November 9, 2009
Mark Kleiman was guest blogging recently over at the Volokh Consipiracy. I’ve been very interested in his posts, which deal less with individual laws than with the philosophy of the justice system. As with most such discussions I find myself agreeing with his goals while taking issue with his proposed methods. His goal? To achieve “half and half”: Half as much crime and half as many people behind bars in a decade. A most worthy goal.
“For three decades, in the face of the great crime wave that started in the early 1960s, we have been trying to solve our crime problem with brute force: building more and more prisons and jails. We now keep 2.4 million of our fellow human beings under lock and key at any one time, and that number has continued to grow despite the spectacular drop in crime between 1994 and 2004, which took crime rates to 50% of their peak levels.
Imprisonment at five times the historical level in the United States, and at five times the level of any of the countries with which we would like to compare ourselves, has not been sufficient to fully reverse the growth in crime; current crime rates are still at 2.5 times the level of the late 1950s and early 1960s.”
He goes on to promote the idea of removing the vengeance from justice and attempting to reduce it to a cost/benefit analysis between the cost of enforcement and the public benefit received. He estimates the cost of crime in America (excluding white collar crime) to be around ten percent of GDP.
He believes punishment should be swift and certain rather than severe, and he reminds us that punishment is always a cost, not a benefit.
Kleiman proposes starting and ending the school day later to lessen the after school time adolescents have to commit crimes.
“imagine a classroom full of unruly children. When Johnnie throws a spitball at Suzie, Ms. Jones is too distracted by the need to break up the fight between Dick and Fred to have time to rebuke Johnnie, let alone the six others who are acting out at the same time. Johnnie and the others learn that they can get away with almost anything in Ms. Jones’s class.”
“Thus both the well-behaved and the ill-behaved classroom are self-sustaining situations. Indeed, they can be two equilibria of the same system: the very same children with the very same teacher may wind up either well-behaved or ill-behaved as the result of random accidents at the beginning of the period.”
He proposes a surge in local enforcement to break the criminal mindset and freeing up resources to do it again elsewhere. This goes back to the old theory that if we only had enough cops, there would be no criminals. I have several issues with this.
Our laws are essentially made by politicians. If you look at the creation of legislation, it often seems to revolve less around seeking efficient solutions than trying to appear to have taken strong action. The politician who raises rehabilitation rates by 12% is always going to lose to the one who took another 300 ‘criminals off our streets’ and put them ‘safely behind bars’.
On the enforcement side of things, the police can only enforce the laws they are given, which are usually both too broad in their scope (imprisoning productive members of society who have some bad habits) and very limiting (police can’t simply do door to door searches in each town they hit). I expect what we would see with his proposal is large enforcement squads being shipped out of their home town to raid problem areas. Criminals would simply lay low, knowing they can wait it out. The policing forces would know they are expected to show some arrests, which leads to all sorts of problems, from false or trumped up charges to constitutional violations.
I don’t dispute the theory that strong enforcement can break the criminal mindset, we’ve seen that happen with traffic cameras. People knowing that the machine never sleeps makes them less likely to break traffic laws. We have also seen the results: districts cutting yellow lights short, shutting off the enforcement periodically to try and get people back into a gambling mode and breaking laws in order to increase ticket revenue, additional laws invented in order to create new sources of revenue, etc. Increasing enforcement won’t help until we make crime less profitable for legislators and law enforcement. These are people who know they will be out of a job if there is less crime.
“Much crime-avoidance behavior is wasteful from a social perspective, but not from an individual perspective. If my putting a burglar-alarm sticker on my front door simply leads a burglar to break into my neighbor’s home instead, the victimization loss is shifted rather than avoided, and in effect I incur a real resource cost to make sure that someone else suffered the cost of being burglarized. But that fact makes putting up the sticker no less rational for me as an individual.”
This brings up a point about the scope of our legislation. The above example works on a city or state scale as well. Very localized legislation may only serve to chase problems to the proverbial neighbor. This is one reason why banishment is no longer a common practice. On the other hand, one of the greatest aspects of These United States is the way the autonomy of the states can serve as testing grounds for new ideas, a market for them to succeed or fail and thus serve as an example. and a way of allowing like minded communities to enact legislations that suit their nature.
An interesting side note on vengeance as a motive for justice, I just noticed the following quote in a file from the department of justice:
“State prisoners had a 19% lower death rate than the adult U.S. resident population; among blacks, the mortality rate was 57% lower among prisoners.”
I guess universal health care does work (universal for them anyway). Back to Kleiman:
“The current total budget for law enforcement and criminal justice, adding together all levels of government, comes to about $200 billion a year. If a 1% reduction in crime is worth $15 billion, even modestly successful crime-control efforts can easily justify their budgets.”
By this reasoning, the best way of both increasing relative enforcement and decreasing costs would be to pick our battles and reduce our total legislation. Around a quarter of US inmates are in there for drug offenses. By the above statistics, halting the war on drugs would save us something on the order of half a trillion dollars every year, and that’s not counting the positive effect on GDP of having them back in the work force. The key here is figuring out how much it costs society to put someone away as compared to letting them go or to finding them a new opportunity. People who see themselves as having opportunities and who see their path to a good future don’t want to screw it up. A large portion of crime is committed out of desperation.
