in order to prosecute a criminal
offense committed elsewhere.305 In the preconviction justice system, we
assume that criminal law has territorial boundaries, which both authorize and limit its force. In the postconviction justice system, the corollary
assumption is that trading the power to punish to another sovereign
severs the compact that makes punishment permissible in the first place.
In a sense, this is the objection to any prison privatization.306 Interstate transfers are a form of outsourcing in which the state delegates its
authority to punish to another actor. Those who oppose private prisons
on the ground that states alone can enforce their criminal laws will have
the same concern about interstate transfers.307 And those comfortable
with outsourcing imprisonment to private contractors may be fine with
a system in which states trade their punishment power. If the state can
authorize other parties to enforce its criminal code, it would seem to
make little difference whether a private corporation or a separate sovereign imposes the criminal sanction.
Upon closer examination, though, there is a difference between
privatization and interstate imprisonment. Privatization involves delegating the punishment power, but it need not involve extraterritorial
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
the punishment of those who break the law — thus justifying their punishment in terms of the
contract to which they would consent.” Id. at 37.). Of course, this is only one theory of the legal
basis for criminal sanctions.
304 See U.S. CONST. art. III, § 2, cl. 3 (introducing the venue requirement in federal criminal
cases); Robert A. Leflar, Conflict of Laws: Choice of Law in Criminal Cases, 25 CASE W. RES. L.
REV. 44, 46 (1974) (listing analogous provisions in state constitutions, which typically require trials
in the county where an offense was committed).
305 See supra p. 1864.
306 See Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J. 437, 469–71, 515–
18 (2005) (outlining philosophical objections to private punishment); Malcolm M. Feeley, The
Unconvincing Case Against Private Prisons, 89 IND. L.J. 1401, 1404 (2014) (rejecting the state monopoly theory of imprisonment in favor of “a pragmatic assessment of privatization”).
307 See MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY
77, 77–78 (H.H. Gerth & C. Wright Mills eds., 1946) (“[A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Id.
at 78.). The Supreme Court of Israel (sitting as the High Court of Justice) cited this passage in 2009
when it held that a law permitting private prisons in Israel was unconstitutional. HCJ 2605/05
Acad. Ctr. of Law and Bus., Human Rights Div. v. Minister of Fin., 63(2) PD 545 (2009) (Isr.).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1871

punishment. Private prisons can be located in-state. By contrast, interstate transfers involve both delegation and territorial dislocation. Interstate imprisonment is thus “outsourcing-plus”308 — a mode of punishment that challenges both the idea that states have a monopoly on the
legitimate use of force and the territoriality norm in American criminal
law. If the concern is that states ought to impose their own punishments,
interstate transfers and private prisons are equally problematic. But if
the concern is that punishment ought to take place where a crime occurred — either because maintaining community ties reduces recidivism
and eases reentry; or because the legitimacy of punishment depends on
its connection to the bounded community that enacted the underlying
criminal law; or because punishment is an act meant to express communal disapproval and in doing so to reestablish the bond between a
criminal and his community309 — then extraterritorial punishment is
troubling whether it is private or not.
Transfers also raise a separate concern about transparency. Here
again, the analogy to privatization is helpful. In the classic critique of
privatization, the problem with private prisons is that punishment must
be public to be legitimate.310 Sometimes, though, what critics of privatization really object to is the lack of accountability that comes with private imprisonment.311 In this version of the critique, the difficulty with
outsourcing punishment is not that it is unauthorized — after all, the
state has never looked like Max Weber’s ideal312 — but rather that
privatization insulates political actors from supervision. From this perspective, the terms “public” and “private” aim less to describe who may
impose state power than to capture a set of values associated with good
governance.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
308 Thanks to Professor David Sklansky for suggesting this term and for generative conversations
about the accountability concern.
309 For one version of this communitarian theory of punishment’s purpose, see DUFF, supra note
279, at 41. As he puts it, “Crime, as a violation of the community’s law and an attack on its good
(as a breach of community), threatens to destroy the criminal’s relationship with the community.
Punishment aims to restore that relationship, to repair that breach, by bringing the criminal back
into (law-abiding) community.” Id.
310 See supra note 307.
311 For example, the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2018), does not apply
to private prisons. Legislators’ efforts to amend the “FOIA loophole” have been unsuccessful. See,
e.g., Private Prison Information Act of 2017, S. 1728, 115th Cong. (2017).
312 Until the 1930s, for instance, the federal government outsourced its punishment authority to
state prisons, “which received fees for each federal inmate they agreed to board.” Kaufman, supra
note 75, at 1388 (citing KEVE, supra note 21, at 1, 13); see also Feeley, supra note 306, at 1412–14
(“Historically, Anglo-American countries have depended heavily on the private administration of
public punishments, and for many other functions of the modern liberal criminal justice system.”
Id. at 1414.); Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century
United States, 39 AM. J. LEGAL HIST. 43, 46–58 (1995) (recounting the history of privately funded
criminal prosecution); cf. NICHOLAS R. PARRILLO, AGAINST THE PROFIT MOTIVE 42–43 (2013)
(describing bounties paid to nineteenth-century prosecutors for each conviction they obtained).

