Procrustean Rashomon

Sorry Jesse; they’ll keep getting away with it. Over and over.

Everybody likes a good procedural.   If the fundamental elements of the dramatic formula work their magic even once, then all the necessary ingredients are present, and it can work a hundred times more with the most trivial variations.

So, instead of Columbo, or Monk, or Perry Mason, why not pitch a new show in which every episode always begins with the shooting death of a large, unarmed black man in his late teens by a man of some other race.  The footage will be grainy and with rapid, frenetic shifts in the camera position so that it’s never quite clear to the audience what really happened.

The stories all take place in the town of Gini, Virginia, with the intro sequence showing a large sign displaying: “Welcome to Gini – Proud to be a Diverse and Vibrant Community.”

The mystery exists for the characters of the show as well, including the same collection of random members of the community, but that doesn’t stop them at all from losing their damned minds and immediately jumping to unjustified conclusions.  There’s always a team of four detective special agents tasked to investigate these, ‘sensitive matters’.

Three of them are old timers who hate each other’s guts and who go by the collective name, “three blind mice” which is an allusion to the metaphor about blind men describing an elephant.”

You’ve got Senior Agent Irving Trunks, with good connections in politics and a steamy relationship with his journalist gal pal.  Rumor has it that he’s on the take along with some of his powerful friends in high places.  That might be why he tends to leave certain critical bits of information out of his reports, and also why a certain scummy lawyer is always receiving early tip-offs and can get to key witnesses before anyone else knows they exist.

But somehow Trunks is Mr. Teflon – nothing sticks – and the accusations never seen to hurt his career.  Trunks is frequently having private, conspiratorial conversations about the case with the competent but very politically ambitious District Attorney who is always sensitive to public opinion and obsessing about winning the next election as a white guy in diverse, vibrant Gini.  He and Trunks seem to have a certain … understanding.

Next up is Agent Mohammad Tusk has two brothers in federal prison for mysterious reasons which are never made clear, and since he’s gotten the special treatment from the TSA one too many times he’s got a serious grudge against all symbols of authority.  He used to work as an inspector general in IA – internal affairs – and he’s seen every kind of bad a bad cop can be and earned no friends and a hell of a lot of enemies in the process.  So naturally he’s got a chip on his shoulder a mile long towards those idiot bastards on the beat.

And then there’s Agent Sean Patrick Ryan O’Tayle, a fourth generation cop who has lost three male relatives and members of the force – to include his own father – to fatal encounters with criminal scumbags.  His great-grandad was one of the last marshals in the Old West, and he’s a real ‘law and order’ kind of guy and a devout Catholic family man.  He’s kind of punchy, and a choke-hold-first, ask-questions-later kind of guy, but he’s got a sensitive side and his hidden secret is his deeply paranoid fear that he’ll follow his father into an early grave and leave his wife a widow to take care of their 7 kids.  That is, unless he’s always the quicker draw, like great-grand-pop was.

But there’s also, “The New Guy” – a transfer from the big city.  Turns out that New Guy – something they will continue to call him no matter how many season extensions get greenlighted – is a real glasshole.  He’s always wearing some big, fancy, high-tech monocle augmented-reality device that, he says, “Gives me access to all the information,” and, “Allows me to see every angle clearly and simultaneously.”

It’s also got a special feature – the “Bayesian Anticipated Baseline Engine” or “The Babe” which talks to New Guy in a computer-cold but somehow still sexy Scarlett Johansson voice.  The Babe uses open source social media, government data and statistics, and that great source of accurate undernews – amateur bloggers – to notice patterns and derive the best guess as to what really happened given the initially limited amount of information.

Like in Columbo, “The Babe’s” first guess at the answer is almost always right, it’s just a matter of collecting the evidence.  In the middle of the show, some new piece of information will seemingly prove The Babe to be completely wrong, and the Blind Mice will enjoy giving the New Guy a ruthless ribbing for it, but then, “The Twist!”, and that piece of information will turn out to be fraudulent and The Babe wins again.  Catchphrase, “Always play the odds, gentlemen.”

But let’s get back to the beginning of the show.  After the initial incident footage, we watch the detectives receive their mission brief at headquarters from The Chief.  “We don’t know all that much yet.  Got a 911 call late last night from a man who said he shot Tyrone Washington dead in what he claimed was a random act of violence gone wrong.  A few witnesses disagree.  We’ve got him in a holding cell right now, but there’s not much to go on.  Finish reading these preliminary reports, get your butts out there, and solve this case!”

Back at the desks, Agent Trunks takes only the most cursory glance skimming through the case file, senses an opportunity, gets that sinister gleam in his eye, and says, “Unarmed black male teenager gunned down?  Hell, ain’t it obvious?  Hate-crime homicide; open and shut.  What more do we need to know?  Now, if you don’t mind, I’ll be by the digital sender making calls to by girlfriend, a scummy lawyer, the District Attorney, and a buddy on capitol hill for … um … no particular reason.

Agent Tusk noticed the guy in the holding cell is a Federal Air Marshal who used his service handgun to shoot Tyrone.  “Says here he shot Washington with military-grade frangible RRLP rounds – reduced ricochet, limited penetration – the kind of thing they give to Spec Ops forces for close-quarters combat in urban terrain.  What the hell do you need that on a plane for, or while walking around in a vibrant neighborhood late at night?  Good grief, everyday is September 11th to these wackos.  Talk about overkill; are we becoming a fascist police state or something?  Just crazy.”

Agent O’Tayle is not having it.  He adjusts his taser holster slightly and says, “Oh, come on.  A man’s got a right to defend himself, and normal bullets would do more damage and pose more hazard to bystanders.  I did a tour in the Marines before joining the force, and I can tell you don’t know jack about military equipment.  Anyway, this guy’s a Marshal and that means he’s one of the good guys putting his life at risk protecting the rest of us, knows how to control himself and handle a weapon, and has probably got a spotless background.  I say we give him the benefit of the doubt here, especially given that nasty scar on his jawline.  Also, you know the kind of neighborhood Tyrone lives in, bullying thugs for life all over the place, muggings and fist-fights every night.  Says here Tyrone’s got a sealed and expunged juvie record, but we don’t have a copy of it.  What do you think was in there?  Parking tickets?  Overdue library books?  No way Mo.”

New Guy has The Babe hack into the files, check out the relevant facebook and twitter accounts, look up some crime statistics, and download all the surveillance videos with 24 hours and 10 miles of the incident scene.  The Babe, cool and calm as ever, says, “Analysis shows a 90% probability that Tyrone was in the wrong, but only a 10% probability that use of deadly force was necessary and disengagement and safe retreat was impossible.”

The three blind mice all scoff at this pronouncement in their own characteristic ways.

Gradually, over the course of the hour, the mystery will unravel piece by piece.  But not before the scummy lawyer, the journalist, the politician, and the District Attorney have incited the locals and stoked up a riot with their sensationalist and mendacious coverage of the incident.  The riot completely distracts the Three Blind Mice who proceed to debate the relative merits of the protestors and their behavior.

But the New Guy trudges on, doing the Yeoman’s work of actual investigation and collection of evidence, and eventually proves The Babe correct.  But only after it’s too late.  The DA got reelected by putting the Marshal on trial and ruining his life, the Journalist won a Pulitzer, the scummy lawyer gets priceless free publicity and makes a fortune in the settlement, and so forth.

When the New Guy announces his findings, the three blind mice try to walk back their most extreme incorrect assertions to avoid embarrassment, but mostly they just complain about The Babe’s invasion of privacy and unauthorized disclosures of confidential information, and then they shrug their shoulders and try to forget the whole, nasty business.

Until the next episode, where it all happens all over again!  And again, and again.  It’s tragic and kind of depressing sometimes, but always hugely entertaining.  Come on, you know you’d watch it.

What’s the name of the show?  What else?  ‘Bonfire!’ (Tom Wolfe, Executive Producer) with an image of a silhouette of the town of Gini in the midst of a raging conflagration as the logo.  It’s supposed to symbolize what happens to a community when the incitement machine gets busy spinning its narrative.



I can’t do any better than Steve Sailer has done in commenting on the facts and coverage of the Ferguson incident, so please donate to him.  (See 1, 2, 3, 4, 5 and pay special attention to his list of media narrative fiascos for new episode screenplays for Bonfire!)  It seems that these events are now a permanent part of our cultural landscape and there’s nothing anyone can do about it apparently.  There is too much to gain politically and in eyeball indoctrination time, and no one pays any price for making mistakes, or just lying and making things up.

But what I would like to comment on is the nature of how those conversation occur and how our discourse about these matters tends to proceed.  Which is with complete incoherence and more permanent irreconcilability than between Israel and Hamas.

Arnold Kling has his famous “Three Axis Model” of politics which he expressed at length in his short book, “The Three Languages of Politics” (buy it!)

The Three Axis Model says that our three major ideological factions tend to have obsessive-compulsive one-track minds, and process every political and governmental issue within that particular frame of analysis.  They are all wearing blinders and using both high and low-pass filters to block out any inconvenient truths and to try to force the real world to conform to some false mythology that allows them to press their agenda forward.

These frames are so incomparable that they are essentially orthogonal axes.  What is most salient for one faction is inconsequential for another.  People are literally “talking past one another.”

Another way to visualize it is that three separate trials are going on.  Each judge is examining the same underlying event but pursuing entirely different causes of action related to it.  Thus the questions of which facts are material and relevant to an essential element, and which lines of inquiry are productively probative of those facts, are entirely different.  One judge is conducting a murder trial, and another is trying to determine the disposition of the priceless antique murder weapon.  Most of the time, each judge is focused on their particular priority and neither judge probably cares very much about what is happening in the other case.  If they try to discuss their cases over lunch, they will bore the hell out of each other, because they just couldn’t care less about the other issues.

So, for any major media event of this kind, each faction – Progressives, Libertarians, and Conservatives – will first decide what agenda item is most important to them, then tend to take a very selective sample of the facts, stretch them to fit their preferred ideological version of reality with their own good goods and bad guys, and thus tell stories that differ greatly from each other and also with reality.  Procrustean Rashomon.

Because they care about different things, none of these ‘conversations’ can ever go anywhere but in endless pointless circles.  If there were direct contradictory claims and a shared standard of judgment (a ‘shared language’ or ‘axis’ to use Kling’s terms), then one could have a classic debate with the potential of resolution on the basis of logic and evidence.  But when the standards differ that kind of resolution is impossible.

Kling has written his own brief three-axis post about Ferguson, and in the show outline above, Trunks represents the Progressives who mostly care about social injustice and are obsessed with trying to tell a story of an America teeming with murderous white racist men.  Tusk or O’Tayle will try to point out to Trunks that it really doesn’t make sense to the oppression narrative that the ‘protest’ against ‘racist police’ would manifest itself in the mob-like destruction and looting of private storefronts which had nothing to do with the incident. To liberal Trunks, this is inherently excusable and completely besides the main point.

Tusk represents the Libertarians who despise state coercive power and authority so much and so generally they find it hard to think straight about the mere practical trappings of that authority when donned by the individual agents of that authority, and so they are going on and on about the visual impressions of observing police equipment and tactics about all of which they are really pretty ignorant.  They are also trying to complain about the same events as the Progressives – if on somewhat different grounds – and distinguish themselves from the Conservatives because they know the most important thing in life is to not be affiliated with them and thus targeted by the Progressive attack machine once that hornet nest gets stirred up.

And O’Tayle represents the Conservatives who mostly care about preserving law and order via deference to state authority, who don’t believe in the Progressive narrative about homicidal hate-criminals, and who probably isn’t very sympathetic to the plight of welfare-dependent underclass communities and the volatile thugs that tend to emerge from them.

The larger point is that all three blind mice have valid points to make if the others cared or would be willing to hear them, but they’re not. When O’Tayle tells Tusk that officer Darren Wilson was dressed in normal police clothes when the shooting occurred, Tusk says that’s not the point.  But everything everyone says in never ‘the point’ for everyone else.

So the formula is probably fixed for all time, they will go on and one talking past each other in exactly the same way, and Bonfire! will be extended for more seasons than General Hospital.

At least until we get some New Guys.

Or at least, until every non-black man in America gets the message that they cannot shoot an unarmed black man under any circumstances, no matter how justified, without completely ruining their own life and finding themselves at the center of the big top in a modern-day inquisitorial circus.

Not that this will stop the shootings, but that the market for unregistered drop-guns will probably explode and everyone who thinks they need to carry a weapon will start carrying two.  You know, one for each of ya.

And actually, to whatever limited extent they had to do so, they arguably already have gotten the message, which is why the prestige press can’t ever find a case that actually fits their narrative and why these events always turn into such media fiascoes over and over.


One final note about the nonsensical charges of ‘militarization’ of the police that mirror the work of Mainstream Libertarian Writer (Cato, Reason) Radley Balko and his two books, Overkill: The Rise of Paramilitary Police Raids in America, and, Rise of the Warrior Cop: The Militarization of America’s Police Forces.

Even Ross Douthat – one of my favorite writers – finds himself overwhelmed enough by his hollywood-primed intimidation by the Soldier-like appearance of contemporary police uniforms and military-origin of their equipment, that he links to a picture of ‘heavily-armored‘ police on PBS, amongst other things.  Yes, some civilian police have armored vehicles all over the world, and for good reason, but no, cops don’t drive main-gun ‘tanks’, Ross.

UPDATE: Oh God, Ross, there you go again.  Complete proving my point.  Grenade launchers? Tanks?  Really?  Come on.

When Ross repeats ‘Grenade Launcher’ (three times!) he means to evoke Rambo’s high explosives, but police are only ever equipped with tear-gas, and the safest way to distribute it a good distance into a riotous mob is by means of indirect fire for which you need a tube propulsion chamber, that is, unless Ross would prefer police to throw actual ‘grenades’ (ooh! that sounds scary too!) or aim them directly at peoples faces.  Your call, Ross.  Police have used riot control gas in less safe and effective ways for decades and no one calls it ‘militarized’.  A real military with real ‘tanks’ meaning to take out a massed formation would use this:

Ok, if the police start carrying those, I’d agree that it’s, “Time to take their toys away.”

Ross goes on:,

The only recent calm on Ferguson’s streets came after state cops started walking through the crowds in blue uniforms, behaving like police instead of storm troopers.

Heh, I beat him to the punch on the Stormtroopers, see below!  Predictable.  Oh, and those blue uniformed policemen were walking through a crowd of members of the Bloods criminal gang, of which Michael Brown was most likely a member.

Calm. Also, packing heat.

Well, despite the time-tested and always effective technique of neutralizing looters and vandals by walking down a street in the middle of the day, in front of a million cameras, and with the firearm with which the press is more comfortable, the calm was, alas, short-lived for reasons unknown.

“Peace and justice took a very different turn after dark,” Johnson said. “Molotov cocktails were thrown, there were shootings, looting, vandalism and other acts of violence that clearly appear not to have been spontaneous, but premeditated criminal acts.”

Police demilitarization success story

And the Chief did more than just walk around:

St Louis County Police confirm at least 200 of their officers are on scene and helping handle the situation. They confirm the Domino’s Pizza on West Florissant was set fire and burned. [The Domino’s Pizza in Ferguson are popular KKK hang-outs that totally had it coming, as everybody knows.] They also confirm multiple businesses vandalized and looted. Unbelievably, County Police told Fox 2 News that its officers were at the Ferguson Market earlier when looters showed up, but were ordered to “Stand down” by incident commanders at the scene and basically withdrew and allowed the looters to have their way with the store.

Um, who’s the ‘tomfool police’ now, Ross?

Douthat adds:

But there may be trade-offs here: In an era of atomization, distrust and economic stress, our punitive system may be a big part of what’s keeping crime rates as low as they are now, making criminal justice reform more complicated than a simple pro-liberty free lunch.

Now where have I heard that before?


To anyone who has never actually worn that clothing or equipment, or been around people who have, it looks scarier than a typical policeman’s garb with an ordinary protective vest despite carrying an incredibly deadly .45 but in a holster and magazines on a belt.

But that’s only because we’re used to seeing them that way, and not because it makes any actual difference.

I’m sure a visitor from the United Kingdom to the U.S. in 1946 would be taken aback when seeing a normal, armed post-war U.S. police officer, but that’s just status-quo bias, reacting to any deviation from the baseline to which one has calibrated their expectations.

To anyone that has ever worn this ‘scarier’ equipment, it looks like no big deal at all, just a different configuration that is a lot more practical, comfortable, and effective which is exactly the reason a Soldier dresses that way.  In fact, most Soldiers would want to carry a .45 for close-quarters combat like many cops do, but they have to settle for lower stopping power M-4/AR type carbines and 9mm handguns.

Cops are not Soldiers.  Because there is some overlap in the tools and techniques best suited to their work does not have any special meaning.  Cops cannot aim mortar tubes, throw high-explosive grenades, operate crew-served weapons, forward-observe to adjust indirect fire, call for close air support, operate tanks or artillery pieces, be prepared to operate in the presence of WMD contamination, or provide higher-echelon level logistics.

The problem is that, when you put the entire modern kit together, a cop looks enough like a Star Wars stormtrooper to a journalist that they can’t keep their heads screwed on right.  What they should do is consider the devices one by one and try to actually prove that it will make a positive difference by taking it away.

Let’s consider body armor for example.  What frankly amazes me is all the talk about ‘body armor’ being ‘militarization’ and having something, somehow to do with what happened to Mike Brown.  Check this out:


176,000 results?  It’s only been a few days!  When will it hit half a million?

But we’re just talking about protective vests.  Of course they look military because they all do the same things, are made out of the same stuff, and tend to look the same way.  The implication is that somehow life will be better if we just take these vests away or deny the police the ability to wear them.  Ok, now where do people explain the mechanism of how that works.  Zero out of 176,000, guaranteed.

Here’s a link to the terrifying Business Insider piece, which fails to make even one logical claim.  No one can be surprised by any silly thing Exum says anymore, but Szoldra should be ashamed for this:

“If there’s one thing I learned in Afghanistan, it’s this: You can’t win a person’s heart and mind when you are pointing a rifle at his or her chest.”

Yeah, I’m betting that when you were in Afghanistan, you also learned that when in those situations in which you might need to point a rifle at someone’s chest, it’s best to be dressed and equipped just like that.  And the problem is that it’s hard to know when you’re going to be in that situation, which he can learn from the latest Green-on-Greene incident.

Gee, I wonder how someone like Agent Trunks – operating on the Progressive axis of politics and describing a delusional alternative reality would try and explain that shooting to Tusk and O’Tayle?

But it’s still unclear whether the gunman had Taliban ties and whether he slipped through the military’s screening process, said Philip Mudd, a CNN counterterrorism analyst and former CIA official.

[Yeah, he also works for Soros-funded New America Foundation.  Just back from a trip to Cuba, Google’s Eric Schmidt is Chairman of the Board, and Obama pal Anne-Marie Slaughter is President and CEO.  Recent blog post – “Does America Need a Tahrir Square?”  Oh, that sounds like a great idea.  After all, it worked wonders for Egypt.  Find the right Ferguson formula one day and we just might get one!]

“I don’t think we should look and make judgments about the vetting process too quickly,” he said. “You would think on the surface that maybe he was recruited by the Taliban. That’s not necessarily the case.”

Witnessing the horrors of war sometimes inspires soldiers to turn against their onetime allies, he said.

“He might have seen something in the last months or years… and sometimes there is an emotional switch that turns on after their recruitment, after their vetting, that leads them to say, ‘I want to do something about this. I’m going to kill someone in the U.S. military,'” Mudd said.


I’m thinking they didn’t teach Mudd that insight of killer-profiling at the FBI Academy.

Looks like I can find all the Bonfire! script writers I want at CNN and NAF.  They’re pros at fiction there.


UPDATE (28-AUG-2014):  I would like to recommend that everyone read two things.  1. The high-quality dialogue between myself and Vladimir in the comments sections below, and 2. Richard Epstein’s “Lessons From Ferguson“, which is the most level-headed, reasonable, and accurate essay I’ve seen any Libertarian write about the matter.  Indeed, it is a kind of a <i>cri de coeur</i> of one of the most brilliant, prominent, and thoughtful Libertarian public intellectuals that the ‘new class’ has very much lost its way.

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Slate Star Codex Polite & Productive Pilot Project

Not a normal post, most of you can just ignore this:

Scott Alexander, over at SlateStarCodex, mentioned that there is a whole subreddit for polite, productive debates between feminists and men’s rights advocates.  Huh; who knew?  Upon investigation I found that the discourse there certainly exceeded my expectations for internet dialogue by such people on such a subject, which I admit was a pretty low bar.

Still, it tempered my cynicism slightly and put me in a whimsical mood, and I mused that it it would be great if such a thing were possible in our own little corners of the internet.

