The Cost of Criminalization

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:

When Brute Force Fails: How to Have Less Crime and Less Punishment

Don’t Ask, Don’t Tell

Obama seems to be testing out what I imagine will become another great speech soon. In today’s speech he set the stage for the destruction of the DADT policy, saying, “I’ve called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination“, and “I’m also urging Congress to pass the Domestic Partners Benefits and Obligations Act, which will guarantee the full range of benefits, including healthcare, to LGBT couples and their children.”, and finally, “I want to say a word about “don’t ask, don’t tell.” As I said before — I’ll say it again, I believe “don’t ask, don’t tell” doesn’t contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens our national security. Now, my administration is already working with the Pentagon and members of the House and the Senate on how we’ll go about ending this policy, which will require an act of Congress.“

I think of DADT as good manners, but lousy policy. One’s sexual orientation is not relevant to the job at hand; it’s a distraction. Making an issue of it while on duty should be punishable by reprimand rather than discharge. I feel the same way about religion.

On a separate note, women will never have equal rights in this country until they have equal responsibilities. This includes registering for the draft. The government either needs to do away with it or apply it without discrimination.

Reverse Discrimination

Opponents of reverse discrimination won a rare victory today (Ricci v. DeStefano).

This has been the poster case for reverse discrimination for quite a while now, with two thirds of respondents in a recent CNN poll saying they thought the previous ruling was unfair. Among the Affirmative Action crowd, reverse discrimination is still considered ok. I think they are misguided. When your house is burning down, who do you want to show up, the most racially balanced team, or the guys who passed the fire fighting test? This goes for any other job as well. As far as the justifications for reverse discrimination, there are a whole lot of disadvantaged white people in this country too. There is no such thing as being too white to be poor. If you are going to have a socialist philosophy, don’t help blacks because they tend to be poor, help the poor because they’re always poor. If you are going to help the poor, do it by giving them the opportunity to compete rather than just giving them all a medal.

This is an especially timely case because Sonia Sotomayor had sided with the city when she head the case. Now that The Supreme Court has shot it down 5-4, not only does it make her look bad and hurt her chances for nomination, especially after her questionable attitude on discrimination, it also highlights the importance of her nomination, as she could have swung the vote the their way had she been on the court. It was also an important case in our over-litigious business atmosphere today. Those businesses who have been hiring minorities out of fear of litigation now see that they can be sued going either direction. While this may increase total litigation, it will also get people back to hiring by merit rather than fear.

Religious Discrimination Lawsuits

Encyclopedias define religious discrimination as ‘valuing or treating a person or group differently because of what they do or do not believe.‘ That seems like a pretty fair and broad definition, but I think there is a great deal of misunderstanding out there as to what this means.

Most claims of religious discrimination are claims of violation of the first amendment statement that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. I think the first thing that is important to understand here is that the government doesn’t give us our rights, it just hasn’t managed to take all of them away yet. The Constitution isn’t a document granting us rights, it’s a document restricting the actions of government. The thing to note here is that it isn’t the job of Congress to prevent discrimination, but rather to not cause it.

Claims of religious discrimination range from legitimate to ridiculous, and resolving them is difficult in the sense that the ones seemingly being wronged are often the ones asking for the discrimination. Some examples that are already happening:

An Orthodox Jewish couple in Bournemouth have issued a county court writ claiming religious discrimination. Why? This couple contends that they are being held hostage on Shabbat because walking out their door triggers their neighbor’s motion light, and thus their prohibition of ‘making fire’, one of many things they aren’t allowed to do on the Sabbath. Lets say Jehovah’s Witnesses were afraid of motion lights too. Would putting outdoor motion lighting on your front door be a hate crime? This  highlights the problem of the government getting involved in private affairs. What happens when one religion requires motion lights on their door while another forbids it? There is no way to please everyone.

What I find disturbing about this kind of case is that looking at the above definition for religious discrimination, it is the couple who is doing the discriminating by demanding special treatment because of their beliefs. No one else can sue their neighbors for having motion lighting unless they also subscribe to this belief.