Electronic copy available at: https://ssrn.com/abstract=3576088

1872

HARVARD LAW REVIEW

[Vol. 133:1815

On this more pragmatic view, the objection to prison transfers is that
they are unregulated and opaque. Specifically, the problem is that there
is no easily accessible information on prison transfers, and prison officials operate without any oversight from the public or other participants
in the legal system. It is perhaps especially unsettling that judges — the
actors one might expect to oversee prison sentences, given that they
impose them — are nowhere to be found in the transfer system. In
practice, it is prison bureaucrats — not judges, not legislatures, and not
political communities — who choose where punishment may take place.
The data in Part II indicate that their choices are ad hoc, and, at least
in some cases, motivated by concerns that threaten to distort and
degrade the legal system.
There are thus three distinct sorts of conceptual problems with interstate transfers. They involve delegation of the punishment power,
which some find illegitimate. They undermine a territoriality norm,
which may be critical to the effectiveness or philosophical coherence of
punishment. And they occur without oversight, which offends principles of transparency and accountability central to good governance. Yet
as the previous section explained, transfers can also have significant upsides for prisoners and staff. This mixed bag — serious objections with
obvious benefits — demands a limiting principle to guide when, if ever,
transfers may take place.
To be sure, this is a call for regulation of a system that currently
operates relatively smoothly on its own. One response to the data on
prison transfers is that the prisoner trade is working just fine: it is legally
authorized and is used only when it is beneficial to prisoners or prison
officers. The system appears to be regulating itself. But beneath the
surface, Part II uncovered disquieting trends. The reaction to Brown v.
Plata suggests that transfers are a way to avoid reforming prison conditions or reducing prison admissions in response to prison litigation
meant to achieve precisely those ends.313 Part II described states that
have used transfers to circumvent political opposition to prison building
and to refrain from paying unionized (and therefore expensive) prison
staff the wages to which they are legally entitled.314 Even “compassionate” transfers can be recast as an effort to evade the true costs of imprisonment. Trades to prison hospitals and mental health centers mask the
state’s inability to deliver constitutionally adequate healthcare in penal
institutions. Trades to quell riots expose the state’s incapacity to protect
the number of people it chooses to incarcerate. All of these transfers
allow states to continue using prisons for purposes they are ill-equipped
to serve.
It may be wise to force states to internalize the monetary, political,
and human costs of their prison policies. For those unconvinced by the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
313
314

See supra pp. 1853–55.
See supra section II.C, pp. 1848–55.