Well, Scott posted my suggestion at a part of his latest Open Thread, and several people (e.g. Oligopsony, eeuuah) seemed to express interest in the idea and also a willingness to abide by high standards of grace and decorum.  So, I have a strong spider sense that I’m making a mistake that will in all likelihood degenerate into ugly childishness, but the SSC-sphere is mostly full of mostly reasonable characters who care about polite norms of interactions, and I’m feeling reckless, so let’s take that chance.

This is not a post for that discussion.  This is a post where people who have an interest in participating in that discussions, and/or have suggestion on the best way for it to proceed and topics to cover, may leave comments to that effect.

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Suppressing Tories

By late 1775, if an American attempted to remain loyal to the King and Great Britain, what were the likely consequences?  Are you a modern version of a ‘Tory’ too?

From: Conceived in Liberty, Volume IV, Part II, Chapter 13.  Murray Rothbard, 1976; [Some additional emphasis in bold and separation into smaller paragraphs]:

… On the local level, the old committees of inspection, observation, and correspondence, which had enforced the Continental Association, naturally evolved into new city and rural committees to run the war, specifically to raise and operate the militia and especially to crush dissenting Tories.

The Americans had had no chance to hear present-day opinion that they were merely fighting a conservative and moderate revolution; hence they went at the Tories with a zeal that went beyond the bounds of libertarian principle. The concept of “enemy of American liberty” was quickly extended from violators of the continental boycott to anyone critical of the Revolution. Known and suspected Tories were hauled before the local committees, and as Professor Miller puts it, “If the committees failed to persuade, the mob took over. Thus was created a police system, secret, efficient, and all-powerful.”

Letters, especially to England, were seized at the post offices and carefully examined; spies eagerly took on the task of keeping watch on suspected Tories. And in contrast to enforcement of the Continental Association, committees did not try to confine punishment of Tories to voluntary boycott and ostracism; instead, fines, imprisonment, confiscation, and banishment came increasingly into play.

Persons were hauled before local committees for criticizing the Continental Congress, belittling the Massachusetts Army, criticizing Presbyterian prominence in the Revolution, and a host of other “errors of opinion.” The new extralegal Massachusetts General Court urged Harvard College to dismiss all faculty members having Tory views. Individual Tories were not only boycotted and forced to recant their heresies; stronger methods of punishment were adopted as soon as the rebel committees became the effective authorities in their areas. As early as May 1775, the Massachusetts Provincial Congress recommended to local selectmen and committees that they confiscate the arms of all unfriendly to the rebel cause and forbid anyone to leave the province without special permission of the local committee or the Congress.

The following month, the provincial congress directed the town committees and selectmen to confiscate and take charge of the property of all Tories who had fled behind the British lines at Boston or elsewhere. In New Hampshire, the provincial congress, as the supreme judicial body of the province, sentenced Tory Col. John Fenton to indefinite imprisonment as “an enemy to the liberties of America.” In September, the New York Provincial Congress created a hierarchy of penalties for Tories, including fines, disarming, prison, and banishment. And in November, the Rhode Island General Assembly passed a law decreeing death and forfeit of property to anyone assisting the British army with information or supplies.

[NB:  Confiscating the property of disloyal refugees is considered pretty nasty by a lot of people when the players are Israel and the Palestinians.  But no one ever says the the US should restore the descendants of the loyalists the expropriated lands of their ancestors.]

One of the critical litmus tests used by the local committees to smoke out Tories [‘Pariah-baiting’, See, e.g. 1, 2] was a public oath of loyalty to a defense association succeeding the old Continental Association. As historian Alexander C. Flick concluded, the association became the first decisive test of the politics of individuals…. It stamped the individual as a Whig or Tory in the eyes of his neighbors, and treatment was meted out to him accordingly…. Hesitation [to sign] involved suspicion; refusal, guilt. The Loyalist who was true to his convictions, creed, and king was detested, reviled and if prominent, ruined in business, tarred and feathered, mobbed, ostracized, or imprisoned; and all this at the will of a committee, self-constituted and responsible to no one.

Thus, a Revolution and revolutionaries dedicated to the cause of liberty moved to suppress crucial liberties of their opposition—an ironic but not unsurprising illustration of the inherent contradiction between Liberty and Power, a conflict that can all too readily come into play even when Power is employed on behalf of Liberty.

Hesitant to take any steps that might lead irrevocably to independence, the Continental Congress refused to do anything about hunting and combatting [sic] Tories, leaving the task to the separate towns and provinces—this despite the requests from Massachusetts and Maryland for a general congressional test oath for all the colonies. In October 1775, however, Congress learned that Dr. Benjamin Church, one of the top revolutionary leaders of Massachusetts and chief surgeon of the Continental Army, was a traitor in the pay of the British. This grave shock led Congress to urge the various local committees to crack down on everyone who might “endanger the safety of the colony or liberties of America.”

The committees redoubled their efforts in rounding up suspects, imposing test oaths and punishing recalcitrants with disfranchisement or prison. The Continental Army was also authorized to aid in suppressing Tories. Even as conservative a man as George Washington wondered why the Tories, “abominable pests of society… who are preying upon the vitals of their country [should] be suffered to stalk at large, whilst we know that they will do us every mischief in their power.”

[The chapter ends with the following]

… The defeat of the Revolution also required an indomitable will, but General Howe, the commander-in-chief of the British armies after the removal of the disgraced Gage, in October 1775, was an ardent Whig opposed to the war. These inner convictions kept him valiantly trying for a compromise political peace rather than a repressive military solution to the conflict, thereby substantially weakening the resolve of the counter-revolution.

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Seeking Educational Alpha

Nothing however, was neglected by the anxious father, and by the men of virtue and learning whom he summoned to his assistance, to expand the narrow mind of young Commodus, to correct his growing vices, and to render him worthy of the throne for which he was designed. But the power of instruction is seldom of much efficacy, except in those happy dispositions where it is almost superfluous.

-Edward Gibbon, The History of the Decline and Fall of the Roman Empire, 1776.

There are plenty of professions in which individual human performance matters a great deal but is difficult to measure directly in a simple or obvious way.  However, when that level of performance becomes important – which usually means there is a huge amount popular interest and/or money at stake – then that creates the incentive for statistics and quant types to plunge into the numbers and develop those metrics.

Teams sports provides a good example of a case in which an individual player’s contributions to the desired end state – victory – can be difficult to assess.  But there is interest and money, and so, for example, in the sport of baseball, we have the famous Bill James with his Sabermetrics and Win-Shares, and Michael Lewis’ sketch of Oakland A’s manager Billy Beane’s analytical magic in Moneyball.  And you can bet that all other sports now have their own metrics cults and prophets.

But when it comes to the recent fad of measuring individual teacher or school performance, or the efficacy of alternative pedagogical styles, it seems to me that governments are using a completely misguided approach in simply looking at student test scores.

This is because the fair and accurate way to assess teachers is not PC, but whatever way we use must be PC, so PC makes us dumb yet again, and unfortunate and innocent teachers are the victims of the collateral damage who bear the brunt of our collective insanity and unwillingness to come to grips with reality.

And we really need that fair and accurate way to measure teacher performance, because (1) teachers are particularly vulnerable to getting tarnished with an unjustified bad reputation courtesy of teenage angst, self-perpetuating warped perceptions, and the school rumor mill, and (2) the knee-jerk reaction is to go get smarter teachers based on test scores, certification exams, and the place they received their diploma under the assumption that these characteristic will also make them ‘better’ teachers, but (2)(A) there is little evidence to support that assumption (see Education Realist on the subject) and (2)(B) Bizarrely, and most un-PC of all, it will definitely mean the unjustifiable replacement of lots of perfectly adequate black and hispanic teachers by whites and asians but without any likely gains in student achievement.  The value and power of a sane and reasonable metric to prevent this inequitable nonsense cannot be overstated.

How should we assess teachers then if we’re going to go beyond end of year standardized test scores?  We should borrow a page from finance.  We don’t care about a fund manager’s gains alone.  We care whether he can consistently beat the market at the same level of risk.  That’s called ‘Alpha‘.  And we aren’t looking for a teacher’s test scores either, we are looking for his Educational Alpha.  How do we find it?  We move there in a sequence of steps.

1. From Scores to Yield

First, we should recognize that it’s not a teacher’s fault if a student arrives in his class with knowledge well below the standard expectation, and neither should it be to that teacher’s credit if his student arrives knowing 50% of the class material on day one.  That leads us to the concept of ‘value-added‘, which is nothing really new.  You generate two standardized exams which are distinct but test the same range of knowledge, and you give the kid one at the beginning of the term and one at the end and measure the difference in scores.  That’s analogous to ‘yield’ in finance.  If I tell you the price of a stock at the end of the year when you sold it, that means nothing to you unless you also know the price at the beginning of the year when you bought it.

2. From Yield to Expected Yield

But yield isn’t enough.  Some horses are thoroughbreds and will get a lot faster in their first racing season.  Others are draft-horses and won’t.  That’s not the fault of the jockey, that’s the fault of the quality of the material being worked and the hand the trainer is dealt.  Kids are the same; some are quick and smart, and some aren’t.  We are used to hearing about the awful teachers in America’s urban public schools, but it’s possible that some of them are doing the best that anyone can do with what the kids they’ve got and should be getting medals and applause instead of criticism and disdain.  On the basis of yield alone, if you give a teacher a bunch of Einsteins, that instructor is going to look great even if they do nothing, while another teacher given a class full of Beavis and Butthead clones is going to look awful.

So one needs to figure out to what degree one expects a particular child to improve during the course of a term, and then compare the student’s actual performance to that forecast.  The expected yield is like the market benchmark in the finance analogy.

3. Generating Expected Yield

But how do we calculate such a forecast for a child?  The best we can do is continuously collect a vast amount of data on a wide variety of variables from a large number of students and perform some kind of statistical regression analysis.  This regression analysis will show us which variables have the strongest correlation coefficients and are most explanatory and predictive of yields, and a subsequent factor analysis will help tell us which of those variables are strongly correlated with each other so we can reduce the forecasting model to the absolute minimum number of factors while retaining the accuracy of the prediction.

This model isn’t going to be a perfect, but it will probably get us in the right ballpark most of the time for most kids.

The problem is the question of which variables will one be throwing into the statistical sausage factory.  If I had to guess, the strongest predictor would be IQ, but good luck giving every kid an IQ test in this climate.  Fortunately, there are reasonably good proxies for IQ in the results of certain standardized tests that are given to young students, so that’s one way to get around the politics.

But what about other factors?  Some things – like peer groups and life circumstances – are just hard to capture.  Other things are easy to capture, but are politically sensitive and tend to give rise to controversy: race, gender, socioeconomic status, family situation, height and weight, etc.

For the latter group of factors, one faces two main problems.  The first is that this kind of regression analysis is going to produce some very unpopular and taboo results that contradict some of societies most important pretty lies in a way that will threaten the careers of anyone involved in the process of producing them, and the second is that using those results to generate different profiles and expectations for different students is going to drive the usual suspects completely crazy when they notice certain patterns.

But this is the minimum of what you have to do if you are genuinely interested in measuring teacher quality and performance.  The fact that no one is doing it is evidence that, despite all the signalling to the contrary, no one is really interested in measuring teachers if it means we have to look squarely in the face of the part of the problem which lies in the students themselves.  I don’t completely agree with Robin Hanson’s quip that “School Isn’t About Learning” but advocating for school quality isn’t about teacher performance if one isn’t willing to adjust completely accurately for the composition of the class that teacher has to manage, and based on the sometimes ugly truths of reality instead of utopian fantasies.

So, the profile and the model is the hard part, but let’s assume we get it done anyway, and for any student we can plug his vitals into the computer and out pops his expected yield.  That is like an individualized, custom ‘Beta‘ of 1.

4. From β to Δ

So, for any particular student in a teacher’s class, we have an expected change in subject test score and, at the end of the year, the actual change.  The difference is Delta – Δ, and we would expect a lot of statistical noise, and small positive and negative deltas amongst the various students.  But we aren’t measuring students, we’re measuring the teacher’s performance, so we need to add up all the student deltas and take an average, \bar{\Delta}.  And you would want to normalize the deltas to measure them in terms of the standard deviation of the normal student distribution of test scores for that subject.

5. From \bar{\Delta} to α

One expects a teacher to have good classes and bad classes, and good years and bad years.  But if you take all the \bar{\Delta}‘s and average them as well, then the ups and downs should cancel out, and what you have left is the sustained ability to impact students above or below what would have been expected with a merely ‘average’ teacher.  That’s Educational Alpha, that’s fair and accurate, and that’s what we should be measuring.  But we’re not.

And there are definitely some political reasons why we’re not, and why we probably won’t be doing it anything in the future either.  However, since the No Child Left Behind era we have been collecting oodles of data on students and teachers alike (here’s an example from LA), and while they are still doing this wrong, I’m sure some enterprising statistician among you can extract the Alpha scores through a little clever manipulation of the existing dataset.  What would we see then?

Some Predictions.

1. The Null Hypothesis In Education == The Efficient Market Hypothesis

Bryan Caplan has his signalling model of and case against education and Arnold Kling has what he calls the null hypothesis in education (see here: 1, 2, and 3).  The basic idea from both concepts is that, on average, school quality, teacher performance, pedagogical style, teacher test scores, and dozens of other usual suspect considerations in fact make very little difference for test scores and life outcomes, and the primary driver of those outcomes is the cognitive talent and character of the student himself, on which the educational system – really any educational system – can only have the smallest of impacts, if any.  Mostly, the kids are born bright or dull, and unless you stunt them, they’re going to develop their minds and mental skill at their innate rates, no matter what you do.

In other words, it’s really hard for a teacher to beat the student market.

What that means is that we would predict most Alpha scores to be close to zero, with just a few slightly negative or slightly positive, and I’d guess a bias to the negative since one would reasonably expect it’s easier to skunk an entire class than to bring everyone up above their expected level of performance.

And as with repeatedly successful fund managers, there will be a few teachers with sustained and consistently high alpha scores, and it will be very difficult to explain why, what they are doing that is so special, or whether in fact their cases are mere statistical flukes.  In either case, whatever the secret sauce is to their magic, it will prove impossible to replicate and scale across the educator population.

If this is true, then the frame of all our entire education debate and all our over-politicized discourse is completely wrong.  And this is something we could, conceivably, discover right now.

Teachers are right to push back against unfair evaluations and obsession with test scores, but they should be agitating for this kind of evaluation program so they can prove their case instead of constantly appearing like they have something embarrassing to hide and are just trying to avoid scrutiny.

2. Losing The Alibis

One of the terrific shames of our age is that PC makes it impossible for most people to speak forthrightly about their core interests lest in the course of conversation they accidentally step on one of a multiplying numbers of taboo land-mines. That gives rise to an insatiable demand for alibi-frames, or cover stories that allow us to ‘justify’ our actions and desires in the modes our society currently tolerates, whether or not they make any sense or correspond to reality.

But if people invent these alibis out of whole cloth, they’ll just be accused of using racist code-words and dog-whistles and such, and so they have little choice but to ride the wave generated by the influential people who control the bounds of respectable discourse and the direction of political policy, and use rhetorical judo to leverage those ‘acceptable concerns’ into a rationale that will also allow them to get a little of what they want too.

Here’s what happened.  Education reform advocates, social scientists, and progressive policy makers have been facing down the full standard deviation racial gap in test scores for generations under the assumption of the neurological uniformity of all population groups and the corollary belief that they could close the gap through ‘resources’ (i.e. money) and ‘the best teachers’ and pedagogical methods.

It hasn’t happened.  Nothing seems to work.  But that hasn’t stopped the reformers who can’t be convinced to pull the plug and thus keep trying increasingly desperate interventions to save their patient.  But all of those efforts rely on keeping a certain seductive myth alive: that the explanation for the gap is not genes but because of a certain kind of ‘privilege’ which is that all the smartest teachers with all the positive alpha are locked up in the nice white and Asian suburban schools.  And, if only we could get Harvard’s finest to do a single tour in the ghetto before predictably burning out and bailing for jobs in administration or academia, we could solve this problem once and for all.

It’s a fairy tale.  But if you keep the myth of untapped alpha alive, don’t be surprised when other people start using it in ways you don’t appreciate.  That’s practically the only thing to get a non-progressive initiative accomplished in this political environment.

There is a lot of dissatisfaction with the current public school system and a lot of people want out and the ability to pursue alternatives, but without having to pay for private school on their own, which they can’t afford, or to buy a house in an elite school district, which they also can’t afford.  What do these parents really want for their children out of the educational system?  Who knows – lots of different things.  Some want out from under the government’s thumb so they can choose their own curriculum and disciplinary rules.  Others want their kids to have the highest quality peer group. There’s a thousand different desires.  But the one thing these parents are allowed to say they want is better quality teachers and better quality schools, relying on the assumption that these things are meaningful concepts and, you know, exist.

That is, they are allowed to say they want to go to a place where the teachers have more alpha.  How can you tell them no when you’ve been running a massive ‘get more alpha’ campaign for generations?  Hence charters and vouchers and so on.  And a brain-dead never-ending education policy debate.

However, when we actually start measuring teacher alphas, and if we fail to reject the null hypothesis in education, then the legitimacy of the frame of all these arguments and alibis and cover stories will suddenly evaporate.

One the one hand, that’s an unfortunate result for someone like me who supports the maximum amount of educational variety, freedom, and entrepreneurship.  A genuine free market in education won’t produce a company that can magically make Johnny smarter, but it would satisfy what his parents want, instead of some school board bureaucrat.  But progressives will use the result to shut down charters and vouchers as ‘unjustifiable’ based on performance, and thus force everyone into identical public schools for the sake of their collectivist and egalitarian principles and for propagating narratives most compatible with their own ideological perspective.  They’ll also stop anything the unions don’t like, such as the evaluations themselves, and experiments like performance pay.

On the other hand, they might just stop obsessing about ‘the gap’ and let schools go back to tracking students by ability so that teachers can have more cognitively homogenous classes, which are easier and more efficient to teach.  If we could even catch up with 50 years ago, we’ll move far ahead of where we’re at today.

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Liberalism Schafft Sich Ab

Germany isn’t the only thing abolishing itself.

A quote from the past.

In me, the Christianity of my forbears reaches its logical conclusion. In me the stern intellectual conscience that Christianity fosters and makes paramount turns against Christianity. In me Christianity … devours itself.

Friedrich Wilhelm Nietzsche, from the Introduction of the 1918 English Translation of Antichrist (1895), by H. L Mencken.

A quote from yesterday:

… the actually-existing, so-called liberal state is impossible to justify on the mundane liberal terms most intellectuals claim to accept.

…the fact is, mundane liberalism is flatly incompatible with the security state as we know it. That anyone spurred to action against the illiberal security state by the democratic jusificatory [sic] ethos of mundane liberalism has come to seem a little “libertarian,” and may even therefore confess some personal “libertarian” sympathies, suggests to me a problem with “liberalism” as it is embodied in actual political discourse and practice. It suggests that liberalism is effectively a corrupt form of statist institutional conservatism …

Will Wilkinson, 20-JAN-2014.

And some quotes from the last few days:

(1) The whole episode disgusts me – as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today – hounding our opponents with a fanaticism more like the religious right than anyone else – then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us.

(2) … There is only one permissible opinion at Mozilla, and all dissidents must be purged! Yep, that’s left-liberal tolerance in a nut-shell.  … This is a repugnantly illiberal sentiment. It is also unbelievably stupid for the gay rights movement. You want to squander the real gains we have made by argument and engagement by becoming just as intolerant of others’ views as the Christianists? You’ve just found a great way to do this. It’s a bad, self-inflicted blow. And all of us will come to regret it.

(3)When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line. This is McCarthyism applied by civil actors. This is the definition of intolerance. … It’s staggering to me that a minority long persecuted for holding unpopular views can now turn around and persecute others for the exact same reason. If we cannot live and work alongside people with whom we deeply disagree, we are finished as a liberal society.

… There you have the illiberal mindset. Morality trumps freedom. Our opponents must be humiliated, ridiculed and “isolated as perverts”. I mean “bigots”, excuse me.

Orwell wept.

Andrew Sullivan, 04-APR-2014 [emphasis added].  And somewhere from the realm beyond I can hear the scolding voice of Christopher Hitchens whispering similar sentiments.

And Sullivan should have phrased his expression in the declarative instead of the conditional.  Since, it seems evident to me, that we have arrived and we cannot live with people with whom we disagree, and that we are indeed finished as a liberal society because progressive morality trumps freedom, and liberalism has reached its logical conclusion by abolishing itself.

Freddie deBoer also asks, “Is the social justice left really abandoning free speech?” and follows up with:

But I can only honestly represent to you both my personal experience and my read of the current journalism and literature on this subject, and both tell me that there is a distressing current of antagonism towards free expression within the social justice left.

The lesson of Eich’s purging by hashtag advocacy is that it was completely effective and simultaneously completely costless for everyone who wanted it to happen.  That is an incredibly terrifying amount of power, and it guarantees that we’ll see much, much more of this kind of thing in the years to come.  There is simply no reason why not.  If you can get drunk on alcohol, and not suffer any consequences, you will drink.  If you can get drunk on power, and push your opponents around with complete impunity, you will just keep pushing.

