In DC, it was reported that one of the children who murdered the Uber driver had recently also been caught committing another carjacking. I haven't done the statistical analysis on this, but that's something I see a fair amount in violent crimes here - that the perpetrator has recently been caught for illegal gun possession, assault, etc., and they're out on the streets again quickly (in some cases, immediately and while awaiting trial, in some cases after getting a deal involving no or very little jail time.) I don't know to what extent that's a national or merely local phenomenon. That seems bad. Like, extremely bad, both because murder is terrible but also because the government seems to me to be more responsible for a murder committed by someone they just saw for another violent crime and decided to let go. As for doing monitoring instead, that requires a level of competence that may not exist.
DC also had a case this summer where an adult was arrested for murder, LET OUT ON BOND (technically personal recognizance since DC eliminated cash bail), and then shockingly murdered someone else the next week.
This tends to be a typical argument from both the DC Police Union (which avoids the histrionics of the NYPD union) and MPD leadership, that they make arrests for guns and violent crime and the same dudes are out doing more crimes the next day or week.
For a brief moment over the summer MPD was including the crimes which murder suspects were already on probation / parole for in their press releases when they made arrests, which helped highlight the fact that a ton of DCs murderers had previously been convicted of or were awaiting trial for gun crimes or violent crimes and were not incarcerated.
I'm generally a tough on crime guy but the American idea of "tried as an adult" seems bad to me. Why should a person well under the age of 18 (these girls were 13 and 15) suddenly become an "adult" if they commit a crime?
They don't enjoy adult privileges such as being able to vote or buy alcohol, it seems unfair to treat them as adults only if they commit a crime.
The problem seems to be that crimes committed by legal juveniles are handled so wildly differently at sentencing that in cases of violent crime it (rightly or wrongly) starts to feel ludicrous that they're being let off so much easier just by virtue of being a couple of months or a year short of the arbitrary age of 18. Some sort of system where crimes committed by people in their late teens are treated differently than crimes committed in their early teens and crimes committed by pre-teens would seem to make more sense than just having a binary "adult" or "juvenile" designation.
The murderer is being tried as a juvenile, presumably, because the murderer *is* a juvenile. Children can be tried as adults in this country, but if it can be done the other way around, this is the first I've heard of it.
It does not make me hate liberals, but the crime and school closures do make me wish that the Republicans would at least make a token attempt at cities in order to raise these issues.
I have been intrigued by several recent popular press articles about detectives settling murder cold-cases via DNA, sometimes through reconstructing family trees in order to reduce the number of leads to a manageable size.
I think that's a great way to clear cases. Here's an even better one:
Put a few billion dollars into testing and banking every rape kit in the country. There are thousands of them lying around, untested. That right there is a fast clearance-method, lying to hand.
"But rapes are hard to prosecute and convict!" you say. And so they are, which is a topic for another post (it's a toxic stew of misogyny and patriarchy, and the fault lies with jurors as much as prosecutors).
But serial rapes are relatively easy to get convictions on. And I am not alone in suspecting that serial rape is fairly common, and would be revealed to be so by a national inventory of the DNA from rape kits.
This would be an excellent use of time and money by the Biden administration. Making people less likely to get raped makes them less afraid to work and travel freely. Looks like smart infrastructure spending to me.
I'm honestly surprised something like that hasn't already been done. Rape kit backlogs are a fairly evergreen systemic failure complaint and it would seem to be a relatively easy problem to throw money at and solve.
Yes, and other studies have found the rate to be about the same as for reports of other crimes, i.e. about a 7% to 10% rate of false accusations.
But never mind that: once you have ten rape accusations all tied to one man's DNA, it's going to be a lot easier to persuade a jury that none of them are false.
Process all of the rape kits, and a lot of these cases will come to light.
Yeah, it's one of those weird things where most people say that they agree, and yet year after year it never gets done.
(Possibly because my T-shirt saying "I'm not personally worried about what would be found out if rape kits were tested, I'm just saying there are other priorities" has people asking a lot of questions already answered by my shirt.)
It's not as simple as it sounds. Testing kits requires lab space and time, and material, all of which would have to be weighed against the current press of evidence to be tested. Because the chain of custody for the evidence has to be maintained, the testing can't be done by just any lab. So you wind up with needing to open or license multiple new crime labs to deal with the backlog, but knowing you won't need them once the backlog is worked through. I mean, if you can come up with a good workaround, I'm all ears, but so far no one's figured it out.
But that sounds like *exactly* the sort of situation where money and political will solves the problem. The technical challenges that you are describing are exactly like those that we faced in ramping up the production and administration of vaccines in the face of a pandemic.
Of course it's not simple to "process the tests" -- nor is it simple to "vaccinate the nation" But when the money and the will are there, we figure out ways to do things, even if they are not as simple as a slogan.
Thanks for explaining this - I’ve always wondered. Based on that explanation it seems like something where more money would help - the current situation is outrageous.
If I recall correctly, the rate of false "rape allegations" is fairly high, where someone says falsely, "I was raped by an unknown assailant". False "rape accusations", where someone says falsely "I was raped by this particular person", on the other hand, are fairly low.
This is one of Matt's best posts to date. I seem to recall a previous one he did which touched on criminal justice but did not acknowledge many important issues such as the typically high time preference and below average IQ of criminals.
Actually his post today touches on some points I made in response to that post, in particular re the importance of a short time frame between crime and punishment - this is v. important when dealing with such people.
My proposals were a good deal more controversial than Matt's are though - I proposed a return to the use of corporal punishment.
It's probably true that short but certain prison sentences are a more effective deterrent than long but unlikely ones.
However I believe, that, particularly for the types of people who commit street crimes, corporal punishment would be more effective yet.
Ideally it should be performed as soon as possible after the crime was committed, and the criminal's memory of the crime should be "refreshed" immediately beforehand, for instance by being made to watch CCTV footage of the crime if available.
Corporal punishment is in many ways genuinely kinder than imprisonment too - ask yourself, how many months / years in prison would you willingly spend in order to avoid, say, 10 lashes?
Yeah thanks. Someone recommended that to me in response to my previous posts but I haven't got around to reading it.
I think that "going there" on corporal punishment would be a pretty big step for anyone, especially anyone who considers himself a liberal.
But I do think there is an a weird disconnect in that fact that several first world nations including the US and Japan have capital punishment but do not even consider corporal punishment, which is seen as fit only for barbaric countries such as Saudi Arabia.
Meanwhile, corporal punishment *for children* is still widely seen as normal, though it's become more controversial, and there are campaigns to ban it, some of which have succeeded in places.
This punishment is carried out without judge, jury, sentencing guidelines or any other kind of standards or safeguards for the most part, and is generally highly inconsistent due to differing parental attitudes.
Perhaps. But physical punishment of children is often somewhat random, and based more on parental temperament than what the child actually did.
I was merely pointing out it's ironic that we allow (in most places) corporal punishment or children with basically no checks or balances, but recoil from the idea of a measured system of physically punishing adults.