Another example is that of the burkha. A girl in Florida tried to get her drivers license photo taken with her burkha on. Obviously the state shot this down. The same goes for being identified before boarding airplanes. It is an interesting dilemma because, while it is the burkha wearers who want the special treatment, denying it is essentially preventing Islamic women from travelling. I would also note that if you are an identical twin, they don’t force you to come up with additional identification to prove you aren’t your sibling. An airline could hire a woman to take the burkha wearers into a private room for identification, but if the airline were small enough to only have one ID checker, then they would be forced to be discriminatory in their hiring practices by only hiring a woman. It is the FAA that requires such checks, so it is a government matter, just as it would be if they were carded at a liquor store. The ACLU thinks it is disallowed because of religious discrimination caused by 9-11, rather than the obvious security reasons of identifying passengers. I’d challenge them to try to go buy some liquor one night wearing a ski mask and see how far they get.

The intent of the constitution as it relates to religious discrimination should be interpreted as a sort of ‘don’t ask, don’t tell’ policy. Those in government should not commit religious acts while on the job, or add them or their terminology into policy, and the government shouldn’t take religion into account when making decisions. Where the lines of discrimination law should be drawn for businesses and individuals, I admit I don’t know. Anyone have any opinions?

Sonia Sotomayor

A few weeks back when Obama had yet to publicly pick a nominee for the Supreme court, CNN put up a picture on their front page of a large grid of faces, each a likely choice for the nomination. In a fraction of a second, before I even recognized any of their identities, I picked Sotomayor as the obvious political choice.  I find this troubling. It’s true that she could be the best of the bunch, but I think that is improbable for reasons I’ll go into below.

Pat Buchanan has repeatedly referred to her as an affirmative action pick. While I can see how he would think that, I think it is more complicated than that. Obama got two thirds of the Hispanic vote, and 56% of women. He might be trying to directly appeal to his base. As much as it may have been one of his greatest obstacles at many points on the path, I’m of the belief that Obama’s ethnicity was a positive for him in the final presidential vote. He could arguably claim that he has a mandate to shake up the old white guy club that is Washington D.C.

Obama has both the Constitutional background and the advisers to tell him the history and expectations connected with a Supreme Court nomination. There has been something of a tradition of ‘reserved seats’ on the courts for various groups, such as Catholics (Catholics now make up two thirds of the court). I don’t like such traditions. I think the appointment should go to the most qualified individual, based on impartiality, and an understanding of the Constitution and our legal system. I don’t think we should legislate this, but I do think a strong legal background is a plus. I think as much as possible, the government should be blind to race, gender, and religion.

“I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”

The above quote doesn’t come from anyone I’d confirm for for such a position. I’ve yet to hear anyone say that they think a white guy making the inverse statement would have any chance of confirmation.

I’ve heard the Obama administration’s statement that if she were to make the statement again she would have used different wording. This wasn’t some offhand comment she made after a few drinks. This was in a published speech for a law review, specifically Law Raza Law Review, a play on La Raza,  or ‘the race’, a term of Hispanic pride. She is a member of The National Council of La Raza, a group dedicated to the advancement of Hispanics. She has used the above quote in many speeches and many places over a nine year period.

I’ve heard it suggested that the quote was just taken out of context. After reading the context it was in, I found it to be even worse. I find the quote inexcusable, and I see three possibilities for explaining it:

1. It was poorly stated and not what she meant, in which case she is unqualified for a position in which all of her statements will be picked over for decades or centuries to come by lawyers and judges deciding people’s futures.
2. She said it because she was pandering to Law Raza, in which case she doesn’t have the ethics for the job.
3. She believes what she said, in which case she is guilty of ethnic discrimination, and doesn’t have the impartiality to be any kind of judge, much less on the Supreme Court.

The reason Barack gave for voting against Roberts was the he had the impression that Roberts most often ruled for the strong over the weak. This is a statement that brings me to the core of my beliefs about affirmative action. If Hispanics tend to be poor, should we give Hispanics some help? No. If you want to help the poor, help the poor, not the Hispanic. To do otherwise isn’t fair to the poor who aren’t singled out by their ethnicity, or to those Hispanics who are already successful, and it breeds resentment and the impression that people gained their positions through something other than their own merit. If Sotomayor is confirmed without addressing that quote, all of her decisions on discrimination cases will come with an asterisk.

As for her past work, she has twice ruled on Second Amendment cases as if it did not exist.

I’ll be interested to hear what she has to say for herself in the confirmation hearings. The Democrats have control and it is expected she will be confirmed. The Republicans don’t have the cojones to vote against a swing demographic, but who knows, it could yet get ugly enough to be contested.

Update: Pat Buchanan has an interesting post up referencing Sonia Sotomayor’s statements on affirmative action and how it affected her carreer.

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