But liberalism, as classically understood, with its notions of free and open debate and tolerance of opposing viewpoints which form the basis of the civil society, is not compatible with the exercise of this kind of power, whether it is employed by the state or by a howling mob.

But the mob had a clear choice: ‘niceness, community, and civilization‘ – that is, ‘liberalism’ – or howling.  And it chose to howl; like it always does the moment it thinks it can get away with it.  Now that is knows it has the upper hand – the whip hand – and is just starting to feel its oats, it is simply a matter of time before Jericho’s new army blasts its terrible trumpets and brings down all the other walls surrounding the beleaguered remains of our civility.  No rest until absolute victory.

If one wonders why there is an urgent and compelling need for political innovation and discourse concerning radically different approaches to social organization, then I would argue that this is it.  If any idea threatens whatever rough beast is now visibly slouching towards us, then it won’t be long until such discussions and their participants simply won’t be tolerated and will be silenced, one way or another.

Who knows how much longer the window of opportunity will remain open.  Make all the hay you can while the sun still shines.


Popehat, Harvey Silvergate of Fire: Eventually That Animal Is Going To Turn On You, And You’re Going To End Up The Victim!

@5:20: The thing that makes me laugh the most is that I am considered a right-winger by people on the Academic Left, only people on the Academic Left are sufficiently narrow-minded to call me a right-winger.  Actually, I’m a liberal, but I’m a a civil-libertarian liberal, an old-fashioned liberal who actually not only believes in a decent society that helps its most unfortunate members survive, but who also happens to believe in Freedom.  Because so much of the Left today doesn’t believe in liberty, especially the Academic Left.  There’s something wrong with calling the Academic Left ‘liberalism’, they’re not liberals at all.  They’re really leftist totalitarians.  Why is it, when I’m representing students, so many of those students are conservatives?  The reason is that the campus is a very hostile, alien place for student or faculty members of conservative thought.  I do represent students on the left from time to time when occasionally even they taste the whip of academic censorship, but more frequently my clients are conservatives, and that’s because they’re mostly the ones who are victimized.

The saddest thing about Harvard, and mind you I’m a graduate of its Law School and I’m supposed to be a loyal alum, and I try to be a loyal alum, because I’m trying to bring Harvard back to the principles that it still claims that it believes in, but doesn’t practice.  And that is: respect for free speech, academic freedom meaning respect, or at least tolerance, of views that are considered to be obnoxious, retrograde, Evil!  They’re only words, or essays, and they should be completely protected.  You can be thrown out of Harvard for saying something politically incorrect.  The censorship at Harvard runs from top to bottom.

(AMENDATION: Be sure to check out Sam Harris’ interview with Ayaan Hirsi Ali.

[Ali] … I wanted a quiet life in academia, and I wanted to be safe.

So I approached Cynthia, and she took me to the Brookings Institute, and to Rand, and to Johns Hopkins, and to Georgetown—she took me to all these institutions, and there was no interest. They didn’t say it to my face, but I got the feeling that they were uncomfortable with what I had been saying about Islam.

Harris: So the truly mortifying answer to the question of why you are at the AEI is that no liberal institution would offer you shelter when you most needed it—and when your value to the global conversation about free speech, the rights of women, and other norms of civilization was crystal clear. And ever since, your affiliation with the one institution that did take you in has been used to defame you in liberal circles. Perfect.

Hirsi Ali: Well, it certainly seemed at the time that none of the other institutions were willing to talk about Islam in the way that I do—and specifically about its treatment of women.

Harris: And they still won’t. I consider this one of the great moral scandals of our time. How you’ve been treated reminds me of what many liberals did during the Salman Rushdie affair, blaming him for his recklessness in the face of the hair-trigger sensitivities of the Muslim community.

I’m a liberal by nearly every measure. Give me a list of liberal values and prejudices, and I will check almost every box.

Hirsi Ali: So will I.

Harris: As a relevant counterpoint, I should say that when I was raising money for your security, I got in touch with some of my contacts in the “moderate” Muslim community. In particular, I reached out to Reza Aslan, with whom I was on entirely cordial terms. I said, essentially, “Reza, wouldn’t it be great if the vast majority of Muslims who are moderate helped protect Ayaan from the minority who aren’t?” It seems to me undeniable that if people like Reza are going to argue that Islam is just like any other religion, they have a real interest in ensuring that people can safely criticize their faith—or even leave it.

But all Reza did was attack you as a bigot and deny, against all evidence, that you had any security concerns worth taking seriously. His response came as quite a shock to me, frankly. I was unprepared to encounter this level of moral blindness and ill will, especially at a moment when I was reaching out for help.

People, is this an opportunity to split the reasonable liberals away from the evil mob with whom they still affiliate?  Maybe.)

There is also the historically recurrent and universal human phenomenon of the opportunistic abandonment of formerly claimed ‘sacred’ principles when they are no longer useful or convenient.  The party of a minority viewpoint which is out of power will, naturally, publicly and loudly extol the transcendent virtues of maximum effective tolerance for minority viewpoints.  They will claim that they will continue to respect these sacred principles should their point of view ever come into majority and their party ascend to power.  That the members of a waning majority can, on the basis of the growing-minority’s adamant dedication to these sacred principles, trust the members of that opposition and conclude that they need not resist with all their might and to the last man, and that they can relent and surrender with the confidence that they will be treated fairly and without abuse or retribution.

And then, the minute the old minority achieves enough power to do so, they throw all that away and crush the new minority into powder.  They don’t even feel bad about the obvious hypocrisy, which is, after all, so, so easy to rationalize away.  After all, they were abusing their power for bad, whereas we are only using it for good.  See?  Easy peasy.  So one should always expect it to happen, regardless of any claims to the contrary.

In one particular context, Rod Dreher calls this, “The Law of Merited Impossibility

The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

Or, more simply and abstractly:

It’s not going to happen, and when it does, you people will deserve it.

And indeed, Chapter Two of Alinsky’s Rules for Radicals [Review coming soon], “Of Means and Ends”, is chock full of stories illustrating precisely this pre-power, post-power hypocritical dynamic.  The fundamental question for a non-progressive is “How hard should I fight?  Can I trust them not to be nasty, totalitarian tyrants the moment they take hold of the reigns?  Will they stay true to their espoused principles?”

And you can hear Alinsky laugh and laugh at you.

Ha Ha! Chump Sucker!  Of course you can’t trust them; they have revealed themselves, and without even a glimmer of concern for how it has ruined their reputation.  Of course you can never afford to give them an inch.  Of course they’ll ‘abandon’ these principles; that’s what people always do when they have power, which is why power is so dangerous.  And actually, if you’d open your eyes, you’ll notice that they already have.  The days of discourse have departed.

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Review of “The Collapse of American Criminal Justice” by William J. Stuntz


William J. Stuntz was the Henry J. Friendly Professor of Law at Harvard University before he succumbed to colon cancer at the untimely age of 52.  His book, The Collapse of American Criminal Justice was thus, alas, published posthumously, and so we have lost the chance to hear the man defend his work in open court, to use an apt phrase.

The extremely prominent and prolific 7th Circuit Federal Court of Appeals Judge, Richard A. Posner (who seems to me to be on a leftward drift as of late, but who is also – almost uniquely amongst top tier American public intellectuals – allowed to muse on all sorts of forbidden subjects and use taboo trigger words, e.g. ‘eugenics‘), reviewed the book about two years ago in The New Republic. That’s when I first picked it up, and I’ve been revisiting it periodically ever since.  It’s still an important and influential book, both for its strengths and weaknesses, it is extremely well-referenced with its 80 pages of fine-print end-notes, and since some recent discussion around these parts has focused on criminal matters I thought I should get busy summarizing the book and its thesis.

Posner’s review gets right to a correct point which is that Stuntz’s book is severely mis-titled.  The American criminal justice system is not collapsing at all and if anything is at a peak of power and stability (outside the special case of California, anyway).  But power and stability does not necessarily mean ‘legitimacy’ and in fact, that stability is exactly the problem if you abhor the present condition of the system.  The progressives tend to alternate between outrage and bitter resignation at the current sad state of affairs.  In other words, Stuntz left out the word ‘moral’ before ‘collapse’, and to him ‘moral’ compels much less incarceration and especially many fewer black men in jail.  But without, somehow, any resulting increase in crime.  No one seems to have figured out how to do that, but that doesn’t stop anyone from trying because it’s seen as such as moral imperative.

The issue has been both a thorn in the side and a rallying call for the American left for generations now, but it’s proven an especially hard circle to square.  If you go back to the 1950’s and follow the intellectual, jurisprudential, and academic history of the issue, you’ll find – as with feminism – various ‘waves’ of broad legal strategies attempting to do something about it, most of which have – as with dozens of failed educational fads to close ‘the gap’ – ended up crashing against the rocks of stubborn reality.

It’s become increasingly obvious over the last decade that the last wave seems to have completely petered out into a ‘new normal equilibrium’ with the highest rates of black incarceration in American History.

The Law Is A Harsh Mistress

Personally, and deriving from my past experience as an attorney, I am disturbed and troubled by my personal observations of the criminal justice system as well, though for different, racially-indifferent reasons that aren’t obsessed with the over-representation of one particular ethnicity.  A ‘new equilibrium’ pits the efforts to expand the rights of the accused and reduce incarceration against various opposing trends and forces.  And one of those trends that Stunz highlights has been to greatly amplify and expand the leverage and coercive power of prosecutors and police well past the point of prudence and reason in order to enable them to win cases.

This is especially the case with regards to the severity of modern sentencing, which is simultaneously necessary for public safety, but at the same time offends our modern sensibilities and intuitions to the point of seeming instinctively to be wildly disproportionate to many of the underlying offenses, regardless of their utility in producing socially beneficial deterrence and incapacitation.  An excellent chronicler of such matters is Ken White over at Popehat – here is a great example in his latest post – and I highly commend all his writing to you all.

I agree with Stunz and must concede the point that these expanded powers and immunities, while clearly prone to all sorts of abuse and tragic errors, are probably necessary to win cases that need to be won and, most of the time, should be won, and furthermore would have been won easily, quickly, and cheaply and without resort to coercive leverage prior to the Warren Court reforms, but which now require these extraordinary countermeasures.

So I am torn, along with a lot of other informed observers of the scene who try to stay neutral or balanced.  They say that fear comes from ignorance, but the more you actually witness the inner workings of the system, the more justifiably terrified you become of the nightmarish prospect of ever being caught up in it.

The great, tyrannical evil is the possibility of throwing an innocent person into a process so vicious and one-sided that it is guaranteed to temporarily destroy the normal life of any ordinary individual (and their family) regardless of whether they win or lose, and so threatening with such intense pressures that it practically coerces any normal man into a false confession plea deal.  That being said, outside of a few special categories of crime, I believe this to be an extremely and increasingly rare scenario because of the systemic pressures to select only the most clear-cut of cases for prosecution.  Still, it should make everyone a little uneasy.

So, on the one hand, I almost always want Ken White’s recommendations and wishes to be implemented.  On the other hand, I fear that if they were, the cost would be substantial and prohibitive, as it was during the last phase of leniency, which we’ll discuss shortly.

Logjam And Breakout

Lots of smart people are trying to find a way out of this awful jam, but without much luck.  An obvious suggestion could be, “Just go back to the way things were before the Warren Court.”  And Stuntz gives some support to that notion.  But mention that to any lawyer and watch their eyes pop out of their skull to get a measure of the likelihood of that prospect – our system of law simply can’t evolve in that matter.   Also, It’d be dishonest to say that some of the Warren Court’s reforms weren’t genuine improvements, so it’s difficult to separate the gold from the dross, or even to come to agreement on which is which.

So, returning to those progressives who are particularly concerned about racial statistics, I think you you can appreciate that there’s a certain desperate frustration and hunger for some new ideas and on how to re-attack the problem.  And, you would think, that the repeatedly reemerging need for re-attack would clue one in to the fact that one doesn’t really understand the problem at hand (at least when one isn’t actively attempting to avoid reporting it).  Posner:

Crime rates were very low during World War II (because so many young males were in the armed forces and unemployment was virtually nonexistent) and its immediate aftermath, and as a result the prison population fell. Crime rates remained low until the 1960s, when they took off. The reasons are unclear, [emphasis added] but seem related to the disorders of the 1960s and early 1970s, in particular the growth of black militancy, which Stuntz argues caused the police to reduce their presence in black communities, with the result that black-on-black crime surged.

‘Took off’ is putting it very mildly, and that bolded excerpt seems like something you’d really want to clear up before going off half cocked on your latest crusade.

Insanity, Einstein said, is doing the same thing over and over again and expecting different results.  That would reflect either an inability or refusal to learn from experience.  But what do you call it when you have plenty of clever, motivated people who are pretty good at coming up with creative and novel ways of attacking the same impossible problem, and who can make fame and fortune for themselves regardless of actual results, yet are unable or unwilling to ever acknowledge that the problem itself is insoluble by its very nature because such acknowledgement is taboo?

You call it, ‘America’.

The United States Government spends increasing portions of its revenues buying the latest version of snake-oil from snake-oil salesmen with both sides self-delusionally believing the stuff could be real medicine to regrow that amputated foot.  Some bright fellow says, “Hey, let me try radar and this time we’ll surly locate El Dorado.”  Another shrewd merchant claims his new computer can solve the coordinates of the Holy Grail, and yet another is sure he’s finally discovered the perfect baits for unicorns, snipe, and wild geese.

One could have simply built an El Dorado with the treasure that’s been squandered in its illusory pursuit.  But we won’t give up on El Dorado no matter how many times we fail because its so politically useful; so the market for El Dorado hucksters remains perpetually brisk.

In the world of American law, that tends to involve some clever Academic constructing some seductively persuasive grand new perspective on Constitutional jurisprudence that gives like-minded judges the intellectual cover to implement the tactics of the latest wave in the hopes that this time is different and the great goal will finally be met. And Stuntz was trying to be that clever Academic, and TCOACJ was supposed to make the case for his revolutionary proposal.

But there is no shortage whatever of brilliant progressive lawyers (quite the contrary) who have been trying to do this for years, but without any real intellectual progress and, in terms of actual policy, all to no avail.  What created the logjam? We’ll get to that.

But in the meantime, what makes Stuntz’s approach new?  A breakthrough and good example of ‘out of the box’ thinking.

The box, in this context, is that the progressives are supposed to be big fans of the revolution in criminal procedural protections begun by the Warren Court.  Progressive lawyers, if they have anything bad to say about any of those decisions, it it only that they didn’t go far enough.  The actual attacks against the legal innovations have traditionally come from the conservative right.

The combatants fought it out in the courts for two generations and after a period of real uncertainty, controversy, and excitement, eventually, the bulk of the dust, and the law, had settled.  The liberals knew which side they were on and, over time, had gleaned the entire field of every argument that could be made in support of that position.  The adversaries ended up entrenched and unable to make more progress.  Logjam.

So Stuntz did the unthinkable and decided to argue for reversal of the Warren Court’s holdings and attack them from the left – judging the emphasis on nationally-uniform (‘incorporated by the 14th Amendment’) procedural rights and protections that form the core of criminal legal practice today to be misguided from the very start.

Not to mention a great strategic blunder because, Stuntz claims, the predictable increase in crime led to a political backlash and strenuous efforts in the other governmental branches to offset the effects of the Supreme Court’s impositions, vastly increasing harsh sentences and creating a multiplicity of ‘avenues of approach’ in which prosecutors can always get you for something and then send you away for a long time.

Or, more likely, credibly threaten you with all that, backed by the awesome power of the state, thereby coercing you into cooperating and/or pleading guilty.  As I mentioned above, an ordinary man who fights and wins in court these days may still find himself and his life ruined in the punishing process, so the pressure to settle or submit at the start is heavy indeed.  I’d guess the founders didn’t exactly intend for this result.

Adaptive Modifications of Progressive Ideology

Indeed, Stunz takes up a whole suite of positions at odds with legal views which have become practically holy in their sacredness to progressives, and which are usually thought to be ‘of the right’, but used by him in order to argue for a progressive agenda. He hopes these positions will appeal to conservatives and that progressives will realize the clever exploit and get on board as well.

For example, he criticizes the nationalized universalism of an incorporated 14th Amendment and its inflexible requirements for Equal Protection, and instead deploys a ‘conservative’ argument in favor of more local particularism, variation, and independence.  Whereas progressives have usually argued in favor of adding countless new requirements and intensive procedural protections to ensure the system guards against even the most remote possibilities of error, Stuntz says we should look back and reestablish simple, quick and cheap trial procedures.  Indeed he hopes this will fool conservatives into supporting his proposals when they conclude that they comport with their ideological principles but while failing to conduct any analysis of the underlying ulterior motive and the likely consequences.  My sense is that had Stuntz lived, the conservatives would have indeed fallen for his ploy.

These doctrinal ‘reversals’ make sense if one is fairly cynical about the the nature of the ideological commitment of progressives any particular democratic or legal procedures – ‘whatever the consequences’ – as opposed to being merely malleable and situationally opportunistic means to achieve higher order political ends and moral imperatives.

A century ago, when local communities weren’t prosecuting enough to protect their black populations, progressives argued for nationalization – expanded state and federal controls, mandates, centralization, and supervision to achieve ‘uniformity in equal protection’.  Now that that centralization causes too many imprisonments, it’s suddenly time to revive our respect for the under-appreciated merits of localism, particularism, and federalism.  Fourteenth Amendment incorporations, revered by nearly all progressives today (except, revealingly, in the case of the right to bear arms), were nevertheless reviled during the Lochner era when they protected ‘liberty of contract’ and stood in the way of establishing employment-related rules and the regulation of economic activity.

I think the particular political phenomenon on display here is worth some study.  Progressives are always the party pushing some change in policy as a reform calculated to further the achievement of their prime ideological imperatives.  I’ve never met a ‘content’ or ‘satisfied’ progressive who mostly wants things to stay the way they are, the way they were when they grew up.  There is always some latest political crusade to eradicate that damn stubborn oppression and inequality – to be fought with just as much passion as the last, no matter how trivial the cause, or far out on the diminishing returns curve one finds it.

The fact that this crusading characteristic is absolutely inherent in progressive politics, combined with the glorification of certain favored historical heroic narratives, gives ambitious or status-seeking progressives a strong incentive to identify a new crusade (usually as an extension of territory from the last campaign) and to signal that they support it more intensely and are more fully committed to its principles than others in the in-group.  There is no other way to feed this slouching beast of the future than by constantly identifying something about the present and the past that can be devoured.  Eventually, there’s nothing left.

True, they can be almost reactionary conservative apologists for the status quo when it is part of the traditional progressive platform or power structure and comes under attack from the right.  But since so much of what is established today is yesterday’s progressivism, it’s almost inevitable that a reformer trying to make a name for himself is going to have to attack an old progressive position on some subject if that policy was not helpful but instead delivered us into some frustratingly unsuccessful dead-end.

That this doesn’t happen more often or with greater rapidity is due to ideological inertia (especially for the older generation), the time it takes to get over denial and really accept one is not making progress, and the fact that there are only a few influential writers who are particularly skillful at recognizing weak-positions and dead-ends and advocating for the surprising shifts in progressive ideology needed to move around those obstacles.  There is a short amount of time when the shock of contradiction of long-standing principle seems a betrayal, but very quickly everyone sees the utility of the new approach and gets into line.  Click, click goes the ratchet, and the clicker wins his fame.  This is what Stuntz was trying to do.

Racial Disparities

Additionally, Stuntz’s greatest trick of all is making his seemingly radical proposal appear traditional – indeed, merely a restorative counter-reformation reversing the genuinely radical and aberrant missteps of the recent past.  And to do that he’s going to have to give a particular kind of Historical presentation, which I’ll summarize as well.

But let’s get back to that logjam.  I’ve hinted that previous iterations of progressive efforts at reforming criminal jurisprudence, regardless of their objective merit in terms of making the procedures of the justice system more fair and accurate (if also lengthy and laborious), tended to repeatedly crash against the rocks when it came to achieving the particular goal of statistical racial equality in sentencing.  What went wrong?

Keep in mind that we are not talking merely about the racial incidence of crime.  There are always plenty of fanciful, elaborate, and frankly unfalsifiable theories about the dark forces of poverty, oppression, and racism that are purported to either excuse or shift blame for differential criminal rates between ethnic groups.  I’m with Mencken when he says, “The common argument that crime is caused by poverty is a kind of slander on the poor.”  And anyway, the theories run into some uncomfortable and difficult to explain territory when looking at disparities in non-economic crimes such as rape, other forms of sexual violence, and pure battery without mixed motive.

If progressives really believed that racial incarceration disparities were due entirely to the original incidence of criminality and that the courts could be relied upon to produce systemically fair results, then they would deem it ‘just’, stop criticizing the criminal justice system, and focus on preventing the origin of those disparities in criminal activity itself.