IMHO the research on effects of corporal punishment on kids is exceedingly flawed. The questions are very tough to answer "scientifically" with reasonable validity (the kinds of parents who spank, and the kinds of kids who get spanked, are not, in general, identical to those who do not, and it is virtually impossible to adjust properly, even if the author tries. Beyond the JR-version argument which I find quite reasonable (not because I am a fan of whipping, but because I find the ten+ year sentences inflicted in the US to be immeasurably cruel), I think there's a pretty substantial evolutionary argument. Do chimpanzees do "time out"? Do hunter-gatherer societies give long lectures to small children who are getting on daddy's nerves? Of course, measures that might be appropriate for small kids might not be for adults, and one must consider the prevailing cultural values.
Be careful to avoid the "appeal to nature" fallacy. Chimps will commit genocide against neighboring chimp communities. Some other primates commit infanticide as a matter of course. Our cousins in the animal kingdom -- while they may shed some light on human nature -- are not necessarily promising roll models.
Honestly I regret even moving into this line of conversation. Of course you're correct that non-human primates engage in horrifying behavior (as do humans), and a compelling case can be made that contemporary civilized society is better in many different ways from our "wild" past. Nonetheless, the distant past does provide clues that may in some cases be useful for society.
It seems like a mistake to base our ideas of parenting on those of chimpanzees.
It feels like there are a lot of ways where you could neither give our "ten+ year sentences" nor whip criminals. Do we have reason to believe this whipping policy reduces crime in some way?
Reason? no. Past history is the only evidence, and it's really low-quality. Frankly I find the whole topic a bit barbaric, was just going with the thread. I will say, however, that I'm old, was raised in a culture that had a very different attitude toward corporal punishment.
Through bizarre circumstances, I'm now in charge of a young boy, and while I'm careful to adhere to contemporary Rules of Parenting, the instinctive urges I get are difficult to ignore. Humans are primates, and they have powerful parenting instincts. Do we really know enough about human behavior to disregard these instincts? When I was young, parents used bottle instead of breast, because it was perceived as more scientific.
That's exactly what came to my mind. I'm also not ready to "go there" on corporal punishment for adults, but I don't think it's inconsistent to say "we should inflict less physical pain on naughty children, and more on convicted criminals in lieu of jailing the criminals for decades."
Perhaps, because straight-forwardly enough, it's a system ripe for abuse? (Practically guaranteed to produce lots of abuse and misuse.) If such a system were applied in a state in the United States, and it was applied unselectively, instead of being applied based on race-based criteria, it would be repealed about 2 seconds later. Because respectable people, like say, Mr. Yglesias over there, would wind up standing on the sidewalk getting viciously dressed down (in front of his kid) about jay-walking or some other bullshit.
That sort of thing does not make people happy.
(Dallas was notorious for using the prohibition on jay-walking to chase ... 'undesirables' ... out of downtown. 'Undesirable' here means black, homeless, funny-looking, etc. Your respectable Republican types might actually walk around occasionally near their office, and they didn't want to have 'those people' in their line of sight. Bored 20-something cops (also subject to the various impulse control issues you are talking about in your post) can be some seriously petty motherfuckers.
Of course, there's a 'real', recently live issue around that - stop and frisk. The same problem applies to hot spotting & etc. Welcome to Karen City.
Of course, Respectable White Dudes don't see this, precisely because it's supposed to be kept out of their sight. Cell phone video ripped that particular scab off tt voilá: a recent spate of police shootings of black men, wherein the video evidence strongly suggests the cops are massively overreacting based on race, and just flat executing people.
Hard to sell the improvement to the frontend of the system when it simply it isn't up to the job of making it work.
That's aside from the other two big problems: a plethora of piddly rules designed specifically to empower bored 20-something cops to be assholes so as to get rid of the undesirables. And the fact that the main problem of mass incarceration exists first and foremost among the Seven Sisters of the ex-Confederacy, and is basically harvesting for slave labor.
The existence of Gary Becker's argument (thanks, I had not known about it) is interesting, but it sure likes he merely provided the intellectual scaffolding for the underlying drive (starting in the 60's) to recreate the conditions of Jim Crow when Jim Crow itself was barred by law. (Which is grimly hilarious in a country that styles itself as 'the Land of the Free'.)
It sounds like you're describing a system of corporal punishment doled out on the spot by police officers, rather than after the trial, by a licensed corporal punisher.
Honestly there’s no reason to even go there. Effective deterrents for petty crime are the ones that are swift, certain and memorable— and ones where the miscreant is welcomed back into the community (on pain of good behavior) as soon as possible afterward. Physical pain is somewhere between useless and counterproductive— punishments of public embarrassment work just as well and have the salutary side effect of not requiring you to be the sort of state that has “chief whipper” as a place in your civil service rankings.
I think if you’re an impulsive young man with impulsive young male friends, you’re also going to be pretty macho about pain. You can’t tell your conspirators “let’s not do this, we might get spanked.” You’ll sound like a five-year-old.
Yet there are all kinds of male coming-of-age rituals about withstanding pain in the presence of the community. Touching things that are on fire. Putting your hand in a glove full of stinging insects. Taking a beat-down from the gang you’re joining. Overcoming these natural aversions often features prominently in a culture’s idea of masculinity.
Don't forget placing your hand in the box as you confront fear, the mind-killer, when one is tested with the Gom Jabbar: https://youtu.be/QrCfivcQe48?t=120
Aren't there are a number of "psychological" punishments that could fit the bill? Being forced to do embarrassing things that are intentionally anti-macho? It seems like the stocks was a mixture of discomfort and humiliation. Would that work?
The stocks were more than "discomfort and humiliation." There was literally no limit to what people could do to you during the time you were in the stocks. People were routinely maimed for life or even killed. Presumably this is not what you're describing, though.
The thing about the hot pan on the stove is that the feedback loop is instantaneous: touch pan, scream, drop pan. Et voila, you have learned an important lesson about pans.
The difficulty of generalizing that to pushing behavior days, weeks or months after the fact is why the entire field of criminology exists, and also why it's somewhat less than a settled science.
If that were true, humans would go extinct. The autonomous response of touching a hot stove and the resulting Pavlovian response is not comparable to risk-reward calculations. Over-riding that system is one of the main functions of our big frontal lobes. Giving birth is super painful, but many women make the conscious decision to have more children. Pushing past pain thresholds to win an athletic competition is a cliche. Heavily tattooed people who are 'addicted to pain' is too.
I think the whole idea of deterrence through punishment and "making an example" is contrary to things that we intuitively know about human psychology. Social pressure and perceived risk (of the don't-do-it-there-is-a-copy-watching variety) are very powerful deterrents for all kinds of behaviors.
I believe that is right. There's a lot of liberal and tolerant propaganda they have up everywhere, in all four languages (English, Mandarin, Malay, Tamil) that people of all racial groups and all religious groups are equally part of the community, but the fact that it is so insistent suggests to me that this hasn't really been internalized in the communities even to the extent that it has been in the United States.