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1873

philosophical objections to interstate transfers and unconcerned about
opaque bureaucratic administration of the transfer system, this is the
final reason to regulate the prisoner trade. Unrestricted transfers enable
a thin, neoliberal state in which prisons purport but fail to provide safety
and social programs — which, in turn, prevents states from investing in
more effective, noncustodial alternatives to the problems of crime and
inequality.315
D. Consent as a Cure
Thus far, this Article’s aim has been to trace the deterritorialization
of state punishment over the course of the twentieth century and to defend the value of an oversight regime that would make prison transfers
less arbitrary and opaque. The question that remains is how best to
regulate interstate imprisonment.
One option is for the Supreme Court to revisit the holding that prisoners lack a due process right to be incarcerated in their state of conviction.316 Though this outcome seems unlikely, there are good reasons to
rethink that rule. As Part I explained, the Court’s reasoning in Olim v.
Wakinekona hinged in part on the conclusion that out-of-state confinement was “neither unreasonable nor unusual” and that prisoners therefore had no justifiable expectation of in-state incarceration.317 Yet as
this Article has uncovered, more than thirty years after Wakinekona,
interstate transfers remain relatively rare — common and concentrated
in outlier states, often harmful and distorting when they do occur, but
nonetheless rare against a national baseline. If what matters to constitutional analysis is the overall frequency of transfers, the afterlife of
Wakinekona suggests that the Court’s core conclusion was wrong.318
Wakinekona may also have been misguided because, as the West
Virginia Supreme Court put it one year later, prisoners have a right “[t]o
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
315 From this perspective, prison transfers reflect a dynamic discussed by other scholars in which
“an expansive penal system” becomes necessary “to enforce and uphold an increasingly deregulated
economy.” Ben Crewe, Alison Liebling & Susie Hulley, Staff-Prisoner Relationships, Staff Professionalism, and the Use of Authority in Public- and Private-Sector Prisons, 40 LAW & SOC.
INQUIRY 309, 310 (2015). See generally BERNARD E. HARCOURT, THE ILLUSION OF FREE
MARKETS 52 (2011) (arguing that neoliberalism has encouraged the growth of prison systems);
LOÏC WACQUANT, PUNISHING THE POOR 305–08 (2009) (identifying an extensive penal system
as one of the “constituent ingredients” of neoliberalism, id. at 308).
316 See Olim v. Wakinekona, 461 U.S. 238, 251 (1983).
317 Id. at 247; see id. at 245.
318 Thanks to Professor Will Baude for helpful conversations on this point. See Justin Driver,
Constitutional Outliers, 81 U. CHI. L. REV. 929, 931–33 (2014) (examining the Supreme Court’s
“penchant for suppressing outliers,” id. at 931, including “upstart” practices that “depart[] from the
dominant mode” in most jurisdictions, id. at 933); Corinna Barrett Lain, The Unexceptionalism of
“Evolving Standards,” 57 UCLA L. REV. 365, 368–69 (2009) (noting that the Supreme Court often
“determines constitutional protection based on whether a majority of states agree” with a practice
or rule, id. at 369).