But that’s not what they believe.  They believe that whatever population group variance exists in the conduct of criminality, that the criminal justice system also systemically discriminates against certain ethnic identities, mostly against blacks, but also Hispanics.  If nothing else, then the court system acts as racist amplifier, magnifying the underlying bigotry of the system responsible for the distribution of defendants.  There is so much racism and bigotry baked into the cake of society, the police, the jurors, the prosecutors, and so on, that like an oil spill it finds its way into every nook and cranny of a trial in which it can make itself felt.

This theory holds that it is this infection which significantly contributes to the much larger number of blacks in jail.  Notice that no one ever deploys such theories to account for the massive gap in the numbers of male and female jailbirds.  In that case, differential inclination to criminality is so obvious that it is merely accepted by everyone to account for 100% of the discrepancy.  But if one thinks about this in terms of things like testosterone levels then it ventures once more into uncomfortable territory.  Perhaps personified sexism doesn’t feel the need to throw women in jail like racism feels the need to incarcerate blacks, for whatever reason.

So, the key assumption at work was that racial disparities in incarceration were due to the contamination of the system with racial animus, and that if you could only tweak the system with a hundred minor and a few radical modifications, you could wring all the bias, prejudice, bigotry and racism out of the system.  If you could remove every bit of unnecessary discretion or coercion, if you could give every defendant every benefit of the doubt on every procedural technicality, if you could force prosecutors to put on only the most ‘perfect’ of cases, then what you would get is ‘justice’, which it was assumed would imply ‘statistical equality’.

But even with all these efforts, the waves kept crashing on those rocks, and statistical equality – our El Dorado – was never achieved (far from it).  If you fight a war against human variability then it can never end.  Now what?

Well, one can conclude that either (1) The system is substantially just and fair, and blacks simply, for whatever unfortunate reasons, commit a lot more crime than other racial groups, or (2) Assume that justice simply must require a dramatic reduction in black male incarceration, and since it is now clear that this cannot be achieved by amending the procedures of the administration of justice for increased fairness, then it can only be achieved by whatever other means or techniques which can be predicted to result in reduced imprisonments, regardless of justice, fairness, or consistency.

– Juries –

As for those other means, one could, for example, occasionally put one’s thumb on the scales a few times to help a brother out. By, for instance, allowing peremptory challenges to jurors during voir dire without need for justification or explanation, except for those suspected to be racially-motivated which has been law everywhere in the U.S. since Batson v. Kentucky (1986).

But there’s a big, ugly, and difficult to discuss problem with Batson, which emerges from the inherent problem of all jury trials – which is the jurors themselves.  The ideal jury is a set of ideal judges – disinterested, neutral, impartial, loyal to the letter and spirit of the law, humane, wise, judicious, educated, intelligent, rational, reasonable, well experienced of various life circumstances, a good judge of character and accurate detector of insincerity, and so on.

An actual jury is a set of individuals who are usually each as far away from being ideal judges as you can imagine, and collectively a catastrophic parody of balanced, rational decision making.  To anyone who’s ever seen how the sausage is made, the only plausible defense of the jury system is ‘the optics’, that is, it is a form of semi-effective public-opinion management that puts the public’s stamp of ‘legitimacy’ on the results of the process.  This is so people don’t start thinking that since the judges are in the pay of the government too, that the system is simply a tool used by the powers that be to enable them to railroad anyone they want to.  Any similarity or analogy to Democracy in general is purely coincidental, right?

The awfulness of your typical jury means that individuals have certain predispositions and biases to vote in certain ways, which gives each attorney an incentive to try and stack the deck in their favor, but also a pressing need to eliminate incorrigibles prejudiced against their side.  Since the federal system requires unanimity for criminal convictions, and the state systems all so or nearly so, then a single, stubborn holdout on the side of the defense can cause a mistrial – which gives rise to a certain asymmetry.

The defense counsel is desperately looking for that single holdout, and needs him to achieve justice if the rest of the jury is biased against their client, and the prosecutor desperately wants to remove those holdouts and needs the ability to do so if they are biased in favor of a genuinely guilty accused.  Peremptory challenges are a way of giving each side a way of preventing the other side from stacking the deck, but are particularly necessary for the prosecution.

So you have two potential problems.  The first problem is ubiquitous juror ethnic bigotry.  If the prosecutor figures that every white man in town will always convict a black defendant, no matter how lousy the case, then he will try to pack the jury full of white men and abuse his peremptory powers to remove every black person from the pool.  Batson was at least purported to be an attempt to address that particular danger of injustice.  But that potential is always reliant on certain conditions of bigoted opinion being almost unanimous in a local community, and which I think it is fair to say is much less likely to occur these days (which is all to the better), though it remains a possibility.

The other problem is occasional juror ethnic solidarity.  If the defense counsel figures that every black person in the local community will almost never convict another black person, regardless of how strong the case is, then he has any easy path to obtaining his holdout.  The problem with Batson is that even if this is a true fact, and the prosecutor knows this, then he still cannot remove the biased juror on the basis of this solid empirical correlation because it is a privilege now forbidden to him.

Now, all this is not to minimize the difficulty or exaggerate the likelihood of a sole holdout being able to actually hold out against the rest of the members.  The influence of the social dynamics and the loss of personal time puts a lot of pressure on a lone contrarian to change his mind, and most people succumb to that pressure, regardless of their real views on the merits of the case, or the strength of their biases.  However, if you can get two such individuals on the jury, then your odds of them bolstering and reinforcing each other’s position go up exponentially; two against ten is a completely different ballgame than one against eleven.  If the defense counsel can pick two likely holdouts, and prevent the prosecutor from challenging them, then he’s on his way to victory or simply surrender of the state’s case.

So, in actual contemporary practice, this is a favorite tactic used by defense counsel to prevent prosecutors from unseating prospective jurors they expect will vote in terms of racial solidarity and not in terms of the disinterested and neutral finding of facts based strictly on the evidence presented.

Perhaps you think that that the U.S. should repeal the 6th and 7th Amendments to the Constitution and do away with juries for criminal and civil trials.  But juries are sacred, and anyway, the problem with America is that it has arrived at a point in its political history in which everything that might make a real difference is utterly off-limits.

Singapore, on the other hand, with its multiethnic society and high rates of co-ethnic cohesion and solidarity but inter-ethnic animus, had so much trouble with this phenomenon that it had to abolish juries altogether in order to convict any genuine criminals at all.  People there tend to judge that to have been a wise and necessary move.

But what if your aims were exactly the opposite: you don’t want to convict more, you want to convict less.  All of a sudden you realize that Singapore’s ‘problem‘ can be turned into your solution.  To the extent that this phenomenon already occurs in American criminal courts today, if you could reform the system to guarantee that it happens even more, then you could definitely achieve less incarceration of black men.

And this is precisely Stuntz’s strategy, though he couches it in a more palatable rationale than the raw quantitative cynicism I’ve described above.  As we will soon see, Stuntz will go on to defend ‘neighborhood-scale localism’ by which he really means black jurors trying black defendants from the same local area.

Stuntz is a bit too clever to say this will produce more accurate verdicts.  He knows that extreme localism is usually regarded as more, not less likely to give rise to bias in several well-known ways.  Defendants often request a change of venue or jurisdiction in order to secure a fair trial, because the affected locals are too passionate and emotional to be trusted to be neutral.  Local jurors are easier to corrupt or intimidate, and they will have to live next to family or gang members with a mind for revenge.  It is harder to find both ‘perfect strangers’ to the accused or to the witnesses, or anyone without some close connection to someone who also has been jailed – which gives rise to its own set of biases.

Stuntz knows all this, and he knows about the racial solidarity issue too (he’s counting on it).  And since Stuntz expects fewer convictions to result from that solidarity, he knows that many of those found not guilty will be falsely acquitted.  His main justification for this, however, is a form of jury nullification in which local juries can apply their own sense of mercy, experience, and prioritization to temper the heartless and imprecise over-activity of the prosecutors.

Which in turn reshapes the incentives of prosecutors.  If prosecutors suddenly expect to lose a large fraction of their cases, and have to allocate limited resources efficiently, then they won’t pursue the more marginal ones in the first place.  Stuntz will also go on to suggest that local communities pay for their own imprisonment and legal costs without state or federal subsidy (but not public defender salaries, which he says should be subsidized and should also go up).  Since crime is so geographically concentrated in poor communities, it gives kind to a kind of perverse ‘starve the beast‘ logic where an overwhelmed budget creates the necessity for prudent prioritization.

His case is that since the local jurors actually live in the same community with the criminals who mostly prey on those same locals or ruin their neighborhoods, that they should thus have the power to decide these matters, and since they will the ones who bear the brunt of the cost of these false acquittals, they will thus use their street-level knowledge to wisely refrain from using them in the cases of genuine dangerousness.  Well, that’s his claimed theory anyway, make of it what you will.

Equality and Justice

And all this, even if it means that similar trials in different jurisdictions of different ethnic composition will yield vastly discrepant results for identical violations of the same laws.  My my, what progress we’re unmaking towards that old chestnut, ‘Equal Justice Under Law’.

In other words, the original end was ‘justice’ with the means being ‘fair procedures’ and the assumed – almost incidental – consequence being ‘racial statistical equality’.  But when that didn’t work, the new end is merely statistical equality itself, and the means will be whatever it takes to achieve that, having no relation to ‘justice’ whatsoever (though still masquerading under that false alias, naturally).  “Deserve’s got nothing to do with it.

If one transforms the perfectly respectable value of legal or social equality into the hypothesis of human uniformity – that is, empirical equality – then it not only comes into obvious empirical conflict with reality, but also into ethical conflict with actual ‘justice’; because it turns out that to pursue the goal of justice when redefined in terms of statistical equality requires a tremendous amount of injustice, when defined in terms of merit and just deserts.

Affirmative Action and Disparate Impact are merely a single species that are ideological manifestations of this entire Phylum of policy.  Another recent example can be seen in the recent push by Attorney General Eric Holder, the Department of Justice Civil Rights Division, and the Department of Education Office for Civil Rights, to abuse their authorities under Titles IV and VI of the Civil Rights Act to reduce the racial disparities in the imposition of school disciplinary actions, which resemble the ethnic distribution of crime numbers with remarkable and depressing fidelity.  That’s some pretty nice federal funding you got there, shame if anything were to happen to it, or if you were to get sued and thus crushed forever by us; now lets take a lot at those numbers, shall we?

What puts the ugly lie to these efforts is that they almost never seem to identify any particular racist culprits either as racist individuals or racially-motivated policies.  If some hateful teacher at the school – a closet member of the Neonazi Aryan KKK Brotherhood perhaps – is just out to get black kids, then that individual’s disciplinary record is bound to stand out from the pack, and the evil teacher can be investigated, terminated, sued, and perhaps even arrested.  If a source of a considerable amount of punishment is violation of an idiosyncratic ‘no afros’ rule, then the feds could point to the policy as a mere pretext with an actual origin in racial animus.

But instead, these discipline-disparity statistics, when compared from teacher to teacher or school to school, have a stunningly low variance, and the policies are unobjectionable things like ‘don’t hit your teachers or classmates’ or ‘don’t steal from your teachers and classmates’.  That’s why all these ‘settlements’ – like the gigantic multi-level fraud of Pigford – never result in anyone getting fired or even being issued a solitary letter of reprimand or concern (FOIA it if you don’t believe me), and the terms of the consent decrees are mysteriously focused on rules that have the largest impact on the numbers but not on changes in any underlying policies.

If the federal government was wrong and liable in having an 60/40 white/black agricultural loan-approval rate, but there was nothing wrong with the rules, and every federal loan officer actually issuing credit had similar approval rates, then how come these people aren’t outed as racists and punished and fired?  Because, obviously, the disparate impact originated in something besides discriminatory racism, that’s why not.  And let’s not even get started on the subject of housing loans.

When you can’t find any actual racism or racists to root out, but you’re just so sure the numbers simply must be wrong, then you can rationalize whatever it takes to make them come out ‘right’.  To avoid federal suits, schools will have to discipline blacks much less for serious infractions – thereby guaranteeing more such infractions – and they will start harassing the white and asian members of the – now more dangerous – student body much more for trivial transgressions.  Lose, lose.

What this will mean for the prospects of white and asian parents being willing to live in the ethnically mixed communities that will be implementing these new policies – and to housing prices in the few remaining neighborhoods that don’t have to – is as sad as it is very easy to predict.  “How much will they pay, to stay away?”  No Jim Crow era Grand Wizard could have ever hoped for as much school segregation a century hence and even in the very heart of Yankeedom.

If that’s what the progressives want, they’ll get their wish, but I’m guessing this is just one of those famous ‘unintended consequences’, just a single chess move beyond their maximum policy-analysis horizon.  What they really want is for the numbers to simply go down and equalize and without everything going to hell again like it did in the 60’s and 70’s.  Getting the second part to happen requires some wishful thinking about the details somehow being worked out by the best minds at some later date with a boatload of federal funding and new broad authorities to order people around.  But the first, purely-quantitative step is the top priority, and that is the true agenda to which Stuntz is focusing all of his efforts, to which we will soon turn.

On The Analysis of Criminal Statistics

However, before I begin in earnest, I will mention that as time has gone by I’ve read many other sources on the evolution of America’s crime situation, and a few of them stand out as good prerequisites to properly color one’s ability to interpret Stuntz’s work as you read it.  Crime is a notoriously difficult topic to study in a rigorously Scientific manner, even if the related subject areas weren’t strewn with taboo land-mines; which they certainly are.

There are countless interacting variables with all kinds of feedbacks and independent autonomous actors and institutions with their own conflicting agendas.  It is ‘a simultaneous system’, the data is neither clean nor without controversy, and there are no good controls.  The march of History, in particular, is not kind to any criminologist trying to extract a signal or trend discontinuity from the noise of any time-series because whole suites of seemingly independent attributes seem to change in tandem.

For example, if homicide rates drops simultaneously with four major changes in policy and jurisprudence, two new forensic technologies, three new synthetic euphoric drugs entering the black market, a doubling of the police force, a quadrupling of the incarceration rate, a loosening of border controls, a broadening and deepening of distribution networks made up of a surge in immigrants from contraband-smuggling countries, three major advances in emergency medicine, flight to the suburbs, changes in racial composition, and demographic transition to lower youth-cohorts as percentages of the overall population.  All this while the per-capita affordability of some drugs has increased with the economy, the quantity demanded increased due to less stigmatization, the quantities supplied collapsed or glutted with the coming and goings of foreign wars, etc., etc. …  And the question is how much credit or blame shall we assign to each important change?

Another example.  Recently, Harvey Weinstein begged forgiveness for the detrimental cultural impact of all his gun-violence-saturated films by promising not to make any more but also by green-lighting a hit-job on the NRA, as opposed to one targeting the rest of his profession.  Well, fine, that’s easy to do after your first billion, and I’m not persuaded at all that there’s any correlation between violent entertainment and murder rates.  But if crime-studying sociologists really believed in the significance of firearm-imagery, like their frequent silence in the face of Weinstein-like statements implies, or like they sometimes say they do, then you would expect some ‘Environment of Cultural Influence’ / ‘Hollywood-Violence-Causation Index’ to be a major factor in analysis of crime trends, which it never is, so somebody is pulling our leg somehow.

The point is that regression analysis and even the most advanced statistical techniques reach past their proper limits with these sorts of complex phenomena playing out on a shifting cultural and technological landscape.  Avoid simplistic models and restrain your overconfidence in your preferred ideological models; the truth is it’s a giant welter.  As Posner says:

It is apparent from this important book that the causality of crime and punishment is immensely complex. Intelligent reform will require an understanding of that causality, and such an understanding cannot be obtained without statistical analysis that measures the respective weights of all the conjectured causal factors. No one has done that, though Steven Levitt may have come closest.

Personally, I don’t think Levitt got very close at all, and that’s another story.  But besides purely empirical issues, there are certain ‘philosophical’ questions that arise as well.  If some metric of crime is down 50%, but the resources, effort, invasions of privacy, and brute coercion necessary to police the society sufficiently to achieve that result is up 1000%, then are things getting ‘better’ or ‘worse’?  And if the criminal system is expending that effort to ‘clean up the mess’, then who or what gets the blame for ‘corrupting’ the population into higher tendencies towards criminality?  Put differently, if law enforcement is the brakes, then what is the gas, and how much of each is responsible for the overall ‘velocity’?  What if black incarceration rises mostly because law enforcement officials now pay attention to black-on-black crime that they used to ignore for racist reasons?  Is the system now more or less ‘just’?  Again, a welter.

So understanding the modern history of American crime is a multidisciplinary undertaking that is, at this point, as much art as science.  When exploring the subject it helps to get in the right frame of mind – like lowering the lights and putting on some mood music as a facilitator to romance.  And it is, in my judgment, simply not possible to understand the motivations of key players during the period of study without walking a mile in their shoes and simulating their anxieties and concerns in your own mind.

One of the things you can do is to watch some classic films that do a good job of portraying the gritty, sleazy, increasingly crime-plagued urban scene of late 60’s to early 80’s America.  Taxi Driver is one, perhaps also Death Wish and even The Watchmen or Robocop.  Audiences were obsessed with and despondent over the real peril of the crime situation for a long period, and so Hollywood responded in kind, exercising, as is their wont, a little bit of their artistic license, here and there.

But books are both more realistic and more evocative, and in my opinion the best book for ‘properly setting the mood’ is The American Millstone, (An examination of the nation’s permanent underclass) which was a collection of articles published in the old Chicago Tribune in the early 1980’s and focusing on the black ghetto of North Lawndale at the moment of the very nadir of that district’s social collapse.

Another great peek into the subsequent generation of the life of the Western Lake Michigan underclass is Jason DeParle’s refreshingly honest American Dream, which provides some solid, ‘straight from the horse’s mouth’ evidence for the often vociferously denied but obviously true welfare-magnet hypothesis.  That, since Shapiro v. Thompson (1969) people on government welfare know Econ-101, respond to incentives, and will thus readily pick up and move to wherever the rumor mill tells them that the ratio of benefits to cost-of-living is highest.  Professorial-level Econ exists to always provide us with inaccessibly subtle assurances us that Econ-101 never actually applies when it is politically inconvenient.

Anyway, if you’re going to read Stuntz’s book, I can’t recommend strongly enough that you read Millstone and American Dream first to provide the indispensable context.  Also, keep that fifth of bourbon nearby, you’re going to need it.

Now let’s dive into the book.

I. Introduction: The Rule of Too Much Law

Stuntz begins the book with the motivation for reform – a familiar but surprising mild parade of horrors about the criminal justice system.  An initial claim (somewhat reminiscent of Harvey Silvergate’s thesis in Three Felonies A Day) is that there has been a breakdown in the rule of law because there are now so many criminal laws with such high maximum sentences that the system (police and district attorneys) are swamped and cannot possibly prosecute them all.  That gives these government agents a large amount of discretion to decide which laws to enforce and upon whom, which leads to unjust discrimination.  He says, “Discretion and discrimination travel together.”  That criminal law does not therefore function as ‘law’ – predictable and consistent treatment and consequences – but as a ‘menu of options’ for police officers and prosecutors to use as they see fit.

He also introduces the ‘pendulum’ of shifts in severity that characterizes the postwar experience of American Criminal Justice, but demonstrates a kind of reverse Butterfield-effect when he says that in the 1950’s the system was made into the most lenient in the world at the same time that crime was exploding – as if this was some kind of coincidence and strategic error rather than cause and effect.  But whether or not there was causation at play, the explosion of crime did eventually hit its breaking point in the early 1970’s – in New York City, the murder rate more than quintupled in the mere 22 years between 1950 and 1972, an average annual growth rate of nearly 8% – which caused a long and continuous turn towards more draconian penalties.

The year 1972 comes up again and again as a kind of high-water-mark of naive progressive policy that coincided with an almost complete social nervous breakdown with regards to exploding criminality.  After that the dam holding back reactionary political pressure finally broke.

I’m increasingly convinced that the the sociopolitical dynamics of the 20th century will be remembered by future historians as being characterized by repeated premature attempts to take permanent holidays from reality.  But our trust-fund vacationers are shocked to discover the bank account has gone empty and they come to realize that their inheritance, when unmanaged, did not produce enough interest to be self-sustaining.  After nearly going broke pursuing paradise, they creep back, depressed and with bitter resignation, to the thankless tasks and salt mine work of governing in accordance with mere, tragic reality.

One could tell a little just-so story in a play in four acts.

The first act begins in the late 40’s and early 50’s with liberal naivete and undue optimism that imagined prison and punishment was part of the problem and lenience and rehabilitation were more enlightened techniques that would reduce brutality and discrimination as well as reduce crime.

The second act is the consequent explosion in crime beginning in the late 50’s.

The third act is the slow shift towards severity starting around 1972, and the fourth act is the explosion in incarceration in the 80’s with its partial and lagged contribution to the resulting drop in crime beginning in the 90’s and continuing to the present day – which perplexed Butterfield but not Charles Murray.