I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but old age happeneth to them all.
It seems like we are recycling old ideas. One of Tocqueville's points about the success of the rule of law in America circa 1830 was "when justice is more certain and more mild, it is at the same time more efficacious." It is too bad that we forgot this lesson in the intervening 200 years, but thanks Matt for reminding us.
As one of your readers with past contact with the criminal justice system, I share your revulsion for long prison terms, but I think you're dodging one element: Regarding deterrence, you're spot-on. But don't you avoid/evade the issue that indeed there are some really bad-news violent criminals? I don't think the issue for them is deterrence nor some imagined moral equity, but protecting society. I don't know the statistics, but I'd guess that the large majority of seriously violent crime is committed by young men between the ages of roughly 16-28; locking such people up for 5-10 years would likely reduce violent crime in the community aside from any deterrence or (very unlikely) rehabilitation.
Also, just generally increasing the rate at which people are caught for burglary and muggings would statistically increase the number of murderers (or people who would escalate to murder) taken off the street for a few years, and also ought to interrupt cycles of revenge.
Your reductio ad absurdum is of course on-target, but disregards the balance of society's needs. Ignoring the ethical issues, which try to balance traditional notions of sin and justice with human compassion and the dignity of man, our messed-up criminal justice system faces a simple practical problem, which I took to be Matt's point: How can dangerous crime and public fear of same be balanced against decency and the cost of incarceration. I'd say that less than 0.1% of the population provides a very substantial fraction of violent crime, and I'd be ok with long-term incarceration of the most extreme members of that small population. Right now the prison population is more like 2.5 million, and a large fraction are doing time for relatively or completely nonviolent crimes.
I agree with you. Your response raises interesting questions about risk tolerance and made me think about how bad people are at assessing risk. Brings back all the comments of vaccinated people who are still afraid to go out.
Not my field, but my understanding is that professional assessments (e.g. by psychiatrists) of criminal risk are terrible. My understanding is that the best known way to estimate is actuarial, relying mainly on the past behavior of the person in question.
I'm curious what a "relatively nonviolent" crime is. Also, it's a little hard to pin down exact figures, but it appears that about half of people incarcerated in state prisons are there for violent crimes.
I think one problem is that we suck on supervising people out on parole in bail. In the Bay Area, Troy Ramon McAlister was let out of parole in last April for armed robbery. He was arrested six times prior to January where he ran over and killed two bikers during a car jacking. Despite being a parolee, he was caught and released for each of his arrests.
Similary, quite a few of the recent assaults against Asians are people on parole or bail. A few of them even had ankle monitors on which seemed to have little effect on their behavior. So I guess you're next article should be about the parole/ bail system.
I don't think this holds on the west coast anymore, where major city prosecutors have essentially legalized misdemeanors. I was caught in the middle of a mass shooting a couple of years back, which turned it to be three drug dealers having a shootout in the middle of downtown. They were all in their early to mid twenties and between them had been arrested literally over 100 times. These guys were getting caught constantly, but nothing ever happened to them so eight innocent bystanders got shot.
The ceiling on punishments is probably too high but we've also got to bring the floor back above zero.
Absolutely: this is an intolerable situation. When three dealers with 100 arrests between them still cannot shoot straight enough to avoid hitting bystanders, then something must be done. I think mandatory target practice for all three of them is the least that society demands.
As usual a thought provoking piece. And as usual, I have comments.
RE: Gary Becker. He presented a seminar at my institution while I was in grad school. The topic was "A Theory of Rational Addiction.". It would be fair to say the attendees were not impressed. The department was moderately liberal but no Berkely. As was usual for Chicago, the basis of the model was rational maximizing behavior. Perhaps, the decision to experiment with drugs can be framed that way. However, once one has a physiological dependence on a substance, rationality as the presumed basis of decision-making seems a weak reed.
RE: criminal Justice. I feel you left out an important element in the manner in which our current system operates. I'm referring to plea-bargaining. When police "catch" the alleged perpetrator of a crime, they systematically charge them under multiple statutes. This increases the leverage of prosecutors in negotiating plea-bargains. This reduces the costs of the judicial system. It is also particularly unfair to poor defendants who are typically represented by young, inexperienced, poorly compensated attorneys. A root and branch reform of the entire criminal justice system is indicated. Policing, judicial process, and incarceration ought to be modified to reduce the racism and class bias of the current system.
To me the big issue is that the public defense service ought to get a lot more money.
Catching criminals and punishing them is important, but so is ensuring that everyone has a vigorous defense. The way it works now the public defenders seem to often be overworked for low pay, but it's nonetheless actually fairly difficult to get a job as a public defender. Budgets should be adequate to hire more people to do this work, spread it out, and put less of a premium on conserving resources.
One of my good friends was a public defender in a small sized city (100k-200k). Being that this is government, everyone knew everyone's salary. The office secretary on her floor made more than she did.
As my friend said, the state was sending her a clear signal about how they valued her.
I agree with your premise. However, spending money to "defend criminals" is no more likely to appeal to elected officials than reducing mandatory minimums.
Better yet, pass a law tying public defender numbers, salary, and funding to prosecutor numbers, salary, and funding, ideally on a 1-to-1 or better equivalence.
That "Rational Addiction" paper is a famous one! I think the point of it is supposed to be to show the conditions under which the "physiological dependence" can make the resulting behavior "rational", and then explain the known characteristics of addictive behavior by assuming that they follow rationally from that.
I think the most interesting stuff in the alternative "bounded rationality" or "behavioral economics" angle on this still does the same thing of showing how, on one level or another, a kind of rationality is still there to help us explain and understand behavior that is, on the personal level, quite irrational.
Increasing resources to public defenders does not necessarily make the criminal justice system less effective - the intent is to make the prosecutor's office, which is only a part of the criminal justice system, less unjust. And since the poor are more likely to use the services of the public defender than the non-poor, I would guess that the communities most likely to be impacted would be in favor of the change. (I don't have polling data, so just speculating there.)
I guess I neither know nor care about the inner life of public defenders, as long as they're acting as a check on prosecutors in a way that's compatible with improving the criminal justice system and increasing the amount of justice in society. If they're not doing that, then there needs to be a way to hold them accountable, too.
From what I can tell by looking at the internets (caveat emptor), the lawsuit is about keeping court remote, rather than in-person, for coronavirus and disability related reasons, rather than 'we don't want the court system to operate at all'. And I don't know if it's the same one you're talking about, but it looks like it was in early July 2020, and by late July 2020 it was dismissed.
1) If you haven't tried doubt before, I recommend it. It helps keep ideas moving, kind of like fiber.
2) It seems to me that most of the 6th amendment impediments to criminal trials could be voluntarily waived or technologically overcome, but there are hurdles in there, sure. Obviously, the 6th amendment does not say anything about Zoom meetings explicitly, so I'm curious about what grounds you feel that they cannot be conducted remotely and constitutionally.