Electronic copy available at: https://ssrn.com/abstract=3576088

1874

HARVARD LAW REVIEW

[Vol. 133:1815

remain” in the state that claims the power to punish them.319 Perhaps,
as with healthcare, states incur a duty to care for the prisoners they
choose to confine.320 Perhaps transfers are cruel and unusual; the
Founders took that view with respect to forms of punishment that
shipped prisoners out of state.321 Or perhaps the right to remain stems
from the associational rights of prisoners and their families, which
Wakinekona, a procedural due process case, did not address. None of
these theories is governing law,322 but it is hardly inconceivable that the
Court would constitutionalize a right to be confined in-state when convicted under state law.
Recognition of such a right need not produce a total ban on transfers.
Although the right to remain could bar out-of-state punishment, it could
also be less absolute. Like criminal procedure rights, a right to in-state
imprisonment might be waivable. Presumably a prisoner would waive
his right to remain when a transfer improved his life or health but would
object to transfers with more deleterious effects, such as those that separate him from his family and access to courts. A waivable right to
remain would thus enable some cooperative prison governance while
limiting arbitrary or unduly punitive transfers.
Even in the absence of a constitutional right, legislatures or prison
officials could create a regulatory regime to govern transfers. One
straightforward approach would be to require prisoners to apply for interstate transfers rather than permitting prison officials to swap people
at will. These applications could be adjudicated internally, though if
oversight is the goal it would be wiser to require judges or some other
external legal actors (a commission comes to mind323) to approve transfers before they take place. This approach would allow prisoners not
merely to prevent but also to seek interstate transfers. If states kept
records, these applications would be one way to track which state systems prisoners most want to leave.
As with a waivable right to remain, an application requirement is an
attempt to build prisoners’ consent into the interstate transfer process.
This is an old idea: as Part I explained, the drafters of early interstate
compacts proposed consent as a solution to the philosophical and legal
problems posed by forced prisoner transfers.324 Although that proposal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
319
320
321
322
323

Ray v. McCoy, 321 S.E.2d 90, 92 (W. Va. 1984).
Cf. Estelle v. Gamble, 429 U.S. 97, 103 (1976).
See supra p. 1823 (describing early critiques of “monarchical” punishments).
Except, of course, in West Virginia.
Oversight of interstate parole agreements, for example, is provided by a board of governorappointed commissioners.
About the Commission, INTERSTATE COMM’N FOR ADULT
OFFENDER SUPERVISION, https://www.interstatecompact.org/about [https://perma.cc/T3SAMAGF].
324 See supra p. 1832 (describing Mitchell Wendell’s early consent proposal to the Council of
State Governments).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1875

disappeared with court rulings rejecting a federal constitutional right to
be incarcerated within one’s state of conviction,325 consent remains a
guiding principle in analogous areas of criminal law.
Interstate probation and parole agreements, for example, begin when
a person applies to transfer his supervision to another state.326 International prisoner repatriation — the process of transferring a noncitizen
incarcerated in the United States to serve his sentence in his country of
origin — also starts when prisoners seek their own transfers,327 and involves approval from a judge in open court.328 The forced trade of
domestic prisoners is a departure from these bodies of law, where
mobility requires consent. In this respect, interstate prisoner transfers
are more akin to deportation and similar forms of forced movement in
the immigration system than to other transfers in the criminal justice
system.
Consent is also familiar from the plea bargain. Before a plea bargain
becomes binding, a person charged with a criminal offense must appear
in court and confirm that he understands the agreement he has entered.329 The judge entertaining that plea must conclude on the record
that the agreement is voluntary and has an obligation to reject the plea
if there is reason to believe the defendant fails to understand the charge,
the possible punishment, or the rights he has waived.330
Of course, there is no part of the criminal process more pilloried than
the plea bargain. Professor John Langbein famously compared plea
bargaining to torture,331 and the literature decrying America’s plea rate
is vast.332 As these critiques suggest, it is hard to swallow the notion
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
325
326

