Injustice for All

How Financial Incentives Corrupted and Can Fix the US Criminal Justice System

Chris Surprenant, Jason Brennan

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781138338807
• eBook ISBN:
  9781000750522
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

American criminal justice is a dysfunctional mess. Cops are too violent, the punishments are too punitive, and the so-called Land of the Free imprisons more people than any other country in the world. Understanding why means focusing on color—not only on black or white (which already has been studied extensively), but also on green.

The problem is that nearly everyone involved in criminal justice—including district attorneys, elected judges, the police, voters, and politicians—faces bad incentives. Local towns often would rather send people to prison on someone else's dime than pay for more effective policing themselves. Local police forces can enrich themselves by turning into warrior cops who steal from innocent civilians. Voters have very little incentive to understand the basic facts about crime or how to fix it—and vote accordingly. And politicians have every incentive to cater to voters' worst biases.

Injustice for All systematically diagnoses why and where American criminal justice goes wrong, and offers functional proposals for reform. By changing who pays for what, how people are appointed, how people are punished, and which things are criminalized, we can make the US a country which guarantees justice for all.

Key Features:

• Shows how bad incentives, not "bad apples," cause the dysfunction in American criminal justice
• Focuses not only on overincarceration, but on overcriminalization and other failures of the criminal justice system
• Provides a philosophical and practical defense of reducing the scope of what's considered criminal activity
• Crosses ideological lines, highlighting both the weaknesses and strengths of liberal, conservative, and libertarian agendas
• Fully integrates tools from philosophy and social science, making this stand out from the many philosophy books on punishment, on the one hand, and the solely empirical studies from sociology and criminal science, on the other
• Avoids disciplinary jargon, broadening the book's suitability for students and researchers in many different fields and for an interested general readership
• Offers plausible reforms that realign specific incentives with the public good.

1

IT’S WORSE THAN YOU THINK

If you’re reading this book, then it’s likely you already believe that the US criminal justice system is broken. You may also believe that there are two justice systems—one for the haves and one for the have-nots—and that an individual’s ability to receive justice, either when accusing someone of bad behavior or when being accused, depends more on the characteristics of the individuals involved rather than the merits of the case.

Maybe you don’t believe these things, but you can see why people might. Hardly a day goes by without hearing a story of a police officer shooting an unarmed citizen, a judge or prosecutor imposing an unreasonable punishment, a small town raising money by aggressively policing moving violations, or county sheriffs seizing cash and goods from people doing nothing more than driving on the interstate. Police are too aggressive, too violent, and can violate our rights with virtual impunity. On YouTube you can watch cops play high-stakes games of Simon Says with civilians, and then watch those cops murder or tase the civilians when they can’t follow contradictory directions. Police are rarely punished for excessive force, even when they murder civilians. After incarcerated people serve their time, they return to society as second-class citizens who often cannot vote and have no hope of securing good long-term employment.

The vast majority of the people negatively affected by these policies are poor and black. High profile books such as Michelle Alexander’s The New Jim Crow demonstrate the racial disparities in our justice system: Black Americans are disproportionately and excessively fined by police¹ and are arrested at disproportionately higher rates for non-violent offenses like marijuana possession.² Black men receive longer sentences than white men for the same crimes.³ Perhaps most disturbing, while one in nine American men will spend part of their life in prison, when sorted by race that number changes to one in three black men as compared to one in 17 white.⁴ These numbers suggest that the answer to our criminal justice woes may lie in underlying issues of race and racism: Racist laws, put in place by racist politicians, policed by racist cops, and enforced by racist judges.

But the story is not as simple as it seems. Legal scholars John Pfaff ⁵ and James Forman, Jr.⁶ have questioned this straightforward and intuitively persuasive story about race and racism. Pfaff argues that dramatic changes in prosecutors’ behavior during the early and mid-1990s is more responsible for mass incarceration than the War on Drugs or draconian sentencing laws that disproportionately target black Americans. Forman goes further. He argues that it was many black mayors, judges, police chiefs, and community leaders—not just their white counterparts—who embraced tough-on-crime principles as a response to surging violence and drug abuse in black communities. This approach by black leaders to addressing problems within their own communities led to many of the racial disparities we see in the criminal justice system today.

We believe the fundamental story is different from what Alexander, Pfaff, Forman, and others describe. When it comes to the color of justice in America, follow the money. What matters even more than black and white is green.

Financial incentives, and people responding rationally to those incentives, are responsible for most, if not all, of the dramatic changes we observed in US criminal justice over the last 50 years.

The incarceration statistics are the most dramatic. The so-called Land of the Free is also the Land of the Imprisoned. At the beginning of 2018, approximately 2.3 million people were incarcerated in the US. That’s about one in 100 citizens. The US has 5% of the world’s population but 25% of the world’s prison population.

In the US, 27% of all people incarcerated, including 60% of all females incarcerated, have not been convicted of a crime. They’re sitting in local jails awaiting their day in court, either too poor to come up with bail or denied bail, often because of technical parole violations. The US incarcerates women—who commit most crimes far less often than men—at a higher rate than most other rich, democratic countries incarcerate men. As a result, about 1.5 million children have at least one parent behind bars.⁷

The problem isn’t just that we throw too many people in jail for too long. While nearly 1% of the population is locked up in cages, an additional 4.6 million people, or an additional 2% of the population, are currently under state control through probation or parole. In total, over 7 million people, or nearly 2.5% of the population of the United States, are under some form of “carceral supervision”—that is, incarcerated, on parole, or on probation.⁸

So much for the “Land of the Free”. That label was false in 1814, when about 13% of the country was enslaved, and it remains false today thanks to our overly punitive and harsh criminal justice system.