Paying public defenders more could mitigate this, too. Right now the people who become public defenders—especially in "prestige" cities—basically have to be true believers; anybody else is going to see the salary and the workload and go into just about any other field of law there is instead.
Attorneys have ethical and constitutional obligations to zealously represent their clients. A criminal defense attorney, private or public, who does not aim to obstruct the criminal justice system has no business being an attorney. And the system doesn't function how it's designed to at all if they can't because of caseloads.
Poor and minorities are not benefited by traffic stops for broken taillights or misplaced temporary license plates. They are not benefited by excessive drug arrests. Crime which seriously impacts these neighborhoods,e.g. murders, are not treated as priorities for investigation.
Minorities aren't benefitted by pretextual stops. I also think the police probably aren't in the long run--a major part of why virtually all lawyers think cops are pathological liars on the stand is that pretextual stops are used so often and are so heavily racially motivated.
Really interesting analysis, and the idea of increasing use of ankle monitors is appealing to me. Two thoughts:
1. I think you gave short shrift to the "incapacitation" argument. The way I see it - a small number of people commit the vast majority of violent crime. Something like 60% of violent crimes are committed by repeat offenders. The idea of putting those people in a box to keep them away from society (perhaps until they're dulled by the effects of age, per your chart) is very rational.
2. It's not clear that your proposal of catching more criminals (but having shorter average sentences) will reduce the prison population. A lot of that hinges on the ability of our irrational criminals to respond much better to short-term incentives than long-term ones, as well as on the likelihood that they don't just commit more crimes and earn longer sentences subsequently. Regardless, I'm fully behind catching and successfully prosecuting more criminals. If the result of keeping our streets safe from predatory criminals was more people in prison, I'd make that trade every day of the week.
"If you want to solve more crimes, you need to make a point of investing in and rewarding that activity."
If police are rewarded for "solving" cases, it seems like an incentive to make sure someone goes to jail for each crime, but not necessarily the person who committed the crime.
The many cops and assistant DA's in my acquaintance all agree that society survives because of the impulsivity and shortsightedness of the criminal class. Only in the movies do you find crooks who case the joint or even plan a good way of getting away from the scene. In many ways, this comes down to the fact that robbery, mugging, and burglary are pretty much a high-risk waste of time.
I think a very large percentage of the front-line crimes like this are driven by addiction, which is itself something that produces short-term thinking and poor risk-reward assessment. I’m sympathetic in some ways, I just wish instead of breaking a $200 car window to steal something worth $10 to get high for the next 4 hours, we could, like, get them to ride an exercise bike for a couple of hours for $10 (or just give them the drugs directly). The lack of universal, time-investment-based ways to make relatively petty amounts of money comes at a large cost for everyone else. This is also (less strictly tied to addiction of course) why I think the gig economy has more value than is ascribed to it. Having low-barrier-to-entry ways to do a few hours of work and make a few bucks is useful for a lot of people whose lives are somewhat disordered.
I remember some years ago a House debate on some crime prevention bill being defended by Barney Frank, with someone saying that "smart criminals" could easily evade the measures being proposed, and Frank responding "so we'll catch the dumb criminals."
One thing that is definitely needed if you want to catch and convict more criminals is a big investment in criminal justice.
There is a desperate shortage of public defenders, but there are also nothing like enough judges, juries are used amazingly inefficiently (ask anyone who did jury service how long they actually spent in the jury box), and there aren't even enough prosecutors, the one bit of the system that does get invested in.
There are also problems with jails (where people are held prior to conviction), though more efficient courts might resolve the overcrowding there.
And bringing conviction closer to the commission of the offence also helps with the short-termism of criminals. Anyone who has ever trained a pet knows that you have to punish quickly or they forget what they are being punished for. Humans have longer-term thinking than the average cat or dog, but not indefinitely long.
Agreed on all nearly all of this, especially the judges and public defenders bit. Nearly all because the big solution to jail (i.e. pretrial) overcrowding is bail reform—that is, not putting the bulk of criminal defendants who have not yet been tried in jail except a brief holding period before the detention hearing. This system has worked in both the federal courts and in New Jersey (there have been some high-profile "failures" but statistically these were expected).
It will take a better mind than I currently possess to make rational counter-arguments to this analysis. I don't think there are any. But I would note that in the aftermath of the Wall St meltdown the endless cries for the incarceration of just about everyone on Wall st managed to ignore the fact that not that many committed actual crimes. Torts are not crimes and a complete lack of regulation of whole classes of investment instruments like derivatives made a lot of prosecutions of any sort impossible. Nor did I think much of the idea of imposing crippling fines on financial institutions that the government via TARP had to rescue just to to avert a massive liquidity crisis. That would have been very stupid. As would have been the idea that a saved Wall St should be compelled to lend money to people to save Main st when the problem was they lent money where they should never have done so.
There's a similar problem with prosecuting insider trading. Our insider trading laws go back to the 1930's and quite a few of the insider trading convictions were reversed because courts found that the defendants simply hadn't violated the law as written.
Where is VP Harris on this? Seems like something she should know a lot about. Didn't she write a book called Smart on Crime? I seem to recall she proposed shorter sentences, increased police presence, programs to reduce recidivism, etc.
In DC, it was reported that one of the children who murdered the Uber driver had recently also been caught committing another carjacking. I haven't done the statistical analysis on this, but that's something I see a fair amount in violent crimes here - that the perpetrator has recently been caught for illegal gun possession, assault, etc., and they're out on the streets again quickly (in some cases, immediately and while awaiting trial, in some cases after getting a deal involving no or very little jail time.) I don't know to what extent that's a national or merely local phenomenon. That seems bad. Like, extremely bad, both because murder is terrible but also because the government seems to me to be more responsible for a murder committed by someone they just saw for another violent crime and decided to let go. As for doing monitoring instead, that requires a level of competence that may not exist.
DC also had a case this summer where an adult was arrested for murder, LET OUT ON BOND (technically personal recognizance since DC eliminated cash bail), and then shockingly murdered someone else the next week.
This tends to be a typical argument from both the DC Police Union (which avoids the histrionics of the NYPD union) and MPD leadership, that they make arrests for guns and violent crime and the same dudes are out doing more crimes the next day or week.
For a brief moment over the summer MPD was including the crimes which murder suspects were already on probation / parole for in their press releases when they made arrests, which helped highlight the fact that a ton of DCs murderers had previously been convicted of or were awaiting trial for gun crimes or violent crimes and were not incarcerated.
It would be nice to get a pro publica-style data investigation into the priors of murder suspects.
The point that this isn't even anything to do with the police is a good one - they are not the ones making charging decisions.
The murderer is only being tried as a juvenile even though the law allows her to be tried as an adult. This is why people hate liberals.
I'm generally a tough on crime guy but the American idea of "tried as an adult" seems bad to me. Why should a person well under the age of 18 (these girls were 13 and 15) suddenly become an "adult" if they commit a crime?
They don't enjoy adult privileges such as being able to vote or buy alcohol, it seems unfair to treat them as adults only if they commit a crime.