See, e.g., Olim v. Wakinekona, 461 U.S. 238, 251 (1983).
See INTERSTATE COMM’N FOR ADULT OFFENDER SUPERVISION RULES ch. 3, r. 107
(INTERSTATE COMM’N FOR ADULT OFFENDER SUPERVISION 2003).
327 18 U.S.C. § 4100(b) (2018); see also Kaufman, supra note 185, at 71–73 (explaining the international repatriation process). In requiring prisoner consent for international prison transfers, the
United States is increasingly unusual. In the last decade, Western European countries have begun
“moving away from the idea that prisoners should have to consent to transfer,” and have started to
sign compulsory repatriation treaties. Mary Bosworth, Penal Humanitarianism? Sovereign Power
in an Era of Mass Migration, 20 NEW CRIM. L. REV. 39, 46 (2017).
328 See Kaufman, supra note 185, at 72–73.
329 FED. R. CRIM. P. 11(b)(1).
330 Id. 11(b)(1)-(3).
331 See John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REV. 3, 3 (1978) (“[T]here
are remarkable parallels in origin, in function, and even in specific points of doctrine, between the
law of torture and the law of plea bargaining.”).
332 See, e.g., Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV.
2463, 2467–68 (2004) (discussing how “legally irrelevant factors,” id. at 2467, produce plea bargains
that result in “substantial sentencing inequities” and “warp the fair allocation of punishment,” id.
at 2468); Stephen B. Bright, The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies, 11 U. PA. J. CONST. L. 23, 24 (2008) (“[T]he overwhelming majority of criminal
cases — 90% to 95% — are resolved with plea bargains. . . . The extraordinary breadth of [prosecutors’] discretion . . . makes it possible for racial biases to enter the process.”); Daniel Epps,
Adverserial Asymmetry in the Criminal Process, 91 N.Y.U. L. REV. 762, 766 (2016) (“[T]here is broad

Electronic copy available at: https://ssrn.com/abstract=3576088

1876

HARVARD LAW REVIEW

[Vol. 133:1815

that criminal defendants are in fact consenting to their plea deals. And
as feminist legal scholars would add, it is deeply complicated to construct a legal regime based on consent.333 In a society riven by intense
power imbalances, consent is often difficult — perhaps impossible — to
evaluate. This concern applies with equal force to the prison, an inherently coercive and imbalanced institution.334 One could imagine many
scenarios in which prisoners were forced or induced to “consent” to
transfers they would prefer to avoid.
A call to incorporate prisoners’ consent into any part of the criminal
justice system should thus be met with considerable skepticism. Nonetheless, the idea has value in this context, less as a thick concept than as
a design choice. A transfer regime based on a thin notion of consent
may not capture prisoners’ authentic or free choices and, like every institutional structure in the prison system, would be subject to abuse.
But requiring prisoners to apply for transfers and requiring external actors to approve them creates a default rule that makes it more difficult
to trade prisoners for objectionable reasons, if not because the rule reflects true consent then because it imposes a transaction cost on prison
administrators.
One could even go further, permitting nonconsensual transfers in
some circumstances. There are cases where the argument for forced
transfers is powerful — if a prisoner needed but declined life-saving
medical care, for instance. Conversely, if that same prisoner sought a
transfer to a state without the capacity to treat him, the argument for
overriding his preference might be strong. These scenarios raise
questions about state paternalism and free will that run throughout
American law. In such situations, a rebuttable presumption against
transfers may be nimbler than a rule requiring consent. My own view
is that the prisoner’s preference should prevail, but the point here is not
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
agreement that the current plea bargaining regime is troubling.”); Langbein, supra note 331, at 9;
William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 HARV. L. REV.
2548, 2550 (2004) (“[P]lea bargains take place in the shadow of prosecutors’ preferences, voters’
preferences, budget constraints, and other forces — but not in the shadow of the law.”).
333 See Robin West, Women in the Legal Academy: A Brief History of Feminist Legal Theory, 87
FORDHAM L. REV. 977, 990 (2018) (surveying feminist critiques of consent as a tool for legitimating
an oppressive social order); Janet Halley, The Move to Affirmative Consent, SIGNS (Nov. 10, 2015),
http://signsjournal.org/currents-affirmative-consent/halley [https://perma.cc/Z9JG-SGV9] (critiquing efforts to incorporate affirmative consent into legal procedures); cf. Erin E. Murphy & Stephen
J. Schulhofer, Project Reporters on “Consent,” THE ALI ADVISER (Aug. 30, 2016),
http://www.thealiadviser.org/sexual-assault/project-reporters-consent
[https://perma.cc/Z4AK4YZK] (discussing the difficulties associated with defining consent in criminal law).
334 See KAUFMAN, supra note 268, at 58 (describing barriers to obtaining meaningful consent
from prisoners); LIEBLING, supra note 253, at 462 (critiquing the coercive dynamics of imprisonment); Richard Sparks, Can Prisons Be Legitimate?: Penal Politics, Privatization, and the
Timeliness of an Old Idea, 34 BRIT. J. CRIMINOLOGY 14, 15–16 (1994) (“One irony of the modern
prison . . . is that it operates as an autocracy within a democratic polity,” id. at 15, which in turn
leads to “a durable ‘legitimation crisis,’” id. at 16.).

