Here’s lovely reporter, Shelley Brown’s write up, but the video segment doesn’t appear to be up.
John Lott is an empirical scholar of great talent. He does not allow moral theorizing to be bold without backup. Thus he is skeptical of Loury’s characterization of the American criminal justice system as racist because the hard facts seem to tell a different story.
The facts are these:
1. Blacks commit the majority of crimes against other blacks.
2. If we assume that too many people are in prisons, then the easiest way to lower that number is by cutting back the war on drugs.
3. Society imposes non-incarceration punishments on criminals in biased ways against whites.
4. Death penalties DO deter violent crime.
5. Modern police training is failing compared to the past.
One gets the impression that for Lott the evidence should be enough to inform and update the criminal justice system. But Loury’s perspective is a popular one not only among formal commentators and academics but also amongst significant portions of minority citizen groups. My remaining question for Lott (perhaps more of a concern), is how does one ensure the implementation of sound – empirically informed – criminal justice policy amidst current political structures? Does the current political system possess the incentives necessary to implement or preserve good criminal justice policies as Lott sees them?
My recommendation for Loury was to read more Hayek whereas Lott could perhaps benefit from reading more transition economics. Pete Boettke’s post on the stickiness of institutions related to culture comes to mind. If different cultural groups and settings hold different preferences for retribution, restitution, rehabilitation, vengeance, etc (as recent studies would suggest), then a one size fits all approach to criminal punishments may lead to political cycling or systematic bias.
Glenn Loury who has previously written biting commentaries of the American criminal justice system, is at it again on Cato Unbound. Needless to say I’m on the edge of my seat to see who and how this round of blog posts unfolds.
Loury is concerned about,
a preeminent moral challenge for our time — that imprisonment on a massive scale has become one of the central aspects of our nation’s social policy toward the poor, powerfully impairing the lives of some of the most marginal of our fellow citizens, especially the poorly educated black and Hispanic men who reside in large numbers in our great urban centers.
Loury’s perspective is a common one which has had much popularity amongst criminal justice scholars, penologists, sociologists and moral philosophers since the 1970s. Despite the obviousness of their concerns, and the popularity of their arguments they have had little success at swaying the unyielding trend of mass incarceration. In fact it was during their own popularity that imprisonment has exploded in size and unequal application. For example, Norval Morris’s The Future of Imprisonment, was heralded at its time of publication (1974) for its prediction that the practice of imprisonment would be all but eliminated in near decades. Yet it was on the cusp of this popular position that the prison explosion was ignited. Thus the intellectual challenge for such motivated commentators is more difficult today than it was a quarter century ago. Despite the obvious problem of the prison boom staring us in the face we have enjoyed a criminal bust.
A crude headcount of any incarceration facility in America (of which their are significantly more than any other country around the world today and throughout history) would quickly reveal that there are significantly more blacks and Hispanics behind bars given their relative populations in free society. There are three dominant interpretations to these facts: 1) Loury references the work of Loïc Wacquant whose perspective could be summarized as follows: subtle socially embedded racial hostilities create a population apathetic to such issues thus reinforcing their prevalence. The implied solution – a war on apathy. 2) Writers like Jeffrey Reiman, Tara Herivel and Paul Wright would argue that racism is not subtle at all but explicit. Officers, judges and legislators capture political power and wield unjust prejudice. The implied solution, greater checks and balances through the political process to guarantee equality. And 3) James Wilson and Heather MacDonald have taken the perspective that there is no such bias, and our current situation is optimal.
I’m not convinced by these perspectives. My perspective on the current state of criminal justice theory is straight forward – all three perspectives are in desperate need of the insights provided by F.A. Hayek. Loury is no exception. The crux of his argument is parallel to the first position listed above.
My skepticism of this position stems from two insights. First, regardless of whether the current magnitudes of unequal incarceration could be explained (in part or predominantly) by the existence of racial prejudice (subtle or explicit) it does seem possible that we could suffer similar results even were these prejudices to disappear. Thomas Schelling’s Micromotives and Macrobehavior exposes the darker side of spontaneous processes. Modest preferences for sameness can result in extremely segregated outcomes. Bruce Benson’s To Serve and Protect takes accurate account of increases in private investment for home security and private policing during the prison boom. If whites prefer or are willing to pay more for private police services and these private securities are efficiently superior to government services, then we would expect to see racially biased incarceration rates without a conspiratorial racist plot motivating them. Loury denies this possibility, “[i]t is not merely the accidental accretion of neutral state action, applied to a racially divergent social flux. It is an abhorrent expression of who we Americans are as a people, even now, at the dawn of the twenty-first century.”