Let’s be clear: The US is not normal. No other country on earth—even communist states or dictatorships—throws so many of its citizens in jail so readily and for so long.⁹ Only 11 US states incarcerate citizens at a lower rate than the Russian Federation,¹⁰ and 35 US states, including overwhelmingly white states like Wyoming and Montana, put people in prison at a higher rate than repressive, authoritarian Cuba.¹¹ The US is a modern, rich, liberal, republican democracy, just like Canada, Switzerland, Germany, Norway, the United Kingdom, France, or Australia. But our criminal justice system looks little like theirs.

It wasn’t always like this. In the 1950s, the US criminal justice system looked more or less like Canada’s or the other liberal democracies in Western Europe. We had slightly higher crime and a slightly harsher and more punitive system, but we were not unusual. Even as late as 1971, Finland, Belgium, France, Germany, and the United Kingdom had an incarceration rate of about 100 prisoners for every 100,000 people, while the United States was about 150 for every 100,000. We were at the high end of the cluster, but we were in the cluster. Fast forward to today, and the incarceration rate in those other countries hasn’t changed much—they’re all still at about 100 prisoners for every 100,000 people. (The UK has jumped up to 150/100,000, making it as punitive as 1950s America.) But the US incarceration rate has skyrocketed to about 700 prisoners for every 100,000 people.¹²

And who profits from mass incarceration? Nearly everyone involved, except the prisoners themselves. The so-called prison industrial complex in the United States is a $182 billion (yes, billion) industry.¹³ While many people who want to express their outrage seem to focus on private prisons, private prisons represent only a small fraction of the money flowing in—$4.3 billion, less than 2%. Public corrections agencies (prisons, jails, parole, and probation), courts and other legal costs, policing, and public administrative employees consume the bulk of this funding. All of these people have a personal stake in preventing the types of reform that would make their jobs go away. Beyond the people involved in the justice system directly, service providers also have the most to lose. Companies that provide health care, food, utilities, and other services (e.g., bail bondsmen) all have their livelihoods to lose if reform efforts lead to a smaller criminal justice footprint.

Politicians benefit from mass incarceration as well. While we may not be surprised to learn that politicians in some states benefit from being seen as tough on crime or because they have brought financial gains to their constituents by housing prisoners in their district, they also benefit in unexpected and surprising ways. For example, the US Census counts incarcerated persons as residents of the jail or prison, not the town they lived in before being incarcerated. In Connecticut, this so-called prison gerrymandering is responsible for creating nine state representative districts that would not meet federal minimum population requirements if not for counting their prison populations. Even worse, seven of these districts are majority-white and exist because of the majority-black prison population, a population who cannot vote and are otherwise not represented.¹⁴

And our problems with mass incarceration aren’t even the half of it. As you’ll soon see, the entire US legal system is broken at the local, state, and federal levels. That it is broken is not a coincidence or accident, nor is it the result of a few nefarious actors. Fixing it requires us to understand why it’s broken and how financial incentives drive bad policy.

The Faces Behind the Numbers

There’s a famous quotation often attributed to Soviet leader Joseph Stalin: “The death of one man is a tragedy, while the death of millions are mere statistics.”¹⁵ While Stalin himself probably never said that, whoever did knew something deep about human nature. Our brains are designed to understand stories, not numbers. We empathize easily with one person; our eyes gloss over when we hear about millions. But one problem affecting criminal justice in the United States is that horrible stories about injustices and lives being unnecessary destroyed emerge nearly every single day. Open a calendar, close your eyes, pick a week, and you can look through local newspapers to find a handful of stories demonstrating the injustice of our justice system.

To prove this point: We’ve written the first draft of this section during the week of August 12, 2018. What sorts of injustices came to light during this same week last month, July 9–13, 2018? As it turns out, quite a few. That such stories are occurring with such frequency and across the country should convince us that something has gone terribly, terribly wrong. Below are some of the most egregious, one from each day of that week.

July 9, 2018—New Orleans, Louisiana

What would you do if you received a letter from your local district attorney ordering you to appear at a certain date and time to testify against someone who has been accused of committing a crime? What would you do if that letter was labeled “SUBPOENA” in big, bold, red letters at the top, and came with the threat of jail time if you didn’t comply? While it is not unusual for a district attorney to have judges issue subpoenas to witnesses, especially those who might be reluctant to testify, it is highly unusual—if not unprecedented—for a district attorney’s office to issue fake subpoenas, that is, subpoenas (or letters that look like subpoenas) that were never signed off on by a judge. While forging official documents would be bad enough, the Orleans Parish District Attorney went further and ordered the police to arrest citizens when they failed to comply with these fake subpoenas.

On July 9, 2018, The Lens reported that the district attorney’s office issued 249 fake subpoenas over a three-year period. For at least 50 of these cases, there were “court filings seeking to arrest crime victims and witnesses for allegedly failing to cooperate. Almost all of those were granted; 16 people were arrested.”¹⁶ But it wasn’t just the Orleans Parish District Attorney who was issuing fake subpoenas. District attorneys in neighboring Jefferson and St. Tammany Parishes also issued similar looking documents, with Jefferson Parish going so far as to issue one fake subpoena to an 11-year-old.¹⁷

July 10, 2018—El Paso, Texas

Almost daily in the US, there are multiple credible news stories of police officers or other government agents using, or thre...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• 1. It’s Worse than You Think
• 2. It’s All For-Profit
• 3. What Should Be a Crime? The Scope of Criminal Law and Government Power
• 4. Incarceration on Trial
• 5. Crime Doesn’t Pay, Unless You’re the State
• 6. Poverty, Risk, and Crime
• 7. Changing the Rules: Changing the Incentives
• Bibliography
• Index