Perverse Incentives

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

from Go to Trial: Crash the Justice System, by Michelle Alexander (who wrote The New Jim Crow, which has been on my wishlist for a while and may have to move to the top.)

This hurts in my teeth and in my spine.  Our justice system has become unable to guarantee, even to offer, justice, to provide the basic rights that it was put in place to ensure. 

Now, instead, we have a reality narrated into existence by prosecutors, those who, in our adversarial system, are tasked with checking individual rights.  Defendants, defense attorneys are silenced.

But that is too trite.  That doesn't even begin to get at what is going on.

More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

This isn't just a loss of rights by defendants (and there's some serious weight in that "just"); this is a loss of rights by us all.  A jury trial protects a defendant from the whims of a powerful man.  It also given the people a voice to narrate reality: to determine the truth of facts, to decide whether a crime was committed and how harshly we, as a society, want to punish that crime.

We trust the jury to be our representatives.  We trust the defendant to speak for himself, and we give him a defense attorney so that he can speak the right language, so that his voice can be heard.  We trust the prosecutor to ask questions we ourselves would like to ask, to be our voice in the adversarial play that is acted out in front of the jury. 

I am probably mixing metaphors wildly here, but to make the prosecutor actor and audience and playwright is wildly abusive.  

I have a lot more thinking to do on this issue, including thinking about how all of this fits into the question of incentives, which is what I thought this post was going to be about, hence the title.

Strings Attached: Untangling the Ethics of Incentives, by Ruth W. Grant was reviewed recently in the New York Times. The reviewer, Nancy F. Koehn, writes:

Justified by expediency, plea bargaining “is at the heart of our criminal justice system,” Professor Grant says.

The function of the criminal justice system is “to ascertain the facts according to the evidence and to assign punishment proportionate to the crime for the sake of protecting the public,” she says. A bargaining process, she contends, can’t serve these ends. The cause of truth is failed because a plea bargain decides the question of guilt without adjudicating the evidence. 

In other words, justice won’t take place. “Either the defendant is guilty,” she writes, “but gets off easy by copping a plea, or the defendant is innocent but pleads guilty to avoid the risk of greater punishment.” By undermining the purpose of the justice system, plea bargaining challenges its legitimacy, she argues. 

In one of the book’s most arresting examples, she cites a comparison of workplace attitudes, behavior and standards in a county where judges “routinely punished defendants and attorneys for bringing a case to trial and a county where they did not.” 

Ms. Grant says that in the first county, workplace norms and culture were corrupted by an overarching incentive to plea-bargain and thus avoid trial.  An ethos of laziness prevailed, with defense lawyers aiming to spend as little time as they could with their clients; the administration of justice becoming “a matter of hustling,” she writes.

There is also the problem of the imbalance of power in the offer and acceptance of a plea bargain, which was also addressed by the article (and, I'm told, by the book).  Some serious ethical concerns are raised here, not least of which is the gapingly-wide-open question of whether the defendant has any truly free choice in the matter.

The article and the book also talk about the problem of incentives in the educational setting, focusing particularly on "pay for grades" schemes.  They ask the question, what behavior are we actually incentivising?  Which is a fair and interesting question.

I actually, shockingly I know, find the whole question of incentives even more interesting in the school funding and teacher assessment context.  I saw two fascinating presentations at GSE Research Day last Friday that talked about law and society.  On pointed out that those in policy positions who talk about using market forces to reform schools are not actually using sound economic theories.  Instead, they are using caricatures of economic theory and ignoring the whole wealth of scholarship that nuances and complicates the question of incentives.

The other presentation mentioned (but did not explore in depth because of time) how pre-litigation practices and informal interpretations of law by non-judicial actors become de facto law.  It sounded very similar to the problem of prosecutors raised above.  Basically, we have a small set of powerful people framing reality and deciding what the laws mean. 

Writing that, I realize that it could be an equally apt description of the judicial branch of our government.  The problem, I suppose, is the lack of checks and balances when private actors interpret laws.

Ok, I've reached the end of my immediately pressing thoughts on these issues.  I've written them down, I've shaped them, they've shaped me.  It's time now to talk about them, in my head and with others.  To see where they take me.  I'm curious what you think!