Second Loury’s practical implications – we should sway the moral identity of Americans to take collective action against unequal incarceration – are not only uncertain as explained above but likely to be ineffective. As Robert Nozick points out in Anarchy, State and Utopia there is a hazard to interpreting the legitimacy of a process solely on the static vision of its outcomes, specifically that hazard tends to support ineffective static solutions to dynamic problems. As Hayek wrote in Law, Legislation and Liberty, Vol III “[I]n order to put into a more equal material position people who are inevitably very different in many of the conditions on which their worldly success depends it is necessary to treat them unequally…Yet to break the principle of equal treatment under the law even for charity’s sake inevitably opened the floodgates to arbitrariness (p.103).” And we have seen much of this in the long history of incarceration in society. Classicist, Danielle Allen in her extensive survey of Greek punishment The World of Prometheus, explained that unequal application of the law was recognized once governmental authority had monopolized the role of criminal punishments. Sentencing became less and less objectively tied to the facts of a crime, or the expressed preferences of the victim and more arbitrarily defined by state officials in terms of time-based prison sentences. What’s more is that much of this turn was instigated by interest groups invoking the apparent unequal outcome of debt-based incarcerations. David Rothman’s history of early American corrections, The Discovery of the Asylum tells a similar story. Chain gangs were so charged with racial stigma – argued to be essentially no different from slavery – that any rational case for framing punishments as labor contracts was tossed out as so many babies often are along with their proverbial bathwater.
Loury is right to point out that his proposal requires an explicitly contrived and cooperative collective action but fails to admit that such practical dilemmas are rarely overcome by moral theorizing if only because many individuals and groups who’s current course of action – in deviation to Loury’s ideal – are morally neutral or even acceptable. Loury is also right to point out the confused interpretation of personal responsibility popular in our current predicament. It is wrong headed to put blame on various criminals whose courses of action are little more than rational responses and optimizations within a contextual arrangement of institutional rules and rewards. But we must be consistent to also excuse the officers, judges, and legislatures who similarly operate according to their own self-interests.
The entire framework of understanding criminal behavior and the effectiveness of punishment suffers a Fatal Conceit similar to Hayek’s concern against socialism. When we insist that we can make society better through planning we often fall short of our goals, but perhaps this insight is incomplete without another – Bastiat’s What is Seen and What is Unseen. We often fail to recognize how short we have fallen. I specifically disagree with Loury when he says that the American middle class has reaped great benefit from the criminal justice system as it operates. This is a problem of counter-factuals. Instead I would argue that we have lost great amounst of value because of our current policies. First we do not get to engage n voluntary mutually beneficial exchange for producing and distributing services in the criminal justice industry. Second, we are deterred from similar gains of trade with the entire class of individuals currently deemed as criminals both inside and outside of jail. And perhaps most unrecognized we loose out from the entire network of underground society unnecessarily reserved to the black market for no other reason than that they service illegitimate clients. Sudhir Venkatesh has reported, even babysitters stay underground so long as they babysit children of drug dealers.
Economic historians David Levy and Sandra Peart, have an important message to share – eugenics, as it took hold in formal criminal justice systems was little more than central planning. It suffered from both knowledge and incentive problems. Our current outcomes of the criminal justice system force us to recognize that the inverse of the Levy Peart hypothesis likely holds as well. Central planning has eugenic effects. Thus central planning is of little use in resolving the problems it has created. We will not resolve the sufferings induced by the fatal conceit if our proposed sollutions suffer their own form of the fatal conceit.
Luckily much work is underway addressing these shortcomings of traditional criminal justice theory. The Cato Institute themselves has re-opened the basic debate of what purposes the criminal law should or should not serve with the publication of In the Name of Justice. Though it is disappointing that John Hasnas’s perspective to abandon the criminal v. civil legal distinction or David Boonin’s libertarian rejection of the punishment paradigm were not afforded space.
In the closing pages of Calculation and Coordination, Boettke includes the basic correlations between GDP and a variety of “real” -ly important social variables: sanitation, education, life expectancy, and infant mortality among others. The color coded economic freedom map, can easily be thought of as the “where would you like to live test?”
But check out these cool new visualizations. My favorites:
Especially when compared to GDP:
Who gets the most productive GDP bang for their consumption of energy and non-renewable resource buck? Which seems like a lower cost strategy: inhibiting high gdp : high energy consumer countries from marginally increasing both or helping low gdp : medium energy countries increase their gdps at current energy levels?
In 1950, it would have taken almost 8 months of full-time work at the average manufacturing wage to earn the $1,650 needed to purchase the 16 items above at the retail prices in 1950 (or 31.7 weeks, 158.4 days, or 1,267 hours). Today, it would take only 1.6 months of work at the average hourly wage today of $18.01 to earn the $4,580 necessary to purchase those same items at today’s retail prices (or 6.4 weeks, 31.8 days or 254.5 hours).
One reason that the new commanding heights are education, health care, and leisure is that durable goods have become so inexpensive to obtain.
I only have one concern. Notice the unequal distribution of value surplus. Consumers are paying approximately 5 times less in real terms and producers are getting back 3 times more in nominal terms. This is great, (for consumers)! We have to notice that the increases in quality for durable goods was instigated by a relatively small profit motive. While real and long term growth figures like these are frequently presented by economists to demonstrate – 1) things are getting better all the time, 2) the unrelenting momentum and robustness of free markets to promote growth, and 3) the consumer is the real winner – we should also recognize that these rewards stem from apparently small incentives. It is a small percentage of profit motive which instigated this technological progress. If we recognize that consumer spending has been fluffed up by easy credit and other bubble policies than how much of these gains are actually mal-investments?