Later On

A blog written for those whose interests more or less match mine.

Public choice theory is crucial to understanding the criminal justice system

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In the Washington Post Radley Balko has an interesting column (as usual):

Nancy MacLean’s new book, “Democracy in Chains,” is causing a lot of controversy. In the book, MacLean, a well-regarded and award-winning historian at Duke University, takes on the late libertarian economist and Nobel laureate James Buchanan, one of the originators of public choice theory. The book has been enthusiastically praised by outlets such as NPRNew RepublicSlate and the Atlantic.

It has also been roundly criticized by libertarians (though not just libertarians) for a number of reasons, including MacLean’s misleading(often deceptive) use of quotations, her conspiratorial tone and tendency to draw links that don’t exist, her fundamental misunderstanding of her subject matter, her sourcing that at times directly contradicts her assertions, and her tendency to assign sinister motivations to her source material.

I’ll leave the in-depth criticism of the book itself to others. Instead, I want to delve into public choice theory itself, explain the influence it has had on my own work and explain why it’s so important to the issues we cover here at The Watch. Before I do, I’ll go ahead and note that I identify as a libertarian. I’ll also disclose that prior to my work here at The Washington Post and previously at the Huffington Post, I worked for Reason magazine and the Cato Institute, two organizations commonly affiliated with the Koch family, one of the targets of MacLean’s book. I also know and have worked with some of the people MacLean targets in her book.

It was during my time at Cato that I was first exposed to the public choice work of Buchanan and Gordon Tullock. Generally speaking, public choice theory is the use of economic tools to analyze political behavior. One of the most important findings from the field is that when people work for the government, they don’t always act in the public interest. In fact, they are more likely to act in their own interest.

This is a pretty intuitive observation. And yet somehow it remains controversial. Government employees are human beings, after all. We have no problem believing that people in the private sector tend to act in their own interests. Public choice merely posits that people don’t shed that tendency when they get a government paycheck. It doesn’t suggest that government employees are evil or lazy or inherently corrupt. It’s more that there’s nothing transformative about working for the government that makes someone more or less selfless than someone in the private sector. On some level, this clashes with the high regard we attach to public service. But it doesn’t need to. We can still admire, say, someone who gives up a large salary in the private sector to take a job in public service, while recognizing that not every decision that person makes thereafter will always be in the best interests of the public. It doesn’t need to be a nefarious thing. It may take the form of cognitive bias instead of some conscious decision. If you think your public service job is critical, for example, you might read data in a way that a way that emphasizes the importance of what you’re doing. Or you might be tempted to exaggerate the social problem your agency exists to fight if doing so means not having to lay someone off or take a cut in pay.

The substantive lesson from all of this is that we should design government institutions and align incentives for public official and government employees in ways that acknowledge and compensate for how people actually are (sometimes self-interested) instead of how we wish them to be (always selfless and public-minded).

In the area of criminal justice and civil liberties, the ramifications of this are pretty profound. For example, in a number of areas of constitutional law, the Supreme Court has fashioned a “good faith” exception when police or prosecutors violate someone’s constitutional rights. Under certain conditions, a good faith exemption can excuse an otherwise illegal search. When police or prosecutors lose evidence in a criminal case that may have been exculpatory, the Supreme Court has ruled that defendants are out of luck unless they can show that law enforcement officials acted in bad faith — which in most cases is next to impossible. In other words, the courts assume the cops or prosecutors were acting in good faith unless proven otherwise.

These decisions then essentially become road maps for unscrupulous police or prosecutors. Body cameras are a good example. Because the courts have generally assumed good faith when body-camera footage goes missing, or when cameras themselves malfunction, we’ve seen an small epidemic of lost footage, accidentally deleted footage and damaged cameras.

One of my favorite examples came in a drug dog case the Supreme Court considered a few years ago. Drug dogs have notoriously high rates of false alerts. The fear is that many of these dogs are not alerting when they detect the presence of drugs, but that they’re picking up on their handlers’ body language and alerting when the handler suspects someone may be hiding drugs. There’s good evidence for this. There’s also at least anecdotal evidence that some handlers can prod a dog to alert on command. Because a drug dog alert is probable cause for a search, under either scenario, these dogs can provide legal justification for a search based on little more than a police officer’s hunch. That’s exactly the sort of thing the Fourth Amendment is supposed to protect against. During oral arguments in the case, Justice Antonin Scalia seemed perplexed as to why a police officer could possibly want a drug dog that would falsely alert. He speculated that a dog that frequently alerted falsely would be a waste of time and resources. But of course there are lots of reasons why a police officer would want such a dog. By the time a K-9 unit is inspecting a car, the police already strongly suspect illegal activity. The drug dog is a shortcut to a search — a search that might find drugs but also weapons or evidence of some other crime. Between arrest and seizure quotas (which, if not explicit, are often implied) and asset forfeiture, there are plenty of incentives for a cop to want a tool that gives them carte blanche to search anyone they find suspicious. And a properly trained (or improperly trained, depending on your point of view) drug dog does exactly that.