But this story isn’t exactly universally accepted.  Stuntz, and many other progressive scholars, say that act one and act two were merely simultaneously occurring phenomena, with an unfortunate lack of feedback between the deteriorating situation on the streets and the political advocacy on the part of legal reformers.  Act three was political opportunism on the part of the right, and Act four is wrong about causation – we don’t need to ‘keep locking ’em up’ in order to maintain order.

The effects of the timing of this historical shift on the broader culture should not be underestimated.  Many neoconservatives, Irving Kristol in particular, specifically identified the disaster of the rapid increase in the criminality of their old urban neighborhoods, and the inability and/or unwillingness of liberals to do anything about it, as being prime motivations (along with progressive support for Communism) that made them realize that many American liberals were irredeemably deluded and dangerous, which in turn provided the impetus to leave the fold and switch sides.  If John Lindsay had managed to keep order in Brooklyn and Harlem, would Saddam Hussein be in power today?  What about The Ukraine?  The world may never know.

Stuntz uses the rest of the introduction to make some other charges.  One example he cites is that the rate of guilty plea convictions is at a historical maximum (over 95%) and thus far too high as a prima facie matter.  However, he does this without accounting for dramatic technological improvements in the ability to deliver forensic proof of guilt through advances in biochemistry and ubiquitous digital surveillance.

There’s not much point going to trial when the fuzz has your DNA, traces of the victim’s blood all over your floor-mats, and the red-handed murder-scene selfie you posted to instagram while you simultaneously posted, “Yo dawg, just hit double digits on my murder count!” to your facebook wall.  Think I’m exaggerating?  Ask your local DA.  One’s defense counsel is going to humbly suggest that it is in your interest to take the deal.

No one foresaw the fact that law enforcement would, spurred by the restraints imposed by reformist Jurists, and under immense political pressure to somehow contain the disaster while still operating under those constraints, eventually make use of a simultaneous boom in advances in biochemical and digital technology and discover and develop the physical tools needed to win the legal-procedural arms race with the courts.

The point is that the revolution in the Constitutional Law of Criminal Procedure meant that the Law Enforcement community and its political enablers had to build what is effectively a Police State in order to do the minimally acceptable amount of actual Policing.  Both sides are at DEFCON 2 and no one knows how to deescalate that Cold War tension and get both sides to compromise and agree to a disarmament treaty.  And we all pay the price for that, one way or another.

But the tools and data of that powerful Police State also makes it hard to prove a case for ‘systematic injustice’ in guilty pleas when you start digging into the incontestable facts of most of these cases.

Actually, let’s not do that, because that very politically dangerous.  After all, it could almost provide high-caliber ammunition for adversaries making the exact opposite claim that, in fact, there’s no racial problem at all that is distinct from the mysterious origins of crime, and that the system is as just and fair as it ever was.  The utter rarity of potential miscarriages of justice in homicide case convictions in the current system – in a country with over 40  murders a day – is the reason why the entire profession of journalism has to go hysterically crazy on the rare occasion when one even remotely plausible case of erroneous execution surfaces.

And they don’t surface ‘today’, because even after the AEDPA, capital cases can still take decades to make it through the system, so when problems or errors are found, they are discovered about crimes that occurred at least 20 years ago.  Here, for example, is a wrongful execution case originating in a murder which happened 31 years ago.

The inference the article’s author would like you to draw is that this is an inherent problem with all capital punishment cases extending to the present day, and this is in fact what most reasonable people who are against capital punishment accept.  They believe the system still has too high a probability of executing an innocent person.  But that belief is false, yet that untruth continues to be propagated by those with an alternative, moralistic reason to oppose capital punishment, but who wish to cover their moralism with a plausible empirical objection.  Too bad it’s now untrue and one cannot avoid facing the moral question head on.  What makes the last quarter century entirely different from everything before 1989 is DNA.

Add that to the rest of the vast portfolio of forensic techniques at our disposal and one realizes that our era of criminal prosecution is qualitatively distinct from everything which has gone before, which invalidates a lot of traditional assumptions of ancient pedigree that were perfectly valid in their time, but no longer.  Ultra-powerful forenics does to law enforcement what ultra-powerful nuclear bombs did to geopolitics – it’s simply a game changer.  It’s disingenuous in the extreme to use cases from before our new age to try and ‘prove’ that we remain beset by the same iniquities.

On page 2 of the book Stuntz says there is some evidentiary support for the feeling that the criminal justice system is frequently unjust and too many innocent people going to jail and cites a report on DNA-based exonerations from The Innocence Project.

Well, Handle has direct experience working for an ‘innocence project’-like legal clinic, and I hope you will believe him when he tells you that the days of headline-worthy exonerations are over.  Let me share a little anecdote with you.  The first ‘innocence victory’ to which I provided assistance was the case of a very clearly guilty woman with a long criminal record who was sentenced to 9 months in jail for substantial larceny for which the evidence was good quality video of her committing the act. She nevertheless complained that she had insufficient time to confer with her public defender to participate in her own defense, which is, we pretend, a classic indicator of a risk of injustice.

The particular jurisdiction in which the crime was committed had a strange rule at the time where the amount of time the defender spent with his client was not so low so as to be considered ineffective assistance of counsel, but low enough to warrant reversal of conviction in certain circumstances.  Well, lo and behold, we put the motion before the judge, and the judge set our ludicrously larcenous lady at liberty!

I was expected to celebrate my first win – ‘for innocence!’ – and I have to admit to my shame that at the time I felt proud of myself for writing a damn fine motion – which is something I now regret.  I ended up feeling a bit queasy about it later, and called up the defense counsel to talk about her release.  Even as her defender, he thought it was an awful judgment.  She was so obviously guilty that he met with her briefly only to recommend she take the deal on offer.

He said she paid little attention to him, was rude, obnoxious, and hostile, and dismissed his attempt at imparting his advice with a, “Yeah, yeah, I’ve been on this train before, I know what’s up!”  Subsequent to which she did in fact take the deal, and only later, once imprisoned and complaining about her well-deserved plight, did someone hook her up with the clinic to make a shot in the dark effort.  And she hit me, and got sprung!

I doubt the victim of the theft would have been very happy to discover that outcome, but it was definitely an eye-opening experience for yours truly.  Who really holds power in a society, and determines the limits of the law, when such things happen routinely?  It ain’t civics-101.

At any rate, it didn’t take long to discover that, while not that egregious, 99.9% of contemporary ‘innocence’ cases work like this and exploit what laypeople like to derisively refer to as ‘mere technicalities’.  Trust me, we were all desperately searching for any slight hints of actual major injustice – our path to local fame – but we almost never found any.  You just can’t argue with genes, molecules, and digital data these days.

But if we can’t find them today, we still can find these cases of injustice in the pre-DNA past – which is where the innocence project’s actual headline-worthy exonerations all come from.

And if you dive into those cases, you’ll find that almost all of them fit a particular pattern:

It’s prior to 1989.  A Woman claims she’s been raped by a stranger.  A suspect of suitably similar appearance is found.  Evidentiary samples of tissue, bodily fluids, clothing, etc. are taken, subjected only to crude chemical analysis of limited value (a simple blood type test, perhaps) but not DNA testing, but then, consistent with new best practices, indefinitely maintained and carefully preserved.

There’s a line-up, or the photograph-book version, and the woman, maybe a little shaky in her recollection as first, verifies the suspect was her assailant.  The more she looks at the man or his image, the more sure she becomes.

At trial, as has been the case for all of history up to that point, none of the physical evidence is compelling or dispositive, and the case relies mainly on the victim’s testimony.  She is absolutely certain by this stage, confidently pointing at the defendant as she identifies her violator.  She really believes it, and it shows, so the jury believes her.  He is found guilty – beyond a reasonable doubt – and sentenced to prison for two decades.

But he was innocent.  His protestations that he had never seen that women in his life were true but not believed.  The testimony of the victim was believed instead, because the jurors felt the most sympathy for her, and because she seemed as sure as the sun that it was the accused who did the dirty deed.  So he rots in jail, an innocent man, falsely accused, falsely convicted.  And nobody knows the awful truth but him.  A nightmare.

Until!  DNA evidence becomes widespread, routine, and orders of magnitude more powerful and accurate while equally less expensive.  A few motions with the court, a reevaluation of a specimen of semen and … exoneration!  And, usually, a very large but well deserved payout courtesy of the taxpayer.  A much delayed triumph of justice.

Question: How often does this scenario play out anymore? Answer: It doesn’t.

And this is a major and critical weakness for any argument that uses these grounds and the exonerations of decades-old convictions to derive the system’s current odds of error and injustice, or to do what Stuntz does and say that we can acquit more black males and feel confident we are producing more justice than injustice.

And it hints at an issue which is beyond the scope of this post, but which warrants at least a mention here, and that is that the special category of crime I mentioned above which still generates the greatest risk of false and erroneous prosecution is sexual assault.  Much has been written about the general unreliability of witness testimony, which was excused historically out of pure necessity and for the reliance upon which there is decreasing justification in this age of forensic technology.

But, while I am not a Psychologist, there seems to be a particular problem with memory errors and false remembrances (perhaps induced by a combination of intoxication and trauma) that especially plagues the accuracy of witness testimony in a rape case, but which is made worse (that is, more dangerous to arriving at an accurate verdict) because the erroneously reconstructed memory is genuinely felt to be real and clear with certainty by the victim herself.  This gives her testimony particularly strong influence over the jurors.

Keep in mind, any criminal justice system can only ever be as good as its evidence.  It’s odd that we’ve famously exonerated several hundred innocent men for rapes they did not commit, and blamed ‘the system’, but never blamed the witnesses who gave the false testimony.  We never took a hard look at the root cause and core problem – the origin of the poor quality of the evidence upon which ‘the system’ relied.

And upon which it still relies, precisely because we never took that hard look.  Because, again, that topic has become off-limits.  Since that is unlikely to change, my counsel to men would be to avoid sex with strangers, which, anyway, is always good advice.

II. Brief Historical Overview

In Chapter 1, “Two Migrations”, Stuntz presents a synopsis of the history and demographics of crime in America.  He briefly mentions the influx of Europeans and Irish in the mid 19th century, and then the Great Migration of millions of blacks from the rural South into the urban North in the early decades of the 20th century, both of which were followed by spikes in criminality.  He hints that racism may have had something to do with it.  Then on page 20 he pulls an Unz and hits you with his Figure 1:


And as tight as that correlation may appear, it’s actually much stronger if you increase the granularity of the date to the level of individual zip codes or neighborhoods.  Stuntz:

In Chicago’s upscale, racially integrated but mostly white Hyde Park, today’s homicide rate is 3 per 100,000.  In neighboring Washington Park, with a poor, 98 percent black population, the rate is 78 per 100,000.

That’s an increase of 2,600%, for those keeping score at home.  Which, if I recall correctly, is even greater than the increased risk of experiencing a fatal incident when one deploys to a warzone.  Pause, and think about that for a minute.

Stuntz highlights the intense geographic concentration of crime in America, and uses it to support his case for more localism:

In terms of their exposure to criminal violence, Americans live in two strikingly different nations.  That truth goes some distance toward defining our strange politics of crime, as voters in safe places elect the officials who shape criminal justice in dangerous ones.

Well, you see how he’s setting up the pins here.  But one might respond to this by asking what it means to be ‘in safe places’ if you also have to commute from the suburbs to work in the city in a dangerous one.  Or perhaps if one wants to enjoy inner-city pleasures such as a run in the park or a visit to the museum.  Is it unjustifiable for such outsiders, commuters, or tourists to have some say too?  And don’t those elected officials shape criminal justice in both safe and dangerous places equally?  But, again, Stuntz wants those dangerous places to become politically independent and make as many of their own decisions concerning criminal justice as possible.

Stuntz then proceeds to explore a few potential explanations for the historical spike in crime starting in the late 1950’s, and hints at (but never endorses) a conservative-sounding link between crime rates and punishment patterns:

… northern and western prison populations fell while crime rose; the number of prison inmates per unit crime plummeted.  In 1950, New York State housed 28 prisoners for every New York City homicide.  By 1972, that number had fallen to 3.  The figures for Chicago and Detroit, Los Angeles, and Boston are similar.  If punishment deters crime, as a good deal of social science suggests, its absence must work in the opposite direction: collapsing punishment in the generation after 1950 surely contributed to skyrocketing crime in that same generations.

What is remarkable and frankly revealing about that quote is that it even needs to be said at all.  As if it were some recent discovery or surprising confirmation of some old wives tale, as opposed to being the universal opinion on an obvious truth held by all informed observers for the entirely of human history prior to … 1950 (or perhaps 1850 for a few particularly prescient individuals).  It only took 60 years for a progressive to finally admit it, though still in language as hedged and pusillanimous as possible.

Stuntz moves on to a discussion of his historical ideal – the highly localized management of criminal justice in enclaves of particular nationalities, often run by the bosses of the local ethnic-based political machines, in their quest to satisfy their vote-banks.

These legal standards called for moral evaluation, not just fact finding.  Jurors were free to acquit whenever criminal punishment seemed, on balance, unfair.

Acquit they did, and frequently.  More than three-quarters of turn-of-the-century Chicago homicides led to no criminal punishment – not because the the perpetrator could not be identified, but because no jury would convict.

If you want a picture of the multicultural, multiethnic future, imagine racial-solidarity juries pumping out not-guilty verdicts—forever.  Stuntz did!

And, well, maybe those acquittals resulted from subtle and refined ethical evaluations of balanced fairness.  Or maybe something else was going on.

Either way, apparently people weren’t actually that happy with that system and proceeded to rapidly reform it with a zeal to remove local, organic, personally-engaged, yet also often corrupt ‘community policing’ and replace it with detached professionals working for a distant, central authority.

In fact, it was the early progressives who pushed this change and made rational reform and honest modernization of municipal policing, and the broader strategy of the eradication of the corrupt political machine system, some of their top priorities.  Stuntz says, in a way, that a century hence the modern managers of the system the early progressives created have both become too efficient but more importantly too insulated and disconnected from the neighborhood-level consequences of their efforts.  So the old progressive positions, whatever their logic or motivation, simply have to go if we’re going to reduce imprisonment.

Stuntz returns to presenting the history of crime statistics and says:

In the span of little more than three decades, Americans first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s.

And he backs it up with lots of numbers and tables.  He goes on about the present state of affairs:

Today, among white men [NB, not non-hispanic white, which is a typical statistical confounder], the imprisonment rate stands at just under 500 per 100,000 population: the highest in American history by a large margin.  Among black men, the number tops 3,000; among black men in their twenties and thirties, the figure exceed 7,000.  If present trends continue, one-third of black men with no college education will spend time in prison.  Of those who do not finish high school, the figure is 60 percent.

Stuntz compares what has happened to levels of violence in the past century in NYC:

New York is America’s safest large city, the city that saw crime fall the most and the fastest during the 1990s and the early part of this decade.  Yet New York’s murder rate is 80 percent higher now than it was at the beginning of the twentieth century-notwithstanding an imprisonment rate four times higher now than then.  That crime gap is misleadingly small: thanks to advances in emergency medicine, a large fraction of those early twentieth-century homicide victims would survive their wounds today.  Taking account of medical advances, New York is probably not twice as violent as a century ago, but several times more violent.  At best, the crime drop must be counted a Pyrrhic victory.

III. The Wolf By The Ear

Stuntz opens chapter two concerning the legacy of slavery with Jefferson’s famous quote:

We have the wold by the ear, and we can neither hold him nor let him go.  Justice is in one scale, and self-preservation in the other.  – Thomas Jefferson, Letter to John Holmes (1820)

Stuntz tells the real political history of this letter (it was written for public consumption), and draws an analogy to the current prisoner population:

…the idea of reducing the nation’s enormous prison population may frighten those who live outside prison walls … Twice before in the last 75 years American’s imprisonment rate fell sharply … The first time, the nation’s murder rate rose nearly 30 percent; the second time, the murder rate doubled.

… Justice may compel the conclusion that far too many black men live behind bards-but self-preservation may suggest that keeping them there is nevertheless the best of a bad set of alternatives.

A typical but incorrect hypothesis is that all this incarceration is due to the war on drugs, and there are some other common ‘usual suspects’.  But Stuntz writes:

Still, drug prisoners amount to only 20 percent of the prison population.  If all drug cases were removed from statistics, America’s imprisonment rate would still have quadrupled over the past thirty-five years.  Drugs were a significant factor in exploding prison populations, but they are not the explosion’s primary cause-and the same is true of three-strikes laws and mandatory minimum sentences that increased punishment for various classes of nondrug crime.

Stuntz says that disparities in incarceration are mostly due to disparities in criminality, and only slightly due to racial discrimination contaminating the processes of the justice system itself.

The black crime rate is substantially higher than its white counterpart; the difference between the two rates account for most-though not all-of the difference between black and white imprisonment rates.

What about Europe?  They’ve got recent-origin crime problems too, and they imprison many fewer people per capita on average – four to seven times fewer than the US.  Whether or not there lies a causal ‘because’ in there is for you to decide.

With the large exception of homicide, most Western European nations are are crime-ridden as the United States or more so.  Belgium, France, Portugal, spain and Great Britain all have higher rates of robbery than the United States.  Austria, Denmark, the Netherlands, Spain, Sweden, Switzerland, and Great Britain have higher rates of burglary – in most instances, twice as high.  Rate of auto theft are higher in France, Denmark, Sweden, and Britain.

IV. Some Legal History

In Chapter 3 Stuntz again claims that black crime (as opposed to ‘all crime’) is governed by white judges and white politicians and the white voters that elected them.  Whether this is even accurate anymore in many heavily black jurisdictions is subject to some doubt, but later on Stuntz complains about the Supreme Court’s mandates and says:

The ideals that rein in oppressive criminal law enforcement usually come from constitutional law: meaning, mere politicians cannot change or ignore them.

And neither can anyone be held accountable for their costs and failures.  But if those rules come from on high, how exactly do those white politicians and white voters who elected them govern black crime?  What room for maneuver do they really have left?

Stuntz tells the History of the origin of many of the criminal-law-related clauses in the Bill of Rights and says that many of them are anachronistic.  They were never intended to apply to normal criminals – the proper domain of state authority – and they weren’t updated (except through clever reinterpretation) to keep pace with the 18th and 19th century evolution of criminal justice into the modern system which was more or less complete by the Civil War.

The notion that these rights might serve as the legal foundation for a justice system that punished not heretics and seditious pamphleteers but murderers and rapists was foreign to the men who wrote the Bill of rights.  In large part, that was so because the criminal justice system to which the Bill’s constitutional ideals apply today did not yet exist.  There were no police forces or district attorneys’ officer in 1791, the year the Bill of Rights was ratified.  The Bill contains no provision designed to rein in the discretionary power of public prosecutors: plea bargaining and prosecutorial discretion, fundamental features of today’s justice system, were unknown in the late eighteenth century.  Defense lawyers like Adams and Hamilton were few and far between; the battle between opposing lawyers that dominates criminal trials today was a rare event.

And later, after a long history of the development of criminal law:

Federal criminal law was meant to be narrow, and federal criminal law enforcement was meant to be rare.

He then goes on to explain the inevitable and continuous expansion of federal law enforcement efforts – the initiatives and authorities and laws and so on.  Much of it, in the Reconstruction era and thereafter, focused on extralegal behavior by Southern Whites such as lynchings and KKK activities.

Stuntz dedicates an entire chapter to the important constitutional matter of the ‘incorporation‘ effect of the 14th Amendment on the states’ abilities to fashion their own criminal law as they saw fit.  It’s a fascinating history, but the bottom line is that, gradually, in the name of equal protection, all the states were compelled to obey one, strict federal standard.  As David Dudley Field, defense counsel in the Supreme Court where his brother Stephan was a Justice (and who have been mentioned in this space before), said:

“… our fellow citizens of the whole nation … bear us out in the assertion that the people did not suppose they were thereby changing the fundamental theory of their government… [when they enacted the Fourteenth Amendment].”

But that’s what happened.  Whoops.  Be more careful next time when writing Constitutional Amendments – those Supreme Court Justices are wily characters that can turn a rubber glove into a ham sandwich if they put their minds to it.

V. Criminal Justice In The Gilded Age

In the next chapter Stuntz extols the virtues of his model criminal justice system – the processes that were employed by Northeastern municipalities in the early 20th century.  Today, trials are so difficult and intensive, and pressures for efficiency and to maintain a winning track record so acute, that many fewer than the optimal number of serious prosecutions are performed, and many more than the optimal number of trivial cases are tried, but with nearly all of them resulting in conviction.

Trials and acquittals alike were far more common than today … Because acquittals happened frequently, they were also less newsworthy than today.  So, in the Gilded Age Northeast, prosecutors paid a smaller political price for acquittals and were less eager to avoid them than today.  Note the logic: less elaborate trial procedures helped defendants – not the government – by making both trials and acquittals ordinary events.  Prosecutors do not invest heavily in avoiding outcomes that seemed ordinary.