The problem seems to be that crimes committed by legal juveniles are handled so wildly differently at sentencing that in cases of violent crime it (rightly or wrongly) starts to feel ludicrous that they're being let off so much easier just by virtue of being a couple of months or a year short of the arbitrary age of 18. Some sort of system where crimes committed by people in their late teens are treated differently than crimes committed in their early teens and crimes committed by pre-teens would seem to make more sense than just having a binary "adult" or "juvenile" designation.
The murderer is being tried as a juvenile, presumably, because the murderer *is* a juvenile. Children can be tried as adults in this country, but if it can be done the other way around, this is the first I've heard of it.
It does not make me hate liberals, but the crime and school closures do make me wish that the Republicans would at least make a token attempt at cities in order to raise these issues.
I have been intrigued by several recent popular press articles about detectives settling murder cold-cases via DNA, sometimes through reconstructing family trees in order to reduce the number of leads to a manageable size.
I think that's a great way to clear cases. Here's an even better one:
Put a few billion dollars into testing and banking every rape kit in the country. There are thousands of them lying around, untested. That right there is a fast clearance-method, lying to hand.
"But rapes are hard to prosecute and convict!" you say. And so they are, which is a topic for another post (it's a toxic stew of misogyny and patriarchy, and the fault lies with jurors as much as prosecutors).
But serial rapes are relatively easy to get convictions on. And I am not alone in suspecting that serial rape is fairly common, and would be revealed to be so by a national inventory of the DNA from rape kits.
This would be an excellent use of time and money by the Biden administration. Making people less likely to get raped makes them less afraid to work and travel freely. Looks like smart infrastructure spending to me.
I'm honestly surprised something like that hasn't already been done. Rape kit backlogs are a fairly evergreen systemic failure complaint and it would seem to be a relatively easy problem to throw money at and solve.
"it's a toxic stew of misogyny and patriarchy, and the fault lies with jurors as much as prosecutors"
LoL, patriarchy! But never mind all that: There is also the high number of false accusations. One DOJ study found a rate of 41%.
https://www.ojp.gov/ncjrs/virtual-library/abstracts/false-rape-allegations
Yes, and other studies have found the rate to be about the same as for reports of other crimes, i.e. about a 7% to 10% rate of false accusations.
But never mind that: once you have ten rape accusations all tied to one man's DNA, it's going to be a lot easier to persuade a jury that none of them are false.
Process all of the rape kits, and a lot of these cases will come to light.
"Process all of the rape kits"
I'm all for that.
Yeah, it's one of those weird things where most people say that they agree, and yet year after year it never gets done.
(Possibly because my T-shirt saying "I'm not personally worried about what would be found out if rape kits were tested, I'm just saying there are other priorities" has people asking a lot of questions already answered by my shirt.)
It's not as simple as it sounds. Testing kits requires lab space and time, and material, all of which would have to be weighed against the current press of evidence to be tested. Because the chain of custody for the evidence has to be maintained, the testing can't be done by just any lab. So you wind up with needing to open or license multiple new crime labs to deal with the backlog, but knowing you won't need them once the backlog is worked through. I mean, if you can come up with a good workaround, I'm all ears, but so far no one's figured it out.
But that sounds like *exactly* the sort of situation where money and political will solves the problem. The technical challenges that you are describing are exactly like those that we faced in ramping up the production and administration of vaccines in the face of a pandemic.
Of course it's not simple to "process the tests" -- nor is it simple to "vaccinate the nation" But when the money and the will are there, we figure out ways to do things, even if they are not as simple as a slogan.
Thanks for explaining this - I’ve always wondered. Based on that explanation it seems like something where more money would help - the current situation is outrageous.
If I recall correctly, the rate of false "rape allegations" is fairly high, where someone says falsely, "I was raped by an unknown assailant". False "rape accusations", where someone says falsely "I was raped by this particular person", on the other hand, are fairly low.
This is one of Matt's best posts to date. I seem to recall a previous one he did which touched on criminal justice but did not acknowledge many important issues such as the typically high time preference and below average IQ of criminals.
Actually his post today touches on some points I made in response to that post, in particular re the importance of a short time frame between crime and punishment - this is v. important when dealing with such people.
My proposals were a good deal more controversial than Matt's are though - I proposed a return to the use of corporal punishment.
It's probably true that short but certain prison sentences are a more effective deterrent than long but unlikely ones.
However I believe, that, particularly for the types of people who commit street crimes, corporal punishment would be more effective yet.
Ideally it should be performed as soon as possible after the crime was committed, and the criminal's memory of the crime should be "refreshed" immediately beforehand, for instance by being made to watch CCTV footage of the crime if available.
Corporal punishment is in many ways genuinely kinder than imprisonment too - ask yourself, how many months / years in prison would you willingly spend in order to avoid, say, 10 lashes?
Peter Moskos' book on this is interesting and I think somewhat convincing. But I'm not sure I'm convinced enough to "go there" at exactly this point.
Yeah thanks. Someone recommended that to me in response to my previous posts but I haven't got around to reading it.
I think that "going there" on corporal punishment would be a pretty big step for anyone, especially anyone who considers himself a liberal.
But I do think there is an a weird disconnect in that fact that several first world nations including the US and Japan have capital punishment but do not even consider corporal punishment, which is seen as fit only for barbaric countries such as Saudi Arabia.
Meanwhile, corporal punishment *for children* is still widely seen as normal, though it's become more controversial, and there are campaigns to ban it, some of which have succeeded in places.
This punishment is carried out without judge, jury, sentencing guidelines or any other kind of standards or safeguards for the most part, and is generally highly inconsistent due to differing parental attitudes.
Doesn't the research on spanking children come out pretty neutral to bad?
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3447048/
It seems like spanking children should be less normalized, not that spanking adults should be more normalized.
Perhaps. But physical punishment of children is often somewhat random, and based more on parental temperament than what the child actually did.
I was merely pointing out it's ironic that we allow (in most places) corporal punishment or children with basically no checks or balances, but recoil from the idea of a measured system of physically punishing adults.
IMHO the research on effects of corporal punishment on kids is exceedingly flawed. The questions are very tough to answer "scientifically" with reasonable validity (the kinds of parents who spank, and the kinds of kids who get spanked, are not, in general, identical to those who do not, and it is virtually impossible to adjust properly, even if the author tries. Beyond the JR-version argument which I find quite reasonable (not because I am a fan of whipping, but because I find the ten+ year sentences inflicted in the US to be immeasurably cruel), I think there's a pretty substantial evolutionary argument. Do chimpanzees do "time out"? Do hunter-gatherer societies give long lectures to small children who are getting on daddy's nerves? Of course, measures that might be appropriate for small kids might not be for adults, and one must consider the prevailing cultural values.
Be careful to avoid the "appeal to nature" fallacy. Chimps will commit genocide against neighboring chimp communities. Some other primates commit infanticide as a matter of course. Our cousins in the animal kingdom -- while they may shed some light on human nature -- are not necessarily promising roll models.