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1877

that these problems have clear or easy answers. Rather, the claim is that
current law undervalues the harm of prison transfers and leaves serious
decisions about the location of punishment to bureaucrats who operate
in opaque institutions. Requiring consent in many if not all cases would
introduce accountability into the transfer system and would force courts
to make public determinations about the scope of a prisoner’s right to
remain.
Not everyone will support this proposal. Formalists who endorse the
territorial theory of criminal law335 or oppose the delegation of punishment power will likely prefer a rule prohibiting all transfers as illegitimate. Those who understand criminal law as a form of state-based
common law and object to its transformation into a national system of
bureaucratic administration may favor a strict territorial prohibition
too. Retributivists might endorse unregulated prisoner transfers on the
theory that the harshness of long-distance punishment is a feature rather
than a bug of a system meant to harm people for wrongdoing. Critical
theorists may deem any regulatory framework futile given prisoners’
relative powerlessness and judges’ apparent unwillingness to police similar agreements like plea bargains. And utilitarians would likely need
to be convinced that the costs of transfers outweigh their benefits, which
means deciding whose interests in prison administration have value.
A system that requires consent for transfers balances these competing conceptions of how to evaluate law. Requiring prisoners to agree to
their own transfers addresses (though perhaps cannot cure) the formalist
objection to prisoners’ absence from the implied social compact that legitimates punishment. Having judges or public commissioners approve
transfers ameliorates anxiety about transparency. A consent regime also
permits collaborative prison administration but filters out its most noxious forms. For functionalists, this is one way to acknowledge that prisons serve multiple purposes while limiting the most distorting effects of
prisoner transportation.
Still, those who demand harsh prisons or hard borders will not be
satisfied. If everyone were a retributivist, a strict federalist, or a utilitarian, it would be much easier to determine how the transfer system
should work. But disagreement is a defining feature of criminal law.
Legislatures, courts, and communities have never settled on a single theory of punishment; instead, the criminal code nods to several competing
views of the goals that imprisonment is meant to serve, and judges cite
everything from deterrence and incapacitation to rehabilitation when
sentencing a person to prison time.336 In the absence of a coherent,
consistent approach to why we imprison people, the best rule is one that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
335
336

See supra pp. 1863–65.
See 18 U.S.C. § 3553(a)(2) (2018) (listing factors judges must consider in imposing a sentence,
including the need to “provide just punishment,” “afford adequate deterrence,” “protect the public
from further crimes,” and rehabilitate the defendant).