Well, perhaps that was true back then. But there is a bit of a slight of hand at play here.  Stuntz says this is all about costs and media pressure and politics.  But why were there more trials and more acquittals?  The reasons is that while prosecutors in the Gilded Age were held to the same legal and formal standards of proof in order to bring cases to trial, in reality present-day prosecutors are held to much higher standards both as a practical and legal matter.  Gilded Age prosecutors would initiate trials as soon as they met the grand-jury legal burden of proof of ‘probable cause’ (reasonable likely’), only convicting when proving the case ‘beyond a reasonable doubt’ (almost certainly).  Today, prosecutors will usually avoid pursuing a case unless the evidence seems ‘clear and convincing’ (very probable) from the get-go.

Personally, I see that as an improvement, because, as mentioned above, the process of carrying a trial to acquittal can still be personally ruinous, and I prefer that prosecutors be more restrained than aggressive.  But your mileage may vary.  The point is that Stuntz neither expects nor desires more trials (the inputs), and instead merely wants to see more of those juicy acquittals instead of nasty convictions (the outputs).

But circumstances in the Gilded Age were, of course, very different in the South:

Underfunded southern law enforcement agencies paid little attention to black neighborhoods, which led to racially skewed crime trends.  One study of Mississippi homicides in the 1930s found that three-fourths of the state’s murder victims were black, as were two-thirds of the killers. … Killers of whites could expect a serious effort at arrest, prosecution, and punishment.  Killers of blacks-white ones to be sure, but many black killers as well-were more likely to escape detection.  This is why prison populations in the Jim Crow South were almost certainly whiter than the offender population, and sometimes whiter than the general population.  Black-on-white crime was rare and was punished severely.  Black-on-black crime was common, and officials often ignored it.

Stuntz goes on to lay out some of the history of race relations in the South following Reconstruction and focusing on the politics of lynch mobs and black-vote suppression, and the fact that, counter-intuitively to those marinated from birth in the contemporary narrative and ignorant of the history, Republicans and Democrats opportunistically switched their party’s positions on multiple occasions in regards to racial matters.  This depended on the overall national electoral calculus and the intensity of the need to appeal to the highly polarized white or black southern voters respectively.

And everything was strange and different in the barely law-abiding and very violent Wild West.  An example:

In 1859 [California Chief Justice David] Terry challenged U.S. Senator and San Francisco political boss David Broderick to a duel at which Broderick was killed; Terry was tried for murder and acquitted.  Among those with whom Terry has a beef – it was a long list – was Stephen Field [see above], who served with Terry on the state Supreme Court in the late 1950’s and whom Abraham Lincoln later named to the U.S. Supreme Court.  Thirty years after the fatal duel with Broderick, an armed Terry confronted Justice Field and was killed by Field’s bodyguard.  The bodyguard was tried on homicide charges and acquitted.  In the Northeast, lives and deaths like Terry’s were nearly nonexistent.  Such violent lives, lived by men who enjoyed substantial political and legal power, could happen only in a society that ssumed even the most serious wrongs would be handled not by governments and legal procedures but by individuals protecting their honor.

Yeah … well, if you’ve even been to, say, Afghanistan, you can get a good taste of precisely what this kind of honor-protecting murderous existence is like in modern times.  I like the romanticized hyper-masculine world of Westerns as much as much as anybody, and think there’s something important we’ve lost in the taming of the West and the domestication of its men.  But there was also plenty gained, and so I’ll still side nudge slightly away from anarchy and towards statism by admitting my preference for the handling of these matters by governments.  Also, I don’t have a bodyguard, and am not as quick a draw as I used to be.

The chapter concludes with the familiar and irreconcilable debates on the appropriate extent of the right of self-defense – debates that continue to be fought just as passionately to this very day, for example, in the infamous Bernie Goetz case and also as recently observed in the whole Trayvon Martin-George Zimmerman fiasco.

As is still the case today, there was a substantive and highly regional difference of opinion on whether the appropriate doctrine was the ‘retreat rule‘ or the alternative which was called the very macho-sounding ‘true-man doctrine’ which today survives in ‘stand-your-ground laws‘ and in the ‘castle doctrine‘.  I think it would have been more strategic had the proponents of these doctrines kept the older terminology – it’s pretty hard for a candidate to appear tough and manly while arguing in favor of ‘retreat’ and against being a ‘true-man’.

The retreat rule held that the victim’s flight was preferable to the assailant’s death.  The true-man doctrine held otherwise: victims of assault could defend their honor whether or not they could safely retreat.

The debate never ends, because it can’t: there is no stable balance between conflicting values.  The Northeast required retreat, the South and West favored true-men.  As a Missouri court put it:

It is true, human life is sacred, but so is human liberty.  One is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist … [No] man, because he is the physical inferior of another … is …. bound to submit to a public horsewhipping.  We hold it a necessary self-defense to resist, resent, and prevent such humiliating indignity … and that, if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity.

This split is important when it comes to evaluating historical homicide and acquittal data because, until fairly recently, fist fights and other forms of assault and battery were much less deterred and thus exceedingly common.  So, if you notice a much higher ratio of acquittals for homicide in the South, you have to make sure to correct for major differences between regions in the prevailing legal doctrines, and also the less-than-perfect tendency of juries to scrupulously apply the retreat doctrine even when formally required (as in Chicago).  And this kind of analysis is very rarely done.

In fact, Stuntz ends the chapter by stating a fact that tends to undermine his broader argument:

… especially at a time when a large fraction of homicides arose from bar fights that spun out of control.

I submit that this is a key admission that argues against extending the policies of that time period to our current era.  This is simply not at all descriptive of the origin of most of our homicides today, and this difference makes the two periods practically incommensurable.

VI. A Culture War And Its Aftermath

The chapter opens with a poem I thought worthy of reproduction:

Prohibition in an awful flop.
We like it.
It can’t stop what it’s meant to stop.
We like it.
It’s left a trail of graft and slime
It don’t prohibit worth a dime
It’s filled our land with vice and crime,
Nevertheless, we’re for it.
Franklin Pierce Adams, New York World (1931)

The progressive era opened with an intense and moralistic enthusiasm – really a kind of utopian religious zeal – for the radical, reformative, and rationalistic reconstruction and the uplift of practically every facet of society.  I think it’s difficult to overstate their justifiable perceptions of the dizzying and accelerating pace of change in the pattern and experience of life, and of the limitless possibilities that the continuation of that trend seemed to promise.

Consider two sets of snapshots spanning a generation and compare each final year with each first for a sense of ‘drama’ and ‘upheaval’ and the ‘shock’ an average resident of the beginning year would experience if suddenly transported to the end of the period.  Which is more radically transformative: 1890-1925 or 1975-2010?  I’d argue for the former over the latter.  We got the internet and smartphones, and sure, they’re pretty cool, but they got all the building blocks of modernity, which was a genuine and continuous rolling revolution.

The sense of the time was that they had entered a completely new kind of modern era, with almost indigestibly rapid expansions of inventions, technological capability, and economic and cultural potentials, with almost no foreseeable limit.  The progressive spirit was to look at the entire variety of ancient and emerging social issues as mere technical problems that were now newly amenable to amelioration and even permanent solution.  Everything was up for grabs; everything could now be perfected, planned, engineered, and organized according to ‘scientific’ principles – even man himself.

Which meant that everything inherited from the past – wisdom, religions, traditions, laws, constitutions, literature, art, institutions, and so forth, was all, at least potentially, obsolete and anachronistic to perpetuate.  And, naturally, any loyalty to these antiques without an appreciation of their original functions and lack of continued justification in entirely different circumstances represented a frustrating and reactionary source of pointless hindrance and irrationally stubborn resistance on the way to building the New Jerusalem with New Men to live in it.

If an old fence stood in the way, it may have served a purpose in its day, but since the way was true, the barrier was almost certainly outdated.  The relic was the result of some unfortunate but unavoidable compromise between our highest ideals and the tragic reality of a humanity burdened by severely limited knowledge, power, and resources, and which forced a barely-tolerated acquiescence to social conditions which offended the moral sensibilities of the community.  Slavery itself was once one of those conditions, and the war to abolish it was born, in part, out of the collapse of whatever case might have existed for the necessity of its preservation.

But now, relieved of all those burdens, and empowered by their new, potentially limitless capabilities and mastery over nature, nothing was potentially out of reach, and the pent-up energies wishing to implement the ideals of the age by whatever means possible were enthusiastically unleashed from their ancient tethers.  And their prime targets were poverty and vice.

And, if there’s still too much vice, and you’ve exhausted all the cultural ways of moderating its occurrence, then the obvious way to make progress is to declare vice a crime, wear the ring of power, and deploy the mighty force of the federal government – which now generated more eager excitement instead of the antiquated cautious skepticism – to simply stamp it out.

Between the late 1870’s and 1933, America’s criminal justice system fought a series of cultural battles in which the criminal law – especially federal criminal law – was a key weapon: against polygamy, state lotteries … prostitution, various forms of opium, and last but definitely not least, alcoholic drink.  Taken together, these legal battles constituted a two-generation culture war, akin to the cultural battles over drug use, abortion, and gay rights in our own time.  The earlier culture war transformed both the law and politics of crime.

… Where constitutional limits seemed to bar exercising federal power over traditionally local issues, Congress and the courts evaded those limits.  Where a straightforward definition of the conduct Congress sought to criminalize would leave federal prosecutors hard-pressed to win convictions, the relevant crimes were defined more broadly to make convictions more easily won.

… Gradually, American criminal law ceased to define the confuct and intent that prosecutors actually sought to punish, and instead treated crime definition as a means of facilitating arrests, prosecutions, and convictions.

Stuntz, in his quest to support more localism, has to contend with and explain the death of federalism as a casualty of the Civil War.

Localists note that giving different states or territories the power to choose their own rules maximizes the number of people who live under rules their find congenial.  Nationalists answer that localism ignores the moral character of the relevant rules.

…Douglas-style live-and-let-live federalism seems an appropriate approach to the issues such offenses raise.  Yet there too, Douglasite localism lost out to Lincolnian nationalism.  Why?  [NB: Not, apparently, ‘because he won the war’]

The short answer is this: because voters care about the rules that govern people who live in other jurisdictions.  Abortion opponents seek more than abortion bans in their own states; they also oppose pro-choice laws in other states.  The same is true in the other direction: pro-choice voters want pro-choice laws nationwide, not just for themselves. … That instinct was the Achilles’ heel of Stephen Douglas’ defense of popular sovereignty, under which voters in territories could decide whether to allow slaveowning in their midst.  Lincoln called it Douglas’ ‘don’t care’ policy.  But enough voters did care …

A century ago on a range of issues from lotteries to liquor, from polygamy to prostitution, Lincolnian moral nationalism consistently prevailed over Douglasite federalism. … Moral issues go national: they migrate up the sovereignty ladder rather than holding steady on one of the lower rungs.

A national media probably had something to do with that, but it all sounds so familiar somehow.  And what are the imperatives of today’s moral nationalism?  And what will they be tomorrow?  For what lives on crusades must always be foraging for some new crusade.

It is in the nature of American law that key and transformative Constitutional holdings often arise out of petty and bizarre cases of seemingly little consequence or significance.  The nationalization of crime was just such a transformation, and Stunz lays out the details of the mildly amusing case of Champion v. Ames (1903), a case about a law which tried to regulate the Louisiana lottery out of existence, and which ended up redefining American federalism.

Specifically, it held that Congress’ anti-lottery law fell within the scope of the Constitution’s infamous interstate commerce clause, which has, in the last 111 years been used as the exception to the principles of limited government that has completely swallowed the rule, and, indeed, has made an utter mockery of it.  The ‘rule’, in this case, is the rest the Constitution, especially Article I.  And, since Wickard (1942) no one has been able to articulate any coherent limiting principle to the doctrine.  Congress can pretty much do whatever it wants to anybody with both its taxation power and its commerce-clause-enabled plenary authority, and you can count the number of times a crime-related law has been invalidated for lacking some plausible link to the doctrine on one hand.

The requirements that Congress restrict criminal statutes’ scope to foreign and interstate commerce was formal, not functional.  So long as something or someone had crossed a state or national border, federal power to punish crime was essentially automatic.

So, as for federal regulation of the vices: for sex, it was the Mann Act.  For drugs, the Harrison Act.  But for alcohol the situation was different because it never had to leave the state of its manufacture before it was consumed.  And it could be easily smuggled across state lines if even one state abstained from getting on the temperance bandwagon, which is precisely what occurred when several forward leaning states attempted to implement the ban on their own.  The only legal solution seen at the time was Prohibition.  Today, no such amendment would be thought necessary, especially after Gonzales v. Raich (2005).

Raich was a grown-and-consumed-locally marijuana case, but ironically, and without any change in the law, the federal government now sees fit to use its claimed powers of ‘discretion’ to indulge a bit more federalism and localism by refraining from prosecuting individuals who violate federal law in states that have recently decriminalized the recreational use of cannabis.

See, when progressives get stuck with federal policies they don’t like and don’t have the political means to change, all of a sudden the die-hard nationalists become dyed-in-the-wool federalists.  It’s almost like ideological advocates will just make use of whatever legal doctrines are most convenient to their agenda at the time, and then seamlessly extol the very opposite doctrines when the circumstances change, and that few people really care about ‘loyalty’ to the ‘truth’ or ‘superiority’ of these abstract notions.  Nah, clearly I’m being much too cynical.

Anyway, back to prohibition.  Stuntz actually has a lot of positive things to say about the lasting social consequences of ‘the noble experiment’ that contradict the typical narrative, but he also fairly describes the dark side of black markets for contraband.  Remarkably, he once again dives in the into well-explored progressive territory of class distinctions to once again calmly suggest that a sacred position should come up for reconsideration.

The market in which poor customers participated attracted a good deal of law enforcement attention.  The market used by wealthier drinkers, much less so.  This class bias was no new phenomenon; it was and is a common feature of vice markets: wealthier customers pay for more discreet forms of the relevant vices and hence bear less risk of arrest and prosecution than their poorer counterparts. … At first blush, that is no bad thing. [emphasis added]

Wait, what?  Who gave the reactionary a spot teaching at Harvard Law?  Where’s he going with this?  Well, he seems to be setting up the strongest version of the argument in order to knock it down later, a technique the extraordinary Scott Alexander calls ‘steelmanning‘.

Poverty, violence, addition, domestic abuse – all are the common side effects of lower-class vice markets.  Such collateral damage is less prevalent among upper-class customers, whole wealth gives them a greater margin for error, a capacity to live dissipated lives without disastrous consequences.  If crack markets caused more social hard than markets for cocaine powder, one might suppose, those who trade in the more dangerous drug market should be punished more consistently and more severely than participants in the more benign market.  If working-class consumption of alcohol caused more deprivation and violence than upscale consumption, punishing the former while giving the latter a pass seems more an instance of wise social policy than discriminatory enforcement.

But that policy is, and was, at war with itself.

But then, Stuntz then goes on to give a surprisingly brief and shockingly weak case for such a war, which really makes one wonder what he really thought about this argument.  That he would leave such a case mostly unscathed by counterargument is especially intriguing because the crack-cocaine punishment split has been, for my entire life, a constant and passionate agitation for the progressives, a casus belli and a war cry, and which culminated after years of advocacy and effort in President Obama’s signing of the 2010 Fair Sentencing Act.

The next few sections of the history which followed the repeal of prohibition and proceeding into the McCarthy era probably represent the nadir of quality in terms of the book’s content.  This is fortunately mostly peripheral to its larger themes, but it still gets a lot of the historical details wrong, and introduces some truly bizarre interpretations.  An example:

Before the hearings conducted by the Senate Rackets Committee in 1959, Robert Kennedy was an anonymous [emphasis added] Senate staffer, best known as the younger brother of the junior Senator from Massachusetts.

If you think RFK was some mere ‘anonymous’ staffer as late as 1959, I’ve got a bridge I’d like to sell you.

The point Stuntz is trying to make with his warped narrative, however, is that the focus of national attention really were changing in the post-war era of Hoover, the FBI, and the federal initiatives against the mob, organized crime, and the various leftist radical groups (e.g.) whose memberships exploded when the baby boomers came of age.  Particularly important was the vast media attention (especially of the broadcast television news variety) which was lavished upon these efforts, and the political opportunities implied by all that free press.

The public choice incentives thus became warped.  The traditional alignment of interests and priories of voters with political officials was affected by simple the simple means of democratic-accountability, back when that kind of thing was still possible.  The achievement by elected law enforcement officials of establishing safety, security, and public order in their local jurisdictions would typically generate all the popular support they needed to win elections.

But the new element of television media sensationalism meant that there was an alternative and glamorous path to popularity and political fortune which was detached from the accomplishment of those mundane objectives.  In addition, for a brief period prior to the chaos of the 60’s, and excepting the exaggerated contribution of organized crime (which was, at any rate, concentrated in just a few urban areas), the post-war scene was especially secure and orderly with violent crime levels approaching their historical lows.

The public feeling of safety, their new lack of interest (because lack of fear) in ‘ordinary crime’, and the law of diminishing returns meant very little political hay could be made by mere maintenance or any effort to improve local crime statistics.

Some political hay could be made on the other side of the coin, by arguing for more leniency, ‘enlightened’ approaches to crime, and fairer procedures that would mitigate racist discrimination that persisted in the South.  And due in part to that vigorous advocacy, all of these proposals were in fact implemented.

But Stuntz argues that ambitious and clever politicians tried to turn crime into a moral-nationalist issue, so that they could win votes in their own peaceful jurisdiction by polemicizing against crime in completely different localities with which they had nothing to do.  So, according to this story, politicians were exploiting the media environment to encourage white voters in peaceful suburbs to discover their inner moral busybody, by which they start ‘making the rules’ and ‘controlling’ the black inhabitants of black-crime-plagued communities, with which they had nothing to do, and so which layed outside the domain of their proper interests.

Again, Stuntz is trying to convince us that those black inhabitants should have much more independent, local control over criminal law in their own areas, and this because he expects that such control will yield a much lower number of incarcerations, one way or another, and regardless of the incongruence of the resultant numbers with those that would be required by adherence to the formal law.  And that means convincing those equality-obsessed white people to not poke their nose in (which was ‘good’ when Yankee progressives did in the South, but is now ‘bad’) and instead butt-out.

There are four serious problems with this theory.

First, as mentioned above, is that crime in black neighborhoods is not, in fact, ‘nobody’s business but theirs’.  There are all kinds of externalities.  Criminals and their customers and suppliers are very mobile in this day and age.  And city spaces – especially in the urban core – are shared by workers, university students, tourists, and commuters who must suffer the risk of violation for at least part of every weekday.  Also, some crimes like homicide may be geographically concentrated, but other, like larceny and burglary, are much less so.  Yes, crime is prosecuted where it occurs, but the message of deterrence is more salient when punishments are issued from within one’s home-base community, and distant victims still have an legitimate interest in local enforcement.

Second, communities are far from static, and people in a highly mobile society have all kinds of forward-looking future interests in what happens elsewhere.  Stuntz elides the timing and causation of white flight from the urban core to the suburbs and their replacement in some neighborhoods by new black arrivals.  If whites want to reverse the abandonment of some of these areas, move back into the city center, and gentrify those communities, then they need someone to first clean up the horrendous crime problems.  Whether or not this is a ‘legitimate’ interest, or at least valid enough to warrant ‘outside’ ‘interference’ is a matter of some current debate, but it’s not an issue that can be quickly dismissed as unsubstantial.

Third, the flip side of racial or class solidarity with, or animus against, a defendant is the same set of biases directed at the victims of crime.  The criticism of the demonic-archetype Jim-Crow-South jury is that, with an all white jury, if the defendant was black and the victim was white, the accused stood no chance.  If the defendant was white and the victim was black, the accused was in no peril at all, and the victim would receive no justice.

Stuntz’s proposal for local control makes it highly probable that most jury members and defendants in crime-plagued areas will be black, but it does nothing to guarantee the race of the victim, which gives rise to some ugly possibilities that, alas, can hardly be dismissed in this day and age.

It’s one thing to let a neighbor-defendant go free out of mercy, or a perception that the crime was always a ‘foreign’ imposition with no local support, or otherwise of minor importance and nonthreatening to the safety of the local community.  It’s another thing entirely to let a dangerous man, clearly guilty of a violent crime, go free because he is similar to you in most respects, whereas ‘that rich white bitch had it coming’.

Don’t fool yourself – this is a real problem.  Vast cultural distance enables one to dehumanize a victim as belonging to a privileged class of people who are demonized as oppressive hate figures in your own community.  This is a view that is actively promoted by certain broader political movements, and furthered by the prevalence of wicked cultural messages that encourage precisely this kind of vicious resentment.  Is the knockout game real, or isn’t it?  It is.  And the Polar Bear sits on the tip of a vile and massive iceberg.