One of the things I love about Kleiman’s writing on the subject is that he sees crime as something that people commit against others, that crime is something suffered, and arrests are a cost. This brings home the need to reduce both the crime and the need for justice, and also brings up some interesting points about race and class.
“even adjusting for overall lower incomes, African-Americans suffer much more crime than do members of other ethnic categories. Homicide provides the most dramatic example; representing less than 15% of the population, blacks suffer more than 50% of the murders.”
Both the poor and racial minorities tend to be segregated into areas that, due to the lesser opportunities have a much higher crime rate. Even their crimes are segregated (white collar and blue collar). Blue collar crimes tend to be punished more harshly, but who is more morally bankrupt, the criminal who burgles homes in order maintain their basic needs, or the banker who embezzles millions in order to maintain a lavish lifestyle? If the burglar were to be given a good paying job with a future, do you think they would still burgle? Some might, but again I think this may owe more to their upbringing surrounded by crime.
A few excerpts from Kleiman’s crime reduction checklist:
“Identify and target high-rate serious offenders, with the goal of incapacitating them by incarceration. Don’t neglect domestic violence in this analysis.”
I admit that the whole concept of incarceration is beyond me. I don’t like vengeance as a motive for justice either. What is the purpose of incarceration?
As a punishment, it is a failure because it merely gives the incarcerated a concentrated group of criminals as peers and role models. When you let them out they are worse than before you put them in, not only because of the above, but also because they likely now have no home, no non-criminal friends outside, fewer family ties and job prospects, etc.
If we aren’t seeking vengeance, and prison isn’t a good form of rehabilitation, then why do we have prisons? The only thing that I can think of is just trying to keep people out of society. I say if they have a strong potential for rehabilitation, then focus on it in a way that works. If they have little hope of ever being decent members of society, then why let them out, or keep them alive at all? Severe mental illness is often behind crime, and falls under the same test as far as I’m concerned.
I think we should offer sterilization as an option for the reducing of sentence. It’s the oldest and most tested technique our species has for ensuring that the next generation doesn’t share our failures. Any genetic traits that would lead to criminal activity would be reduced, and we wouldn’t be subjected to the results of their poor parenting skills.
“Move toward “community prosecution” programs where policies are allowed to vary by neighborhood and are made after active consultation with both police and community leaders.”
I’d be very interested to see this tried. There is plenty of potential for problems, but there is also a lot we could learn. The problems are temporary, the knowledge is forever.
“Offer every prisoner a tightly-disciplined therapeutic community as an alternative to a conventional cellblock.”
Another idea with potential.
Since skills such as literacy are portable across the boundary between prison and the community, stress skill acquisition rather than attempts at behavior change such as drug treatment. Put a computer in each cell.
I like this one a lot. Internet access should be limited of course, but skill acquisition might just be the top choice for fixing crime related to class.
Make recidivism a key performance measure for prison managers.
This one is also great, and if it could be extended to police and politicians, we might have a real solution to the systemic problems.
Abolish the minimum drinking age.
I was a little surprised to see this one. I agree. It isn’t helping create responsible drinkers and is increasing the cost of enforcement. I definitely think the drinking age should be lower than the driving age. Let them get it out of their system before they get keys.
“Allow concealed carry by anyone who passes a gun-safety course, and require every state to recognize concealed-carry permits from other states.”
I like this. I don’t remember anything in the constitution about concealed weapons. I do remember the part about “shall not be infringed”.
From his final post:
“If people who call themselves fiscal conservatives understood that a sentence of life without parole imposed on an 18-year-old represented a present-value expenditure of $1 million, the enthusiasm for “throwing away the key” might be diminished.”
Too many of the things we do in the name of safety are really the government infringing on the rights of the innocent on the theory that they may become guilty.
If you would like to hear more from Mark Kleiman, check out his book:
April 5, 2008
According to the New York Post a Judge has ruled (case is irrelevant) that a jury should be informed of mandatory sentencing.
What is the core purpose of a jury? The concept of a jury seems to have begun in an attempt to remove the appearance of conflict of interest between those in power and the people they preside over. Traditionally a jury is a group of people compelled to render a verdict as to the guilt or innocence of one of their peers. They are not generally allowed to interpret matters of law, since those are handled by the judge. If the judge decides that the jury is ruling contrary to clear evidence in the case, the judge can declare a mistrial and call a new jury. The judge also decides which information the jury will have access to. This has the potential to either preserve the impartiality of the jury or to skew the opinion, depending on what was withheld. The system seems to work, more or less, but it does bring to mind the saying that if voting could really change anything, it would be illegal.
If the job of the jury is simply to decide whether the defendant committed the crime or not, why would they need to know what sentence they could be condemning them to? I see three reasons this should be allowed. For one, if the true purpose of the jury is to see to it that those in power treat their peers fairly, sentencing seems quite relevant. Secondly, if a member of the jury is already familiar with the law, they would already know the answer, so why withhold it from the others? And finally, sentencing is not evidence directly relating to the case, so I see no reason to justify withholding it.