Electronic copy available at: https://ssrn.com/abstract=3576088

1878

HARVARD LAW REVIEW

[Vol. 133:1815

grapples with both formalist and functionalist aims, which is to say, with
the prison’s dual role as a legal institution and a vehicle for social programs. Such a rule, though no doubt imperfect, is preferable to a system
with clear flaws and no oversight.
CONCLUSION
There are several lessons one might take from this account of
American punishment. The history of prison transfers illuminates the
codependent relationship between bureaucrats, federal courts, and private corporations. The data on transfers reveal pathological dynamics
in the postconviction justice system that parallel the better-known pathologies of plea bargaining and criminal sentencing.337 The normative
debate over extraterritorial confinement demonstrates how difficult it is
to run a criminal justice system without a clear theory of punishment.
But perhaps the clearest lesson from this Article is that judges, scholars, legislators, and reformers need to ask where America’s prisoners are
held. The straightforward assumption — state prisoners live in their
state’s penal institutions — is wrong, and has been for decades.
This means that, when they impose sentences, judges are authorizing
the state to ship people thousands of miles from home. It means that
legislators who fund correctional systems, including those who oppose
prison construction, are licensing out-of-state punishment. And it means
that reformers who want to reduce incarceration rates or improve prison
conditions have to coordinate beyond state lines. There is no question
that criminal justice is driven by local practices and state budgets.338
But in an important sense — more than academics or reformers may
have realized — the country also has one interlocking penal estate with
negotiable boundaries. In an era of tight budgets, divisive politics, and
mass mobility, the question is how fluid those borders can become.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
337 See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons
from Administrative Law, 61 STAN. L. REV. 869, 876–78 (2009); Bibas, supra note 332, at 2467;
Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 COLUM. L. REV. 1303, 1310–16
(2018); Langbein, supra note 331, at 12–19; Willliam J. Stuntz, The Pathological Politics of Criminal
Law, 100 MICH. L. REV. 505, 578 (2001); see also Jed S. Rakoff, Why Innocent People Plead Guilty,
N.Y. REV. BOOKS (Nov. 20, 2014), https://www.nybooks.com/articles/2014/11/20/why-innocentpeople-plead-guilty [https://perma.cc/S6F4-SXWT].
338 See, e.g., PFAFF, supra note 50, at 13–15 (“[T]here is no single ‘criminal justice system,’ but
instead a vast patchwork of systems . . . .” Id. at 13. “[S]eemingly national criminal justice problems
are really local ones.” Id. at 15.).

Electronic copy available at: https://ssrn.com/abstract=3576088

1879

THE PRISONER TRADE

2020]

APPENDIX
Table 1: Percentage of Prisoners Transferred
The table below shows the number of prisoners transferred out of
each state as a percentage of that state’s prison population. It includes
only states that provided transfer data between May 2018 and February
2019 in response to my FOIA requests. To the extent that states declined
to provide information on transfers to private prisons, these figures undercount the number of exported prisoners.339 State population counts
are from Bureau of Justice Statistics reports340 and publicly available
prison population data on state Department of Corrections websites,
which I checked at the time that I received each FOIA response.

Sta te
Hawaii
Vermont
New Hampshire
Wyoming
Idaho
Nevada
Delaware
California
Montana
Maine
Massachusetts
South Dakota
Rhode Island
Nebraska
Colorado
Utah
Oregon
South Carolina

In-Sta te P riso n
P o pu latio n

P ercentag e Ex po rted

3,540
1,557
2,609
2,476
8,616
12,512
5,500
126,537
2,747
2,321
8,802
4,001
5,037
5,358
20,136
6,681
14,756
18,958

45.31%
15.03%
5.17%
5.09%
3.19%
2.09%
1.64%
1.50%
1.31%
1.08%
0.99%
0.87%
0.83%
0.62%
0.53%
0.48%
0.46%
0.42%

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
339
340

See supra note 156.
See HARRISON & BECK, supra note 165.

Electronic copy available at: https://ssrn.com/abstract=3576088

1880

HARVARD LAW REVIEW

Sta te
Connecticut
Oklahoma
North Dakota
Washington
Alaska
Iowa
Florida
Illinois
Wisconsin
Kentucky
Missouri
Ohio
Pennsylvania
Indiana
Tennessee
Mississippi
Louisiana

[Vol. 133:1815

In-Sta te P riso n
P o pu latio n

P ercentag e Ex po rted

13,289
26,254
7,160
19,369
4,992
8,351
96,000
39,708
23,446
12,240
32,461
48,847
46,505
26,024
22,339
24,144
17,368

0.35%
0.34%
0.31%
0.31%
0.22%
0.22%
0.16%
0.14%
0.14%
0.12%
0.09%
0.08%
0.04%
0.02%
0.02%
0.02%
0.01%