Remember, you only need one person to think this way to set a thug free.  That this is an uncomfortable and inconvenient topic does not mean it is not a real prospect or should not be carefully considered.  Just because there has been a reversal in the narrative’s skin colors does not mean the problems with Jim Crow juries have gone away.

And finally, fourth, if those white suburbanites did control the administration of criminal justice in the ghettos, and if they were so obsessed with keeping it down, then why in the world did they allow it to absolutely explode over the next two decades without expressing constant outrage at the Warren Court’s activism?  A mystery.

VII. Constitutional Law’s Rise

Stuntz spends the next chapter briefly telling the story of the line of landmark Supreme Court cases – many from the Warren Court – and the legal and intellectual history which forever reshaped the modern field of criminal jurisprudence and which forms the basis of much of what is taught in law school in Criminal Procedure.  Everything from Mapp (1961) to Miranda (1966) and beyond.

And Stuntz’s main accusation against this history is that the Court focused on procedural, instead of substantive rights.  I’ll do a disservice to the complex legal concepts and say that if you were to try and summarize the main difference between the concepts in this context, it would be in the focus on merely policing the rules of the game – remaining indifferent to the results so long as the games were fairly played – as opposed to requiring certain kinds of results to emerge from the games, without ‘fair play’ being a defense to missing the target.

The target itself – usually ‘equality’ –  is presumed to be ‘just’, and any deviation from it must originate in some kind of hidden injustice somewhere.  So lady justice must raise her blindfold and put her thumb on the scales to balance the pans across the fulcrum.

An analogy could be drawn between a single, individualized discrimination case, which requires evidence of motive and specific intent on the part of the accused against the victim, and a disparate impact case, which is able to proceed on a purely-quantitative analysis of aggregate statistics, without having to show any intention of purposeful discrimination, and giving rise to liability even if produced inadvertently, discrepancies from the legal quota requirement being effectively suspect per se in practice (if not in formal law).

In the history of American law, procedural due process is universally accepted as core doctrine, even if there is a good about of debate on its proper scope and content.  But substantive due process is very controversial, and particularly despised by conservatives, originalists, and federalists, who claim that activist progressive jurists have abused the doctrine to accomplish all sorts of insidious mischief while acting as a ‘super-legislature‘.

Stuntz takes the preceding 215 pages to finally say that he would have preferred it had the Supreme Court sided with substantive / disparate-impact side of the law.  He says that equal representation and racial balance in prosecutions and incarcerations could be viewed as a substantive due process right, and the Court could police that right and get the numbers to work out the way he wants, regardless of the rate of disparities in criminality.  Combined with his proposal for local control and the prospect of racial solidarity acquittals, and if implemented, it would be a pretty effective way to open the prison gates very, very wide.

VIII. Earl Warren’s Errors

To support his call for substantive rights, Stuntz unleashes against what he sees as the great blunder of the procedural rights revolution which occurred primarily during the tenure of Chief Justice Earl Warren.  Warren, like his friend Dwight Eisenhower, was nominally a ‘Republican’ but during the height of the progressive and New Deal eras, and so that label meant almost nothing that would be considered familiar today.

Warren was a Republican in the same way that former New York City mayor Michael Bloomberg was a Republican – purely as an expedient to getting elected given the current political landscape. Most nationally-prominent Republicans identified as ‘progressives’ in the ‘supports the process of modernizing society’ sense that had become so popular, and that was plausibly viewed as coterminous with ‘supports good government’ in a way they thought transcended mere politics.

Politics was confusing and often dirty at the time, with Warren able to use cross-filing rules to run on the Republican, Democrat, and Progressive tickets, and by this means having won reelection as Governor of California in 1946 with nearly 92% of the vote.  That’s more support than corrupt tyrants even pretend to get in their rigged elections.  And just try to imagine getting 92% of Californians to agree on anything, ever, let along their top elected official, without a whole lot of shenanigans at work behind the scenes.  But that’s the way it was back then.

Briefly, the Warren Court imposed a whole suite of onerous procedural requirements on police and trial processes to try and build a more ‘enlightened’ justice system and to remedy the perceived abuses of police power – most especially the ones having a racial motive.

In the short run, the Court’s rulings made criminal law enforcement and litigation more expensive, which meant even less criminal punishment … and (probably) still more crime [during a crime wave]…. Plus, the procedure-focused character of the Court’s decisions made them east to attack once voters demanded tougher law enforcement practices: it is one thing to overturn convictions of defendants who may well be innocent, quite another to reverse otherwise valid convictions based on one or another procedural error. [emphasis added].

… The defense lawyers who enforced those rights were not bringing forward evidence of their clients’ innocence but [using the new procedural protections] suppressing evidence of their guilt.  Whatever their other merits, such practices were bound to make the justice system do a worse job of separating those defendants who deserve punishment from those who don’t – it’s central task.

… Warren and his colleagues continued and exacerbated a long-term trend: they proceduralized criminal litigation, siphoning the time of attorneys and judges away from the question of the defendant’s guilt or innocence and towards the process by which the defendant was arrested, tried, and convicted.

Ah, but who ‘deserves punishment’?  I agree wholeheartedly with Stuntz’s criticism, but it’s a bit hypocritical coming from a guy who is trying to get a lot of punishment of fully ‘deserving’ criminals off the hook if they live in black neighborhoods, for the same actions that would cause other people in other neighborhoods to be punished.

Stuntz is reluctant to say that this ’caused’ crime to explode (and that reluctance is notable in itself), so he says it was a mistake for the Warren Court to make prosecution more difficult while simultaneously, for some other mysterious reason, crime was exploding.  He calls this a ‘political error of the first order’.

But I think you have to admit, it’s an odd theory of Constitutional jurisprudence that says that Justices should make decisions not about what the Constitution means and requires – whatever the nature of contemporary events, and whatever the political costs (the protection against which is the justification of their life tenure) – and instead should act as wise legislators, weighing the needs and conditions of the time to craft appropriate public policy as they see fit, abusing their power to interpret law, and using the words of the Constitution as cover.  Actually, not that odd a theory at all these days, alas.

The result of that explosion in crime was a public backlash and an opportunity for those pesky politicians (he particular has it in for that horrible Ronald Reagan) to ‘exploit’ the situation by – are you ready for this shock – actually campaigning on the platform of getting tough on crime.  Reagan, 1966, running for Governor of California nearly half a century ago:

Our city streets are jungle paths after dark … With all our science and sophistication … the jungle is still waiting to take over.  The man with the badge holds it back.

That scoundrel!  And ‘jungle’?  Not just a metaphor for anarchic brutality but clearly one of those famous racial code words.  The voters were, of course, utterly helpless in the face of such sinister, exploitative manipulations.  They supported it wholeheartedly.

Stuntz says the tought-on-crime rhetoric was all talk:

California’s imprisonment rate fell by nearly half during Reagan’s two terms in Sacramento.  Alabama’s imprisonment rate did likewise under Wallace. … Their tough rhetoric was just that: rhetoric.

No.  Not even close, and Stuntz knows it.  Imprisonment rates fell because the courts made them fall, and Governors were powerless to do anything about it, even though they were doing everything that was still within their authority to raise imprisonment rates in the midst of a terrifying and continuous crime wave.

He then claims that since ‘tough-on-crime’ rhetoric is a winner politically – especially, you know, during things like horrendous crime waves – that progressives had no choice but to join in if they wanted to win elections.

When conservatives like Reagan, Wallace, and Richard Nixon won blue-collar white votes by attacking soft judges and (indirectly) black criminals, liberal politicians were forced to respond … Liberal Democratic presidential candidate Robert Kennedy made tough measures against urban disorder a centerpiece of his campaign for his party’s nomination.

It’s somewhat comical to imagine that these progressive politicians were practically forced against their will – contrary to their genuine views, ethical principles, and better judgment – to play to the crowd and, with extreme reluctance and a bitter taste in their mouths, actually propose to do anything politically about an out-of-control crime situation.  It’s a very revealing statement of the progressive mindset with regard to crime, and their sensitivity and qualms with regards to making anyone suffer, especially if they are from oppressed classes, and even when necessary and fully justified.  This feeling is so powerful that they were that close to committing political suicide and dragging the rest of the country along with them.

At any rate, if it is the information-environment of accurate media reporting on criminal activity that provokes the public and creates the political incentives which generate the ‘tougher-on-crime-than-thou’ arms race, then a ‘solution’ to this ‘problem’ is to … stop accurately covering crime.  Especially of the dog-bites-man variety, and most especially of that category of crime that is most likely to provoke the audience into political action.  And that would be the kind in which it is people just like them who are the victims.  The press, apparently, has learned this lesson all too well.

IX. The Rise And Fall Of Crime

IX.1. Tough On Crime

At any rate, Stuntz claims that a ‘bidding war’ ensured between politicians everywhere, with everyone from every party rushing to claim that they were ‘tougher than thou’, with legislators and the police despeartely throwing every possibly innovation they could think of at the courts and seeing which ones would make it through the gauntlet-run.

Gradually the courts, after seeing the hell-road their good intentions had paved, relented and started siding with the police and the law-and-order bar, and the politicians funneled large amounts of money and personnel into bringing the situation under control.  There was a political turn towards conservatives, and sentences were regularly increased in severity.  We built the Police State.  But, gradually, the prisons started to fill up.  And up, and up.

And then, finally, crime started going down.  And down, and down.

Stuntz is still stubbornly reluctant to affirm the Occam’s Razor explanation and the obvious the theory of causation.  It’s the opposite of the post hoc ergo propter hoc fallacy. What came after was merely coincidental with what came before, not consequential.  Instead of ‘because’ he proposes ‘while’.  Imprisonment went down while crime went up, and then imprisonment increased while crime went down.  Quite the coincidence!  Then again, he’s hardly alone.

Crime’s decline is one of the great mysteries of the 1990’s … No one predicted [it], and the usual theories – better policing, tougher sentences, lower unemployment – don’t seem to explain it fully.  – Robert Samuelson, Newsweek (1999)

Actually Bob, they really do.  Stuntz claims this is partly due to the smart application of ‘soft power’ which was implemented shortly after the drop in crime began.

If backed up with enough personnel, the softer forms of policing work: they tame urban crime to a degree no one thought possible only a short time ago.

Well, the logical leap is attributing this taming to the moderate changes in policing instead of the massive changes in incarceration.  One could look for the trend discontinuities in the local rates of crime and compare them to the national trend and the time when community policing was locally implemented, and my guess is that you won’t find much support there.

But Stuntz sings the chorus against the incarceration-explanation too:

Add it all up, and the picture is quite different than the conventional wisdom allows.  We do indeed have a massive, bloated prison population, the criminal justice crisis of our age.  But the justice system that produced that population is not hard-wired to punish excessively … Likewise, the crime drop of the 1990s is not evidence that the system works as it should.  More the opposite: even after that crime drop, the nation’s bloated prison population coincides with rates of urban violence that, a half-century ago, would have seemed intolerable outside the South.

Wait, I’m confused.  Is this an argument for less incarceration, or for more?  If our society, for whatever mysterious and unfortunate reasons, is an order of magnitude more prone to violent criminality than it was in past – something which Stunz himself conceded and which I pointed out above – then doesn’t it stand to reason that we would require an order of magnitude more policing and imprisonment?  I guess not – we’re clearly just ‘bloated’.

IX.2. Paying For Prison

Stuntz blames part of that ‘bloat’ on political incentives and economics.

The second cause has to do with the politics of budgets, which gave local prosecutors every incentive to send as many defendants as possible to ever-more-swollen state penitentiaries.  States pay for those penitentiaries, but local officials-chiefly prosecutors and trial judges-make the decisions that fill them.  To the local voters who elect those officials, and hence to the officials they elect, prison sentences are nearly a free good.  Meanwhile, local governments, not states, pay more than 90 percent of the tab for the local police forces that are responsible for the overwhelming majority of street-level law enforcement.  Policing and imprisonment are substitutes: they are the two main ways governments spend money to battle crime, and historically, more of one tends to mean less of the other.  One of these alternatives is heavily subsidized; the other isn’t.

This isn’t quite true because money turns out to be fungible, and policing and incarceration aren’t perfect substitutes (you won’t get very far with absurdities like all policing but no prison, or all incarceration but no arrests) – so there is an optimal balance of the two for any allocation of resources.  If you lower the price of one good in a package, then there are income and substitution effects to consider, but in general economically rational actors will take any particular subsidy and just reallocate the rest of their budget to remain near the same optimal balance.  If you were to switch the subsidy from prison to policing, but keep the overall available security budget constant, then certainly there will be a rebalancing in favor of policing and away from prison, but the overall effect is usually less dramatic than one might think.

Also, if new funds become available, it is easy to quickly adjust the amount of policing or the penalties for particular criminal violations, but it is illegal to lengthen prison sentences which one set shorter than normal during a period of tight budget circumstances.

The problem, Stuntz says, is that while prison is indeed expensive, it’s still too affordable for the largest entities that bear most of the burden – the states and the federal government – to create any beneficially compelling pressure to reduce incarcerations:

… corrections budgets amounted to a mere 2.6 percent of state spending nationwide.  That is one-fifth of state expenditures on education, barely half what state governments spend on health care [and just wait! -ed] or highways.  Cities’ and counties’ spending on local jails amounted to even less: only 1.6 percent of local budgets.  Federal spending on federal prisons was smaller still: less than three-tenths of 1 percent of overall federal spending…

If, however, you were to dump the numerator of all this cost on the tiny denominator of some poor community’s budget, then those percentages would rise into the danger zone and the decision to throw the marginal criminal in jail would be a much more difficult one.

But the broader question is what is the wisest distribution of the burden for paying for security.  Progressives are usually in favor of spreading the burden around as widely as possible, and especially in favor of insuring that resources are redistributed from the haves to the have-nots, and from the fortunate to the unlucky, assessed by progressive (naturally) tax rates.

If the subject is, say, education, then there is no question in their minds that the state and federal governments – and the rich in general – should pick up as much as the tab as possible to help some poor community pay for what is clearly a traditionally local function and responsibility.  Indeed, while they were unable to do so at the federal level, the progressives have amended many state constitutions and used the state courts to make such redistributions mandatory.

But suddenly Stuntz wants some poor, crime-plagued community to be entirely on the hook for the cost of incarcerating their prisoners, and the rest of the evil, wealthy white suburbanite taxpayers to get off scot free.

Personally, I think they should pitch in even more – but they should also have whatever control and legal authority is required to use that money to actually accomplish the job of public safety, instead of constantly stopping short because some judge once said so.  You might say I favor ‘redistribution of order’ or ‘equality of security’, as a prerequisite for pursuing any other kind of social initiatives.  I think the first priority should be to make sure that the writ of the law extends to every single parcel of a supposedly first-world country, and that everybody deserves to live free of crime, free of fear.  I’m told that makes me some kind of fascist radical, but perhaps I was just born too late, because these sorts of opinions used to be commonly held.  But you know, ‘progress’, and all that.

So, Stuntz thinks that switching the subsidy will lead to a rebalancing in favor of policing, and he is very enthusiastic about the potential of more emphasis on an updated version of old-school ‘community policing’.  But mostly he wants the cost of incarceration to overwhelm low-income neighborhoods and municipalities so that they simply cannot afford to send anyone but the worst of the worst to jail – even if things deteriorate and they are utterly desperate and really want to lock up more thugs.  Meanwhile, relieved of the burden of having to pay to incarcerate the felons from other areas, more well-off communities can now afford to throw even the most marginal of violators into the clink.  That strategy seems more than a little perverse.

IX.3.  Making Prison Hard To Pay For – The Example Of Capital Punishment

And speaking of perverse, there is also a perverse incentive to go farther and not only take away the prison subsidy but actively try and make imprisoning criminals much more expensive than it needs to be, in order to further put pressure on poor communities to reduce their prosecutions even below the bare minimum.

You could make it difficult, costly, and time-consuming to build new prison capacity – special environmental impact statements and community comments periods are very useful in this regard.  You could try and prohibit the use of cheaper, privately-managed facilities, or ‘outsourcing’ of prisoners to cheaper locations – even make such an industry a politicized hate-object.  You could require all manner of expensive services to be made available to prisoners, and also overburden facilities with mandates with which it is costly to comply.  And don’t forget the unions just ‘forcing’ you to pay certain employees and countless layers of administration a fortune!

All of these strategies and more have been pursued by progressives in the legislatures and the courts, and all of a sudden the cost of an inmate-year in California is beyond astronomical – $60,000 annually.  State-level authorities, perhaps, sometimes, maybe have what it takes politically to make an organized counterattack against this kind of insanity.  But that is definitely a hopeless task for some impoverished and crime-plagued municipality with no tax base and which already, like Detroit, can barely afford to deliver basic services, let alone pay for trials and hotel-rate prisons too.

If you want to see what the real collapse of American criminal justice, indeed, all law enforcement, looks like – or you’ve ever hoped to watch a live-action version of Mad Max Beyond Thunderdome – then just wait until this great idea is implemented.

The situation is completely analogous to both the tactics often used by lawyers to drive up the cost of litigation for the other side as a deterrent, and also what has occurred in the case of capital punishment.  An extremely common argument against the death penalty in America is that, while it was until fairly recently in our history identical in cost to conducting any major felony trial, it is nowadays enormously expensive and time-consuming for the state to pursue a case with that punishment in mind.

And this is perfectly true, but the key questions are: how did it get that way, why is it so expensive, is the expense imposed a fair value for which we derive some comparable procedural benefit – or is it just spinning our wheels, can the expense be reduced significantly, and does it make practical and moral sense to scrutinize an execution case so much more strictly for error than a life-without-parole case?

Addressing those question are beyond the scope of this essay, but part of the answer is that those costs were inflated disingenuously and deliberately as part of a strategy by opponents of capital-punishment, who were indifferent to the actual benefits of the additional requirements, in order to generate this very disincentive to the process.  It was also done to make this very argument possible for people who want the cover of being able to point to a ‘rational’ and ‘objective’ reason to explain their position.  It is that same ‘starve-the-beast’ strategy, and those same opponents will therefore never let the cost go down.

The logical problem is this.  The reason Life Without Parole is so much cheaper is because it does not require any of those additional time-and-resource consuming processes.  It is bizarre to say it is worth spending another million dollars to make sure someone is not innocent if we are going to execute him, but that we should be indifferent to the results of that additional scrutiny, (which we are now never going to conduct), so long as we are simply going to lock up that potentially innocent man until he dies in his cell.

The case has to rely on the assumption that, while spending much less money, and avoiding the cost of those extra court processes, that the simple fact of extra time will yield the possibility of an occasional genuine (i.e. not ‘technical’) exoneration of a LWOP inmate who otherwise would have been executed, in a way similar to the way extra time was on the side of those exonerated from the false-rape-claims mentioned above.

But there doesn’t seem to be any support for that position at all, especially for the most recent crimes which were committed in the modern era of powerful forensics.

Instead, we almost always lock ’em up, throw away the key, and forget about them, and it does indeed save us money.  But how good should we feel about that?  If our concern for the innocent justifies spending the extra money, then we should be doing it here too.  And if spending the extra money doesn’t help us identify the innocent, we shouldn’t have to do it just because it’s a capital case.

I probably sound like a capital punishment booster here, but I’m not.  I’m just using it as an example to make a point.  I really have no problem with people who are against the death penalty and admit it is simply a moral or religious preference.  I respect such people and I really don’t mean to offend anybody or criticize anyone’s views.

However, I suspect the cost argument to be a case of cover-signalling since I’ve never heard a person making this case say, “Well, yes, I’m against the death penalty because the expected short terms costs are $300,000 more than LWOP.  But, if those costs were only, say, $100K more, and the net present value definitely positive, then, sure, I’m all for it, go ahead.  Rational cost-benefit and all that.  It was that extra $200K that was keeping me on the fence when it came to matters of life and death.  It’s all just a matter of exchange rates, really.”

Now, I made up the numbers, but they don’t seem too implausible.  But, as we’ve seen, $300K only pays for five years more imprisonment in California, so the expected long term financial benefit in the above scenario is perhaps positive because we’ll probably execute the perp more than five years prior to the end of his natural life.  One of the perverse consequences of the successful effort that has made imprisonment so ludicrously expensive is that the financial case execution (if anyone actually believes in it, which I doubt), collapses and capital punishment necessarily starts to become much more attractive.

But the purpose of this controversial diversion is to illustrate the point that when political forces are arrayed against a particular kind of crime or punishment, when they can somehow affect the cost of pursuing those prosecutions and punishments, and when cost becomes a critical decision factor for cash-strapped local prosecutors, then those opponents are very likely to do whatever they can to manipulate the system costs.

They will endeavor to raise those costs to be as high as they can get them by whatever means necessary, without any genuine interest in the benefit of those additional requirements, yet still able to use the cover of the claim that they are just protecting the integrity of the process and taking care to identify potentially innocent defendants.   This is already a big problem in our system – a kind of exploit and failure mode which is in fact currently failing from being so exploited – and Stuntz’s proposal will only serve to its exacerbation.