Honestly I regret even moving into this line of conversation. Of course you're correct that non-human primates engage in horrifying behavior (as do humans), and a compelling case can be made that contemporary civilized society is better in many different ways from our "wild" past. Nonetheless, the distant past does provide clues that may in some cases be useful for society.
It seems like a mistake to base our ideas of parenting on those of chimpanzees.
It feels like there are a lot of ways where you could neither give our "ten+ year sentences" nor whip criminals. Do we have reason to believe this whipping policy reduces crime in some way?
Reason? no. Past history is the only evidence, and it's really low-quality. Frankly I find the whole topic a bit barbaric, was just going with the thread. I will say, however, that I'm old, was raised in a culture that had a very different attitude toward corporal punishment.
Through bizarre circumstances, I'm now in charge of a young boy, and while I'm careful to adhere to contemporary Rules of Parenting, the instinctive urges I get are difficult to ignore. Humans are primates, and they have powerful parenting instincts. Do we really know enough about human behavior to disregard these instincts? When I was young, parents used bottle instead of breast, because it was perceived as more scientific.
why not both
That's exactly what came to my mind. I'm also not ready to "go there" on corporal punishment for adults, but I don't think it's inconsistent to say "we should inflict less physical pain on naughty children, and more on convicted criminals in lieu of jailing the criminals for decades."
Perhaps, because straight-forwardly enough, it's a system ripe for abuse? (Practically guaranteed to produce lots of abuse and misuse.) If such a system were applied in a state in the United States, and it was applied unselectively, instead of being applied based on race-based criteria, it would be repealed about 2 seconds later. Because respectable people, like say, Mr. Yglesias over there, would wind up standing on the sidewalk getting viciously dressed down (in front of his kid) about jay-walking or some other bullshit.
That sort of thing does not make people happy.
(Dallas was notorious for using the prohibition on jay-walking to chase ... 'undesirables' ... out of downtown. 'Undesirable' here means black, homeless, funny-looking, etc. Your respectable Republican types might actually walk around occasionally near their office, and they didn't want to have 'those people' in their line of sight. Bored 20-something cops (also subject to the various impulse control issues you are talking about in your post) can be some seriously petty motherfuckers.
Of course, there's a 'real', recently live issue around that - stop and frisk. The same problem applies to hot spotting & etc. Welcome to Karen City.
Of course, Respectable White Dudes don't see this, precisely because it's supposed to be kept out of their sight. Cell phone video ripped that particular scab off tt voilá: a recent spate of police shootings of black men, wherein the video evidence strongly suggests the cops are massively overreacting based on race, and just flat executing people.
Hard to sell the improvement to the frontend of the system when it simply it isn't up to the job of making it work.
That's aside from the other two big problems: a plethora of piddly rules designed specifically to empower bored 20-something cops to be assholes so as to get rid of the undesirables. And the fact that the main problem of mass incarceration exists first and foremost among the Seven Sisters of the ex-Confederacy, and is basically harvesting for slave labor.
The existence of Gary Becker's argument (thanks, I had not known about it) is interesting, but it sure likes he merely provided the intellectual scaffolding for the underlying drive (starting in the 60's) to recreate the conditions of Jim Crow when Jim Crow itself was barred by law. (Which is grimly hilarious in a country that styles itself as 'the Land of the Free'.)
elm
['No such thing as a rational actor.']
I think the ideal here would be something lie swift, certain punishment combined with laws that actually make sense to enforce.
Advocates in a number of cities are currently working to take walking and biking offenses off the criminal books. See: https://bikewalkkc.org/advocacy/decriminalizing/ or https://greenpointpost.com/constantinides-to-introduce-bill-to-decriminalize-jaywalking-in-nyc
Something, in my opinion, worth getting behind!
It sounds like you're describing a system of corporal punishment doled out on the spot by police officers, rather than after the trial, by a licensed corporal punisher.
Honestly there’s no reason to even go there. Effective deterrents for petty crime are the ones that are swift, certain and memorable— and ones where the miscreant is welcomed back into the community (on pain of good behavior) as soon as possible afterward. Physical pain is somewhere between useless and counterproductive— punishments of public embarrassment work just as well and have the salutary side effect of not requiring you to be the sort of state that has “chief whipper” as a place in your civil service rankings.
I'd say getting spanked in public is pretty embarrassing, even emasculating
Yeah, "spanking" is not exactly what goes on in public whippings.
But letting that threat change your behavior is as emasculating as it gets.
This all seems right, but I think that some of the point is that incarceration is even worse than physical pain on both fronts.
I think if you’re an impulsive young man with impulsive young male friends, you’re also going to be pretty macho about pain. You can’t tell your conspirators “let’s not do this, we might get spanked.” You’ll sound like a five-year-old.
I think people are pretty much wired not to repeat actions that cause pain.
For example, if you are cooking and accidentally touch the hot saucepan, it hurts. You learn not to repeat that action.
Yet there are all kinds of male coming-of-age rituals about withstanding pain in the presence of the community. Touching things that are on fire. Putting your hand in a glove full of stinging insects. Taking a beat-down from the gang you’re joining. Overcoming these natural aversions often features prominently in a culture’s idea of masculinity.
Don't forget placing your hand in the box as you confront fear, the mind-killer, when one is tested with the Gom Jabbar: https://youtu.be/QrCfivcQe48?t=120
Aren't there are a number of "psychological" punishments that could fit the bill? Being forced to do embarrassing things that are intentionally anti-macho? It seems like the stocks was a mixture of discomfort and humiliation. Would that work?
The stocks were more than "discomfort and humiliation." There was literally no limit to what people could do to you during the time you were in the stocks. People were routinely maimed for life or even killed. Presumably this is not what you're describing, though.
Yes, my comment was somewhat tongue-in-cheek. Any kind of incarceration alternative seems difficult to calibrate.
The thing about the hot pan on the stove is that the feedback loop is instantaneous: touch pan, scream, drop pan. Et voila, you have learned an important lesson about pans.
The difficulty of generalizing that to pushing behavior days, weeks or months after the fact is why the entire field of criminology exists, and also why it's somewhat less than a settled science.
If that were true, humans would go extinct. The autonomous response of touching a hot stove and the resulting Pavlovian response is not comparable to risk-reward calculations. Over-riding that system is one of the main functions of our big frontal lobes. Giving birth is super painful, but many women make the conscious decision to have more children. Pushing past pain thresholds to win an athletic competition is a cliche. Heavily tattooed people who are 'addicted to pain' is too.
I think the whole idea of deterrence through punishment and "making an example" is contrary to things that we intuitively know about human psychology. Social pressure and perceived risk (of the don't-do-it-there-is-a-copy-watching variety) are very powerful deterrents for all kinds of behaviors.
I agree! Great post.
Somehow I don't think that what works in a Confucian culture is going to be remotely palatable in ours.
A third of Singapore is Hindu or Muslim. It's not a "Confucian culture", unless you believe the propaganda of the Chinese elite.
Fair enough. But the ruling group is Chinese, no?