You can see public choice theory in action all over the criminal justice system. It’s helpful for understanding why police unions don’t always represent the best interests of police, much less the interests of the community. It explains why it’s advantageous for police officials toexaggerate the threat of crime in some circumstances and underreport it in others. It explains why a policy such as civil asset forfeiture provides an incentive for police to wait until drugs are already on the streets to make busts, instead of busting drug dealers while they’re holding a large supply. (A car or stash house full of drugs provides no financial reward for the investigating police agency. A car or stash house full of cash is a potential windfall.) It explains how federal grants can incentivize police departments to expend resources rounding up hundreds of low-level drug offenders instead investigating crimes such as murder or robbery or rape, which typically don’t come with a federal bounty.

As you might imagine, Buchanan’s ideas have traditionally received a warm reception on the political right. Except when it comes to criminal justice. Oddly, the same Republican politicians who tout the trappings of public choice when railing against the Environmental Protection Agency or the Securities and Exchange Commission demand deference to law enforcement officials, even though they’re subject to the same analysis. They can’t see how a police officer or prosecutor might be tempted to bend the rules, take shortcuts or take actions that serve their own interests rather than the public’s. Perversely, this is the one area of public policy where Buchanan’s ideas are most important, because the stakes are so high.

Public choice also explains a lot of the odd choices of public interest groups outside of government. . .

Continue reading.

Later (and there’s quite a bit more):

. . . Look at the elections of judges. Electing judges is obviously a more democratic policy than appointing them. But it’s far from clear that judicial elections make the courts fairer or more just. In fact, the evidence suggests otherwise. A 2015 study by the Brennan Center for Justice found that judges facing reelection or retention hand out harsher sentences as Election Day approaches. Similar studies in Washington and Pennsylvania have found similar results. The studies further found that judges who were retiring — i.e. no longer influenced by the democratic process — were less likely to impose punishment harsher than the sentencing guidelines. The Brennan study also found that in states where judges are elected, the more supportive the public is of capital punishment, the more likely judges are to hand down death sentences when they’re up for reelection. A 2016 studyfound that sentences of black (but not white) defendants increased by 2.4 percentage points in the final six months of a prosecutor’s election cycle. A 2015 Reuters study found that appellate court judges who were elected rejected the appeals of death row prisoners at twice the rate of judges who are appointed. In Alabama, judges can impose the death sentence even if a jury recommends otherwise. And not surprisingly, judges are more likely to do so during election years.

If you value democracy above all else, you ought to be celebrating these findings. This is the democratic process doing exactly what it’s supposed to do: These elected officials are responding to the will of the people. But I’ll go out on a limb and assume that someone of Nancy MacLean’s politics would not celebrate these findings. And if I’m right, that’s because there are some principles that she values more than democracy — justice, fairness, mercy, equality before the law.

The United States leads the developed world in incarceration. We also have one of the world’s most politicized criminal justice systems. It seems unlikely that these two things are coincidental. We’re the only country in the world where prosecutors are elected, and we’re one of only a few where judges are. Incidentally, 95 percent of America’s prosecutors are white, and nearly 80 percent are white men. These are the people who disproportionately send black people to prison. This, too, is democracy in action.

A 2007 study of prosecutors in MacLean’s own state of North Carolina found that in election years, criminal defendants were significantly more likely to be convicted and less likely to have their charges dismissed. Interestingly, this effect was more pronounced for drug and property crime than for violent crime. Which means that in cases where prosecutors had room for discretion, they were more punitive in election years. Moreover, the effect was even more pronounced among district attorneys facing competition for reelection. In other words, more democracy meant more punitiveness. In fact, a 2012 study of district attorney campaigns found that when incumbent prosecutors do have election opponents, the campaign rhetoric is rarely about policy or priorities, and it tends instead to be more about personality, and aberrant, high-profile cases. . .

Written by LeisureGuy

21 July 2017 at 3:51 pm

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