IX.4. The War For The Power Of Discretion

Stuntz goes on to bemoan the gradual capture of the judge’s traditional powers over the disposition of trials by legislatures and prosecutors.  Criminal judges, especially at the state level, once has considerable leeway, flexibility, and discretion, not only in terms of sentencing and interpretation, but also in terms of developing the law of crime itself through the common law system of precedents and novel holdings in cases of first impression.

And while ordinary county judges are not insulated from politics, their state and federal Supreme Court bosses usually are, and, let’s be honest, 99% of voters these days don’t pay any attention to what the local judges are doing, or even know their names, and they have zero competence to be able to fairly evaluate a judge’s performance.  Again, judicial democracy is fraud of a sick joke and everybody knows it, but, also again, there are the considerations of ‘optics’ and ‘legitimacy’.  That effective insulation meant they could rise above the mob when the the horde pleaded – with their awful, mindless mob mouths – “Please sir, I want some more law enforcement and public order” – to which a judge could reply, aghast, “What?!”

But the state legislatures had the nerve to actually codify the law in statutes as opposed to the old ALIrestatements‘ so that it would be easily available and referenceable, even for people who weren’t criminal lawyers.  These codifications were also excruciatingly detailed and specific, leaving little wiggle room for a motivated jurist trying to find a creative way out of a jam.

Then the unthinkable happened, and the legislatures made a grab for the power to determine the severity of sentencing (which was mitigated to non-‘mandatory’ guidance recently by the holding in Booker (2005) ).  The history of sentencing reform and the establishment of guidelines at the federal and state levels is long and complicated, and there were multiple rationales.

But a primary motivation was a feeling that the judges had gone soft and were abusing their positions to push back against the laws they were sworn to uphold using the power of their discretion over sentencing as their primary method.  The accusation is that the judges were committing a breach of trust in the fulfillment of their traditional roles, and upending the law itself through unjustified acts of leniency.

Judicial discretion was granted in the hopes that judges would be like the ideal ones mentioned above (as as ‘God the Father’ is often described): judicious, wise, and reasonable; stern yet also merciful when warranted.  But discretion relies on a certain amount of ambiguity with regard to the law and a particular act’s consequences, and it is only a stable political institution when it isn’t prone to constant abuse and systematic biases which exploit that ambiguity to pursue impermissible agendas.

Judges were doing that routinely, people were fed up, and they reacted.  There are some lessons to be learned from that experience – for example about the real limits of power in a democracy – but one of them is absolutely not, “We should just give it all back to the judges so they can let more defendants go free again, because it worked so well last time.”  At least, not unless and until you’ve got some way to tell that it’s safe to trust the judges again, perhaps because the mechanism of their appointment selects for those least likely to intrude on the political process.  Just kidding.  Good luck with that.

Discretion is power, and power can be used or abused, in a way that is hard to supervise when deployed by legal specialists, regardless of whether it is held by a judge or a prosecutor or a legislature.  And it will inevitably and inescapably be held by someone, so the only question is, ‘by whom?’

In any contest for power in a system of law (that is, without using force) and which relies on human judgment (as opposed to being some kind of unalterable and automatic machine merely operated by human hands), some individual or group is inevitably the final arbiter of any particular dispute.

The legislatures tried to turn those judges into the hands that operated the machine the design of which they imagined they would control.  And while not entirely successful, the various state congresses did make great strides in this direction.  Combined with what Stuntz would call a cancerous corruption of the criminal law – endless new crimes and felonies with which to charge-stack, and rules that reduced the number of essential elements which made proving cases much easier – this effort, in actual practice, deposited much of the power of discretion in the hands of the much more politically sensitive prosecutors.

And, yes, that’s a big problem too, especially since most awful, abusive prosecutors will never be challenged for their abuses like the infamous Duke-Lacrosse-Case prosecutor Mike Nifong was when he happened to pick on some innocent defendants with the wherewithal and determination to resist his transgressions and expose his crimes during yet another false-rape-claim case.

But at least prosecutors can be held accountable, both to the law and to the voters, for malicious prosecution, (pursuing someone one shouldn’t).  And they occasionally are held to account, as Nifong was.  Whereas, on the flip-side of the coin (not pursuing a criminal whom one should prosecute) life-tenure judges are never held accountable to anyone when they make rules that unduly suppress or impede the execution of critical law enforcement functions.

And this was the problem.  Judges are insulated from politics, but they also bear no responsibility for the provision of law and order in the communities that bear the burden of hosting these criminals, and their insulation (or ‘privilege’ if you like) threatens to fester into a callous indifference to the real-world consequences of their decisions, which become subordinate to ideologically-motivated agendas.  Stuntz complains that prosecutors and politicians are two insulated from the life of the targets of law enforcement efforts, and from the communities in which they live.  But pro-defendant judges were also too insulated from the needs of the victims.

And that insulation nearly spelled their doom.  For a while, the popularity, credibility, and legitimacy of the courts in the public mind took a powerful hit.  And, making use of the opportunity this popular sentiment represented, the other players in the game responded in the only way permitted by the system: to radially warp and distort the traditional working of the system itself it order to overcome the bench.  My own view of things is that, especially at the highest levels, the trauma of the this war has made a deep impression on this generation of Justices, and they have resolved to keep their fingers closer to the pulse of public-opinion (wherever that comes from), are much more cautious about stepping too far out of its bounds, too often.

Again, we find that an arms race has delivered us into a mess of our own making, but out of which we have no idea on how to extricate ourselves.

But the mess might have some benefits, depending on your point of view.  Stuntz says that a result of this history is the rise of ‘textualism‘ in the field of jurisprudence, which has been vigorously advocated by conservative-minded legal organizations such as the Federalist Society.  He cites Scalia’s – the indisputable monarch of the movement – excellent and influential article, “The Rule of Law as a Law of Rules” as a exemplary exposition of the view of this type of legal formalism.

Stuntz hates it, of course, because textualism is necessarily a judicially constraining theory of jurisprudence, and Stuntz wants to expand the space of judicial decision making because he expects his allies on the bench will use it to launch a counterattack in the great war and let more black defendants go free.


On page 267, Stuntz finally gets to ‘Drugs (and Violence)’ and explains the heavy impact the drug war has had on our system of criminal justice.  That banning psychoactive substances creates black markets in contraband which inevitably gives rise to violent – almost paramilitary – criminal gangs who fight for turf and market share is no new insight.  That these gangs can effective take over neighborhoods and intimidate witnesses and juries is also nothing new.  This make cases hard to win if you don’t relax the rules which, naturally, we did.

But the fact the valuable quantities of drugs can be easily hidden in small spaces had created the need to work some interpretive molestation upon the Fourth Amendment’s rights against unreasonable searches and seizures, and the threat of terrorism would later make its own contributions.

But there is a much deeper and more sinister aspect to the drug issue that is both very complex and very dangerous to discuss openly.  It is indeed a dire problem on many levels.

The problem is that while ‘poverty’ does not cause crime, idle hands are the devil’s workshop, and a heavy-concentration of young men who are either not willing or able (or both) to hold down a job and get busy raising a family is a well-established recipe for disaster that was known to the ancients since time immemorial.  This problem exists in our pockets of crime, no one has any good and politically-palpable idea of what to do about it, and the accelerating three legged stool of immigration, automation, and globalization is making it increasingly worse.

Without employing some drastic measures that are incompatible with the current norms of our society – that we aren’t even allowed to talk about without severe social sanction because they are so taboo – this situation practically guarantees the generation of all sorts of criminal activity, for kicks and for cash.

If you are a police chief, prosecutor, or politician, then tou want to prevent crime, especially violent crime, and especially violent crimes like burglaries that will spill over into your wealthier, safer neighborhoods whose inhabitants can get you fired very quickly, but who also make excellent targets for theft, muggings, or aggravated robberies because, as with banks, that’s where the money is.

Or is it?  Because burglary is risky, and burglars don’t get rich.  But what if there were some alternative draw, some other – necessarily criminal – way of making vast sums of money – the stuff of a young thug’s dreams – and that particular way was demonstrably irrepressible no matter what you did, so it might as well be made useful.

What if, furthermore, it was glorified and celebrated endlessly by your young thug’s subculture?  And what if the violence that emerged out of that traffic – of a thing the sale, possession, and consumption of which arguably needs to be prohibited anyway – was almost entirely geographically contained in areas with zero political clout and mostly between the thugs themselves?

Why, it would act as an ideal honeypot!  Your thugs will all converge on conducting that particular species of crime, and you can easily arrest, prosecute, and imprison the worst of them and then incapacitate them for long-durations so that they can’t get up to any other (more politically destabilizing) kinds of criminal activity during their youthful years, which, again, you believe they are certain to do and which, really, can’t be prevented.

And this is how the drug war works.  There are very, very few people who actually, consciously think like this, putting all the pieces together into one extremely tragic but coherent picture.  But the glue that holds certain lasting social institutions together is often unconscious and buried beneath some protective psychological firewalls.

Stuntz says we use the drug war and the recent distortions to our criminal justice system that make conviction and incarceration too easy precisely in this manner.  They constitute a strategy – maybe the only possible strategy in the current political environment – to contain and control our problematic and crime-prone urban populations.  And, what’s worse, because of the lies and contradiction inherent in this system, brought about because it is caught in the crossfire of our ceaseless political conflicts, we don’t even do this well.  At all.

That is, we have done horrible violence – in skirmishes stretching over generations – to the integrity and humanity of our system because we refused to confront these dire problems in any other way.  This is repulsive, infuriating, and deeply, deeply depressing, but it’s not clear that it’s also not the least worst option we have.  And no one wants to go back to 1972.  Welcome to reality; sometimes it’s ugly and it sucks, but we have to live in it anyway.

XI. Final Thoughts

If you ask people about the ideal qualities of a criminal justice system they will likely respond in the same way.  We want a system that is humane, fair, just, accurate, cheap, efficient, quick, and effective at deterring, preventing, and punishing crime, so we can all live in peace and safety.  We want a system focused on collecting and presenting evidence for determinations of guilt or innocence, and not one where clever lawyers and their guilty clients triumph by spinning webs of sophistry concerning technicalities.  We want a system that respects our individual rights while achieving our collective social objectives.  We want judges to be tough yet also compassionate, and to fairly call balls and strikes while refraining from stepping up to the plate.

There are inherent trade-offs between these ideals, of course, so there is always going to be lots of disagreement on the proper balances and the most appropriate amounts of effort and resources to allocate to the overall objective.

But instead, we’ve made a huge mess of it all, for all the reasons described above, and many more related to our never-ending political and ideological disputes.  The sides have become entrenched in one giant, toxic quagmire, and we need to find a way out.  But there is no way out that we can all agree upon, and so we sink further and further into the quicksand pit of our own making.

And so, I can respect and admire Stuntz for his noble effort to propose a strategy to rescue us from own own disaster.

But that proposal is hopelessly flawed.

And the reason it is flawed, the reason so many of these proposals are flawed, the reason so much of our entire political and intellectual life is irredeemably flawed, is because of our undying and rabid obsession with race and racism.  Even though we knew better, we all hoped six years ago that this problem, this open, festering wound, was on its way to finally closing and healing.  Instead, it keeps splitting wider and the infection’s fever rises higher and higher.

Stuntz thinks we have far too many black men in jail.  He concedes that there will always be some disparity between the rates at which blacks are incarcerated and those of everybody else, because blacks commit much more crime.  But, he maintains, the numbers in jail are still far too high.

But in the whole book he never really proves that fundamental premise, or even bothers to try.  How do we know the rates are too high, instead of too low?  By what moral or empirical standard can we measure the ‘right’ amount of black imprisonment?  How is it possible to judge from numbers alone whether or not the incarcerations are necessary or deserved?

He never really tells us.  There is just some inchoate assumption, lurking in the background, casting a giant shadow over the whole enterprise of his work, and absolutely critical to providing Stuntz and all his allies with their animating motivation.

That assumption is that there simply must be a better, less harsh way of getting the business of law and order done.  That if you let, say, the least-worst bottom half of these characters go free, that somehow, things will work out better than they do now.  We’ll surely, somehow figure out what to do.  We’ve got the new, latest technique to try out, and we’ll do a better job this time, promise.

The assumption is that we don’t need to punish crime so severely in order to control it and provide for the public safety.

But this assumption, alas, is probably false.  Or if not exactly false, then mitigated by a requirement for some, as yet unknown and unproven yet equally effective substitute for the drug war and for incarceration.  And the development of these substitutes, whatever  they will turn out to be, will necessarily involve our finally facing our great, dire problems, somehow.

And it’s about time.  We have avoided facing those dire problems for generations now, and in innumerable ways.  But they are not going away, and if we cannot muster the intellectual courage to face them openly, then we are going to forsake many other things just as precious as the dream for a just and humane system of American Criminal Justice.

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Is, Ought, And The Elephant

A brief illustration:

A well-written, entertaining, and impressively comprehensive mini-book article from the web-journal “The New Atlantis” has been making the rounds lately, and I highly recommend it to you, “Do Elephants Have Souls?

Whatever you think about the topic, there is a treasure trove of fascinating trivia as well as an excellent collection of elephant-related literary commentary.

For example, did you know that Elephants commit suicide?  That they might be able to exchange infrasonics with Blue whales?  That they occasionally rape rhinoceroses, perhaps in part due to culling having , ‘…disrupted the transmission of elephant culture from one generation to the next.’?  (Don’t ask about human analogies).

Which justifies an obvious pun: this joke will only work if presented audibly, in a cockney accent:

A: Hey Costello, did you know that Elephants sometimes rape Rhinos?

C: No Abbott!  That’s shocking!  What happens when an Elephant rapes a Rhino?

A: Hell If I Know!

Of course, since the answer given by the article is essentially, ‘close enough’, a more honest title would have been, “Treat Elephants Better, You Evil Bastards!”

It’s a classic of moral persuasion in the field of humane-treatment of animals, somewhat reminiscent of David Foster Wallace’s ‘Consider The Lobster‘, but with a much more arguably deserving (and less tasty) subject.

First we are going to examine reality, and show you that that most people are making an error – perhaps an innocent oversight – into something empirically observable, and should thus adjust their beliefs about the natural world.

And next, we are going to plug that amended paradigm into your moral calculator and show you that you (well, everyone) ought to be modifying their behavioral choices.  We would like you to adjust your moral calculus in our direction, of course, but even if you don’t, we think you should find this argument compelling even on the basis of your existing moral principles.

Because I am an incurable quant-type at heart, I tend to conceive of such arguments in a pseudo-mathematical fashion.

So, I imagine some empirical metric for moral ‘worthiness’, as in: “The well-being of which is worthy of our moral concern and is thus something we should take into account to some degree when we make moral decisions.”

Although it would be extremely crude to do so (not to mention highly controversial if one draws certain human analogies), I think the tone of the article and the instinct of animal-lovers everywhere is that this ‘worthiness’ is somewhat proportional to higher brain functioning, with perhaps total mass, number, and efficiency of convoluted grey-matter neurons in the cerebral cortex being a passable intraspecific proxy.  Consider these images:

brain size evolution

brain mass species

One can see that Primates, Marine Mammals, and the larger Terrestrial Mammal Quadrupeds dominate.  From La Wik’s neuron count list, we can see Humans, Elephants, Whales, Chimpanzees, Gorillas, Dolphins, Monkeys, Dogs, and Cats (perhaps also Horses) earning places at the top of the biological charts.  This seems to accord with a lot of people’s observations about relative animal intelligence and their emotional instincts to admire – even love – some of these creatures and believe they should be treated with something other than mere material indifference.

So, the primary line of attack of the article seems to be a demonstration arguing for this adjustment:

moral v1

moral v2

Well, perhaps.  But you know, there’s a problem.  The problem is that the author knows that the empirical argument is being made in a particular moral climate: a function that maps ‘objective’ moral worthiness to arbitrary ethical imperatives in terms of treatment.  That tends to map onto this graph as so:


So, the question is one of these is the Dog and which is the Tail?  Well, if you’re trying to change people’s behaviors, you could try to shift their treatment-mapping curve to the left, some element of their empirical worthiness curves (such as the elephant’s) to the right, or some combination of both.

It all depends on which is easier to do, and I submit the ‘objective’ curve-shift is usually easier than convincing someone to change their moral mapping.  After all, you ‘know’ your own moral calculator pretty well, but you probably don’t know much of anything about elephants, and ignorance is the mother of indifference.  One you learn about how human-like the creatures are, well, now you’re got to do some serious recalculation.  Then again, we’re ignorant and indifferent to a lot of things, so whoever is in charge of providing us with educations and information about the world has a tremendous opportunity to decide what we learn about, and thus what we come to care about.

This of course gives rise to an awfully tempting incentive to be less than fully honest about your empiricism (and less than perfectly forthcoming as to its political ulterior motive).  I wonder if we just occasionally observe this in the Social Sciences (Oh, don’t try to hide. I’m looking at you too, Economics!)

For problems like this, the ‘moral landscape’ of belief reduces to shifts in the mean and also variance (but only on the low side, human moral systems seem to have an asymmetric bias, but look, it’s just a diagram to ease communication).  Here’s how you might label them:

JAIN: As in Jainism, or followers of the ‘do not harm’ principle Ahisma, who famously avoid hurting even insects.

PETA: Include more animals into your care-focus.

SPCA: Treat some charismatic macrofauna humanely, but then sharp drop off.

NIET: Nietzsche-Bomb Ichiban!  Only Übermenschen need apply!

ARIS: Either Aristotle or Aristocratic, take your pick, but it’s the view that there’s a lot of variety in the worthiness of human beings and how you are ethically compelled to treat them.

TRAD: Willing to judge some vilest-slice of humanity as deserving to be treated no better than animals, but being strictly humane above that level.



So, quick gist of the argument behind the Elephant Article is: Perform Empirical Adjustment from v. 1.0 to 2.0 because it is more correct, and also perform Moral Adjustment from Avg. to SPCA/PETA because you should; it is more ethical.

I find this a pretty extensible and handy tool when I contemplate the political-moral landscape (for instance, on display recently at Marginal MORAL REVOLUTION – allcaps theirs, not mine), and all you have to do is replace ‘animals’ with ‘groups of people’, depending how you label them.

On the Empirical side of things, you can compare those who believe in Human Biodiversity with those who insist of Human Neurological Uniformity.  Before everyone calls me mean names, you can replace ‘worthiness’ with any objective metric, it doesn’t matter.

And you can also model moral-mapping functions as well.

Conservatives, even nominal Universalists, tend to emphasize a series of concentric circles from the individual of proximate-relations, radiating outward with further distance in ranking in terms of moral concern.  So there is one’s family, community, religious-group, country/nation, culturally, geographically, and ethnically close foreigners … eventually landing in all humanity.  As the Arab Bedouins say, “I against my brother, my brothers and I against my cousins, then my cousins and I against strangers”

But Western Liberals tend to display a xenophilia that Sailer callsLeapfrogging Loyalties‘.  After all, if you need to distinguish your class as superior to your bumpkin compatriots (always a popular source of humorous, camaraderie-building conversation among asses everywhere), then it helps to ally with the alien against him.

One can use this moral-visualization tool to picture the difference between Universalists vs. Particularists, between Immigration Selectionists vs. Open-Borders proponents, between patriots vs. leapfroggers, and between citizenists and bubblers.

The point is to analyze what people write by working backwards.  Everyone is trying to influence you to change your behavior, and if they can’t coerce you, then the are going to try and change your beliefs, both type 1 and type 2.

So, whenever I see the kind of moralistic nonsense exploding in certain parts of the blogosphere – like we’ve been observing lately with the open borders / amnesty issue – I try to break the assertions apart into claims about reality and claims about morality.

But it’s usually easy and straightforward to contest falsifiable claims about reality.  And it also easy to say, ‘well, that’s your opinion’ when someone is being honest and telling you they are merely expressing their arbitrary political preferences.

But it’s a pointless, futile, and frustrating exercise to ever try to prove to someone they are ‘wrong’ about their moral-mapping, especially if you yourself remain beholden to a shared premise that it is even possible for them to be right about it, and that there there actually exists a thing to be ‘right’ about that doesn’t rely on a shared belief in a common moral authority.  You know, like God or something.

But now that God’s dead, there’s a great incentive to fill the vacuum of a desire for universal moral certitude, confuse the issue, and deceive yourself and everyone else by conflating the two and asserting that the political is the moral is the rational is the empirical.  Which means you’re going to see it all the time, and the only real question is where will it take us?

Samuel Johnson once said, “Patriotism is the last refuge of the scoundrel.”, but today, unsubstantiated moral proclamation is his first and only resort.  After all, with suckers born every minute, what else does he need?  It doesn’t matter if an advocate is wrong about the elephants in reality if he can always compensate and adjust the moral goal posts to whatever extent necessary to maintain his ability to say it is right to protect them.

This feedback between political ends and moral means may work to the great benefit of the animal elephant.  But I’m increasingly convinced it will inevitably result – and sooner rather than later – in the effective extinction of the Grand Old Pachyderm.

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