I believe that is right. There's a lot of liberal and tolerant propaganda they have up everywhere, in all four languages (English, Mandarin, Malay, Tamil) that people of all racial groups and all religious groups are equally part of the community, but the fact that it is so insistent suggests to me that this hasn't really been internalized in the communities even to the extent that it has been in the United States.
Boy, that graph of arrest rates by age really speaks to me.
Since I turned 60, I hardly ever get arrested for robbery anymore.
Steal smarter vs running away smarter. Ha!
I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but old age happeneth to them all.
A lawyer with his briefcase can steal more than a hundred men with guns.
Omar's [second] coming!
It seems like we are recycling old ideas. One of Tocqueville's points about the success of the rule of law in America circa 1830 was "when justice is more certain and more mild, it is at the same time more efficacious." It is too bad that we forgot this lesson in the intervening 200 years, but thanks Matt for reminding us.
As one of your readers with past contact with the criminal justice system, I share your revulsion for long prison terms, but I think you're dodging one element: Regarding deterrence, you're spot-on. But don't you avoid/evade the issue that indeed there are some really bad-news violent criminals? I don't think the issue for them is deterrence nor some imagined moral equity, but protecting society. I don't know the statistics, but I'd guess that the large majority of seriously violent crime is committed by young men between the ages of roughly 16-28; locking such people up for 5-10 years would likely reduce violent crime in the community aside from any deterrence or (very unlikely) rehabilitation.
Yeah, I don't disagree. Just that 5-10 years for a serious crime is not a very long sentence in the American context.
I agree completely. America's sentencing regime is beyond extreme. The covertly barbaric nature of the prison system is not widely appreciated.
Also, just generally increasing the rate at which people are caught for burglary and muggings would statistically increase the number of murderers (or people who would escalate to murder) taken off the street for a few years, and also ought to interrupt cycles of revenge.
If we’d preemptively lock up every male from 15 until they turn 35, we’d probably eliminate all violent crime. Interesting thought.
Your reductio ad absurdum is of course on-target, but disregards the balance of society's needs. Ignoring the ethical issues, which try to balance traditional notions of sin and justice with human compassion and the dignity of man, our messed-up criminal justice system faces a simple practical problem, which I took to be Matt's point: How can dangerous crime and public fear of same be balanced against decency and the cost of incarceration. I'd say that less than 0.1% of the population provides a very substantial fraction of violent crime, and I'd be ok with long-term incarceration of the most extreme members of that small population. Right now the prison population is more like 2.5 million, and a large fraction are doing time for relatively or completely nonviolent crimes.
I agree with you. Your response raises interesting questions about risk tolerance and made me think about how bad people are at assessing risk. Brings back all the comments of vaccinated people who are still afraid to go out.
Not my field, but my understanding is that professional assessments (e.g. by psychiatrists) of criminal risk are terrible. My understanding is that the best known way to estimate is actuarial, relying mainly on the past behavior of the person in question.
Which is why this thread is basically a compressed version of the rationale behind minimum sentences and three-strikes laws.
I'm curious what a "relatively nonviolent" crime is. Also, it's a little hard to pin down exact figures, but it appears that about half of people incarcerated in state prisons are there for violent crimes.
I also wonder how many of the nonviolent crimes are plea-bargains down from violent crimes.
I suggest you'd vastly increase the amount of violent crime, you'd just be moving it to prisons.
I think one problem is that we suck on supervising people out on parole in bail. In the Bay Area, Troy Ramon McAlister was let out of parole in last April for armed robbery. He was arrested six times prior to January where he ran over and killed two bikers during a car jacking. Despite being a parolee, he was caught and released for each of his arrests.
Similary, quite a few of the recent assaults against Asians are people on parole or bail. A few of them even had ankle monitors on which seemed to have little effect on their behavior. So I guess you're next article should be about the parole/ bail system.
I don't think this holds on the west coast anymore, where major city prosecutors have essentially legalized misdemeanors. I was caught in the middle of a mass shooting a couple of years back, which turned it to be three drug dealers having a shootout in the middle of downtown. They were all in their early to mid twenties and between them had been arrested literally over 100 times. These guys were getting caught constantly, but nothing ever happened to them so eight innocent bystanders got shot.
The ceiling on punishments is probably too high but we've also got to bring the floor back above zero.
Absolutely: this is an intolerable situation. When three dealers with 100 arrests between them still cannot shoot straight enough to avoid hitting bystanders, then something must be done. I think mandatory target practice for all three of them is the least that society demands.
And NRA memberships
As usual a thought provoking piece. And as usual, I have comments.
RE: Gary Becker. He presented a seminar at my institution while I was in grad school. The topic was "A Theory of Rational Addiction.". It would be fair to say the attendees were not impressed. The department was moderately liberal but no Berkely. As was usual for Chicago, the basis of the model was rational maximizing behavior. Perhaps, the decision to experiment with drugs can be framed that way. However, once one has a physiological dependence on a substance, rationality as the presumed basis of decision-making seems a weak reed.
RE: criminal Justice. I feel you left out an important element in the manner in which our current system operates. I'm referring to plea-bargaining. When police "catch" the alleged perpetrator of a crime, they systematically charge them under multiple statutes. This increases the leverage of prosecutors in negotiating plea-bargains. This reduces the costs of the judicial system. It is also particularly unfair to poor defendants who are typically represented by young, inexperienced, poorly compensated attorneys. A root and branch reform of the entire criminal justice system is indicated. Policing, judicial process, and incarceration ought to be modified to reduce the racism and class bias of the current system.
To me the big issue is that the public defense service ought to get a lot more money.
Catching criminals and punishing them is important, but so is ensuring that everyone has a vigorous defense. The way it works now the public defenders seem to often be overworked for low pay, but it's nonetheless actually fairly difficult to get a job as a public defender. Budgets should be adequate to hire more people to do this work, spread it out, and put less of a premium on conserving resources.
One of my good friends was a public defender in a small sized city (100k-200k). Being that this is government, everyone knew everyone's salary. The office secretary on her floor made more than she did.
As my friend said, the state was sending her a clear signal about how they valued her.
Federal Public Defenders are paid comparably to AUSAs and those jobs are *very* hard to get.
I agree with your premise. However, spending money to "defend criminals" is no more likely to appeal to elected officials than reducing mandatory minimums.
Pass a law saying that when a sitting member of the legislature is prosecuted for corruption, they must be represented by a public defender. :P
Better yet, pass a law tying public defender numbers, salary, and funding to prosecutor numbers, salary, and funding, ideally on a 1-to-1 or better equivalence.
I think this is something that could only be done at the federal level. Direct federal grants to public defender's offices meeting certain criteria.
That "Rational Addiction" paper is a famous one! I think the point of it is supposed to be to show the conditions under which the "physiological dependence" can make the resulting behavior "rational", and then explain the known characteristics of addictive behavior by assuming that they follow rationally from that.