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1881

Tables 2 and 3: Top Exporters and Importers of Prisoners
The tables below list the states that transfer the most prisoners into
and out of the jurisdiction. All 2019 data are taken from responses to
my FOIA requests and, where available, public reports on the use of
out-of-state private prisons. The 2005 data are largely drawn from a
report by the National Institute of Corrections, which did not collect
data on prisoners imported into each state.341 Data for the prison population of each state in 2005 are drawn from the same Bureau of Justice
Statistics report cited in Table 1.342
Note that export figures include prisoners transferred to out-of-state
private prisons insofar as states reported that information.343 Because
Vermont reported no transfers to private out-of-state prisons but now
engages in that practice,344 the Vermont numbers are likely low. Note
also that these data collection dates bookend and thus omit the interstate
transfer (and eventual return) of 10,000 California prisoners in the aftermath of the Supreme Court’s decision in Brown v. Plata.345 During
that period, California exported close to 7.5% of its total prison population and would have made this list.346

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
341 See NAT’L INST. OF CORR., supra note 9, at 13. Because Hawaii did not provide data to the
NIC for the agency’s 2005 report, I have used population figures published by the Hawaii
Department of Public Safety during the same time period. See HAW. DEP’T OF PUB. SAFETY,
FISCAL YEAR 2004 ANNUAL REPORT 17 (2004), https://dps.hawaii.gov/wp-content/uploads/2012/10/PSD-AnnualReport-2004.pdf [https://perma.cc/2AJG-87HM].
342 HARRISON & BECK, supra note 165.
343 See supra note 156 (listing states that did and did not provide details on their use of private
prisons).
344 See id.
345 See supra pp. 1853–54.
346 The figure cited here is estimated using California’s total prison population (135,981) in 2013.
E. ANN CARSON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN
2013 (2014), https://www.bjs.gov/content/pub/pdf/p13.pdf [https://perma.cc/YM83-CTWD].

Electronic copy available at: https://ssrn.com/abstract=3576088

1882

HARVARD LAW REVIEW

[Vol. 133:1815

Table 2: Exporters
2005

Top Exporters
(By number)

Top Exporters
(By percentage
of in-state prison
population)

2019

State

Pris oners Exported

State

Pris oners Exported

Hawaii
Alaska
Wyoming
Washington
Vermont
California

1708
762
598
588
389
382

California
Hawaii
Idaho
Nevada
Vermont
Florida

1892
1604
275
261
234
155

State

Pris oners Exported

State

Pris oners Exported

Wyoming
Hawaii
Vermont
Alaska
North Dakota
Washington

29.2%
28.7%
18.7%
15.8%
4.8%
3.4%

Hawaii
Vermont
New Hampshire
Wyoming
Idaho
Nevada

45.3%
15.0%
5.2%
5.1%
3.2%
2.1%

Table 3: Importers
2019

Top I m porters
(By number)

Top I m porters
(By percentage
of in-state prison
population)

State

Pris oners I m ported

Pennsylvania
New Hampshire
Colorado
Florida
Oklahoma
Oregon
Massachusetts

302
152
133
118
77
72
71

State

Pris oners I m ported

New Hampshire
Montana
Wyoming
Maine
Massachusetts
South Dakota
Colorado

5.8%
1.4%
1.3%
1.0%
0.8%
0.8%
0.7%

Electronic copy available at: https://ssrn.com/abstract=3576088

2020]

THE PRISONER TRADE

1883

Table 4: Pathways of Prison Transfers
The following chart, compiled from cross-referenced FOIA data, depicts the pathways of prison transfers.347 It does not show the numbers
of prisoners sent to each state because all but a handful of states do not
collect or declined to provide that information. The rows in black reflect
states that did not transfer or receive any interstate prisoners.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
347 As noted above, see supra p. 1841, this chart assumes that, if state A reported transferring
prisoners to or from state B, then those transfers occurred, even if state B did not respond to my
requests for data or did not report the transfer in the data it provided.

Electronic copy available at: https://ssrn.com/abstract=3576088