I think the most interesting stuff in the alternative "bounded rationality" or "behavioral economics" angle on this still does the same thing of showing how, on one level or another, a kind of rationality is still there to help us explain and understand behavior that is, on the personal level, quite irrational.
Increasing resources to public defenders does not necessarily make the criminal justice system less effective - the intent is to make the prosecutor's office, which is only a part of the criminal justice system, less unjust. And since the poor are more likely to use the services of the public defender than the non-poor, I would guess that the communities most likely to be impacted would be in favor of the change. (I don't have polling data, so just speculating there.)
I guess I neither know nor care about the inner life of public defenders, as long as they're acting as a check on prosecutors in a way that's compatible with improving the criminal justice system and increasing the amount of justice in society. If they're not doing that, then there needs to be a way to hold them accountable, too.
From what I can tell by looking at the internets (caveat emptor), the lawsuit is about keeping court remote, rather than in-person, for coronavirus and disability related reasons, rather than 'we don't want the court system to operate at all'. And I don't know if it's the same one you're talking about, but it looks like it was in early July 2020, and by late July 2020 it was dismissed.
1) If you haven't tried doubt before, I recommend it. It helps keep ideas moving, kind of like fiber.
2) It seems to me that most of the 6th amendment impediments to criminal trials could be voluntarily waived or technologically overcome, but there are hurdles in there, sure. Obviously, the 6th amendment does not say anything about Zoom meetings explicitly, so I'm curious about what grounds you feel that they cannot be conducted remotely and constitutionally.
Paying public defenders more could mitigate this, too. Right now the people who become public defenders—especially in "prestige" cities—basically have to be true believers; anybody else is going to see the salary and the workload and go into just about any other field of law there is instead.
How do we fix these issues with public defenders, then? Or is there no fixing them, and we should just stop having public defenders?
Attorneys have ethical and constitutional obligations to zealously represent their clients. A criminal defense attorney, private or public, who does not aim to obstruct the criminal justice system has no business being an attorney. And the system doesn't function how it's designed to at all if they can't because of caseloads.
Poor and minorities are not benefited by traffic stops for broken taillights or misplaced temporary license plates. They are not benefited by excessive drug arrests. Crime which seriously impacts these neighborhoods,e.g. murders, are not treated as priorities for investigation.
Minorities aren't benefitted by pretextual stops. I also think the police probably aren't in the long run--a major part of why virtually all lawyers think cops are pathological liars on the stand is that pretextual stops are used so often and are so heavily racially motivated.
Really interesting analysis, and the idea of increasing use of ankle monitors is appealing to me. Two thoughts:
1. I think you gave short shrift to the "incapacitation" argument. The way I see it - a small number of people commit the vast majority of violent crime. Something like 60% of violent crimes are committed by repeat offenders. The idea of putting those people in a box to keep them away from society (perhaps until they're dulled by the effects of age, per your chart) is very rational.
2. It's not clear that your proposal of catching more criminals (but having shorter average sentences) will reduce the prison population. A lot of that hinges on the ability of our irrational criminals to respond much better to short-term incentives than long-term ones, as well as on the likelihood that they don't just commit more crimes and earn longer sentences subsequently. Regardless, I'm fully behind catching and successfully prosecuting more criminals. If the result of keeping our streets safe from predatory criminals was more people in prison, I'd make that trade every day of the week.
Your title slightly misrepresents your thesis, I think. You want
"More incarcerations, not more incarceration,"
i.e. more individuals caught and punished, for shorter periods of time.
(That old count-noun/mass-noun problem.)
"If you want to solve more crimes, you need to make a point of investing in and rewarding that activity."
If police are rewarded for "solving" cases, it seems like an incentive to make sure someone goes to jail for each crime, but not necessarily the person who committed the crime.
Yeah, incentive structures are like the hardest things to design.
The many cops and assistant DA's in my acquaintance all agree that society survives because of the impulsivity and shortsightedness of the criminal class. Only in the movies do you find crooks who case the joint or even plan a good way of getting away from the scene. In many ways, this comes down to the fact that robbery, mugging, and burglary are pretty much a high-risk waste of time.
I think a very large percentage of the front-line crimes like this are driven by addiction, which is itself something that produces short-term thinking and poor risk-reward assessment. I’m sympathetic in some ways, I just wish instead of breaking a $200 car window to steal something worth $10 to get high for the next 4 hours, we could, like, get them to ride an exercise bike for a couple of hours for $10 (or just give them the drugs directly). The lack of universal, time-investment-based ways to make relatively petty amounts of money comes at a large cost for everyone else. This is also (less strictly tied to addiction of course) why I think the gig economy has more value than is ascribed to it. Having low-barrier-to-entry ways to do a few hours of work and make a few bucks is useful for a lot of people whose lives are somewhat disordered.
I remember some years ago a House debate on some crime prevention bill being defended by Barney Frank, with someone saying that "smart criminals" could easily evade the measures being proposed, and Frank responding "so we'll catch the dumb criminals."
I miss Barney.
One thing that is definitely needed if you want to catch and convict more criminals is a big investment in criminal justice.
There is a desperate shortage of public defenders, but there are also nothing like enough judges, juries are used amazingly inefficiently (ask anyone who did jury service how long they actually spent in the jury box), and there aren't even enough prosecutors, the one bit of the system that does get invested in.
There are also problems with jails (where people are held prior to conviction), though more efficient courts might resolve the overcrowding there.
And bringing conviction closer to the commission of the offence also helps with the short-termism of criminals. Anyone who has ever trained a pet knows that you have to punish quickly or they forget what they are being punished for. Humans have longer-term thinking than the average cat or dog, but not indefinitely long.
Agreed on all nearly all of this, especially the judges and public defenders bit. Nearly all because the big solution to jail (i.e. pretrial) overcrowding is bail reform—that is, not putting the bulk of criminal defendants who have not yet been tried in jail except a brief holding period before the detention hearing. This system has worked in both the federal courts and in New Jersey (there have been some high-profile "failures" but statistically these were expected).
It will take a better mind than I currently possess to make rational counter-arguments to this analysis. I don't think there are any. But I would note that in the aftermath of the Wall St meltdown the endless cries for the incarceration of just about everyone on Wall st managed to ignore the fact that not that many committed actual crimes. Torts are not crimes and a complete lack of regulation of whole classes of investment instruments like derivatives made a lot of prosecutions of any sort impossible. Nor did I think much of the idea of imposing crippling fines on financial institutions that the government via TARP had to rescue just to to avert a massive liquidity crisis. That would have been very stupid. As would have been the idea that a saved Wall St should be compelled to lend money to people to save Main st when the problem was they lent money where they should never have done so.
There's a similar problem with prosecuting insider trading. Our insider trading laws go back to the 1930's and quite a few of the insider trading convictions were reversed because courts found that the defendants simply hadn't violated the law as written.
Great nym. Truly excellent nym.
Where is VP Harris on this? Seems like something she should know a lot about. Didn't she write a book called Smart on Crime? I seem to recall she proposed shorter sentences, increased police presence, programs to reduce recidivism, etc.