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Jason Brennan and Chris Surprenant join us today to diagnose why and where the American criminal just system fails.

Hosts
Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies
Guests

Jason Brennan is the Robert J. and Elizabeth Flanagan Associate Professor of Strategy, Economics, Ethics, and Public Policy at Georgetown University. He is the author of Against Democracy (2016), Markets without Limits (2015), Compulsory Voting: For and Against (2014), Why Not Capitalism? (2014), Libertarianism: What Everyone Needs to Know (2012), The Ethics of Voting (2011), and A Brief History of Liberty (2010). Brennan also blogs at Bleeding Heart Libertarians.

Chris W. Surprenant is an associate professor of philosophy at the University of New Orleans, where he directs the Alexis de Tocqueville Project in Law, Liberty, and Morality. He is the author of Kant and the Cultivation of Virtue (Routledge 2014), co‐​editor of Kant and Education: Interpretations and Commentary (Routledge 2012), and has published numerous journal articles in moral and political philosophy.

He holds a BA in philosophy and government from Colby College, and a PhD in philosophy from Boston University.

The American criminal justice is a truly a mess. Cops are too violent, the punishments are too punitive, and we imprison more people than any other country in the world. However, violent crime in the U.S. is very centralized in certain metro areas.

Is the Unites States one of the most violent countries in the Western World? Why did the U.S. militarize our police force? Are police in the U.S. more violent than police of other countries?

Further Reading:

Transcript

[music]

00:07 Aaron Ross Powell: Welcome to Free Thoughts. I’m Aaron Powell.

00:09 Trevor Burrus: And I’m Trevor Burrus.

00:10 Aaron Ross Powell: And our guests today are Chris Surprenant, he is Professor of Philosophy at the University of New Orleans and Jason Brennan, the Robert J and Elizabeth Flanagan Family Professor of Strategy, Economics, Ethics, and Public Policy at the McDonough School of Business at Georgetown University. Their new book is Injustice for All: How Financial Incentives Corrupted and Can Fix the US Criminal Justice System. Welcome to Free Thoughts, gentlemen.

00:34 Chris Surprenant: Thanks for having us.

00:35 Jason Brennan: Yeah, thank you.

00:36 Aaron Ross Powell: Are we seeing a turning point in terms of our relationship to cops in the criminal justice system right now?

00:42 Chris Surprenant: I mean, look, I think we’ve constantly seen various turning points over the last however many years it’s been since we saw the Rodney King video. One of the most interesting things I think of the last couple of days is the willingness of police officers to fire on and otherwise assault citizens and members of the media when they know they’re being recorded. So, up until now, you would think that a lot of the things that we’ve seen, a lot of the bad behavior, they’ve been caught, right? That no one thought that they were being recorded and they did this bad behavior and now all of a sudden it’s coming out. And now we see a lot of videos coming out where people, the police officers are… They know they’re being recorded and yet they’re willingly attacking citizens and members of the media. And this is, I think, going to become a problem. And so, there seems to be something going on right now. I’m not sure if it’s a turning point or something different, but it seems to be something significant.

01:44 Jason Brennan: The problem that we have here too is, on one hand, it’s clear because people are running around the nation smashing and burning stuff and also marching peacefully and protesting in light of police behavior. Everyone is aware of this, everyone’s concerned about it, and so you might think that this will lead to changes in the future. But there are a couple of empirical papers that have been written by, there’s a political scientist at Princeton, there’s a couple of experimental papers and so on that say that people react to the perception of lawlessness by demanding more law and order. So, as we’re giving this broadcast, we don’t know, it could be it goes the other way and that if anything, cops are going to be empowered by this in the long run, because the reaction has been not the right kind of reaction to create social change, but we don’t really know.

02:32 Trevor Burrus: Now, we’re recording this in the midst of the riots and unrest after the George Floyd video, and of course, all of this taking place during a pandemic. In general though, do we know about numbers in terms of police behavior? For a long time, especially African‐​Americans have complained that the police have been violent toward them, but we didn’t all have cameras in our pockets at that time, for most of that time. And I’ve quipped before that one thing that we know by everyone having a camera in their pocket is that Big Foot doesn’t exist, UFOs don’t exist, and cops are pretty mean to black people or often can be. Is that only what we’re seeing? Do you think that we’re just seeing a different kinda sampling or is this a sort of long run problem?

03:19 Jason Brennan: I think we don’t have really good data about things like police killings, and so on, and many of the kinds of issues about violence are very difficult to measure. But what Chris, and I do early on in the book, at least is, try to sample those papers as best as possible and also look at longitudinal studies where they talk about the past versus current times. To sort of summarize those papers, it’s pretty clear that the US is an outlier among OECD type nations about how violent its police are. They’re unusually violent compared to others. And one hypothesis that might pop in someone’s head immediately is, “Oh, that’s because our citizens are better armed.” You’re a police officer dealing with armed citizens. But that doesn’t really explain it in part because if you try to do like solve for the amount of police violence according to gun prevalence in different areas, you don’t get much of a correlation there. So, that doesn’t seem to be it.

04:13 Jason Brennan: You see unusually high levels of police violence even with, say, subdued citizens, sitting on their necks and choking them to death, that kind of thing. And as far as there is data, it looks like it has gotten worse and it got worse starting in the ’70s, but got much worse in the ’90s and afterward. So I think we have good reason to think that the US is unusually violent, not just to black people, but to white people too. It’s definitely worse to be a black person stopped by a cop in the US than to be a white person, that’s clear, but it’s also worse to be a white person stopped by the cops in the United States than it is to be a person of any nationality stopped by the cops in Germany. So, we had some examples, like in Germany, the number of bullets fired in one year by the police outside of shooting ranges is lower than the number of people that were killed by Californian cops in that same year. And those are the kinds of differences we’re seeing.

05:07 Chris Surprenant: I think you also need to put the data in some sort of context when it comes to crime rates in the United States as well. And so, there is some data showing that, say, between 2013 and 2018, black Americans are two and a half times more likely to be killed by police officers than white Americans. But when you look at crime rates, the crime rates are high as well. And so, one of the things that Jason and I do in the book is, I don’t think we necessarily come across as anti‐​police or anti‐​judges or anti‐​law enforcement, but rather to understand why people are making the decisions they’re making, how we’re responding to crime, why crime is occurring? Thinking about things along those lines, because it’s not as easy to just say, “Well, look, there are a lot of black Americans that are being abused by the police.” I mean, that is true, right, but the other side of that story is that there’s more crime in black communities than white communities, or at least certain kinds of crime. The type of crime that police generally respond to. And we go through all sorts of reasons is how you try to de‐​escalate that, but it’s more complicated than just looking at some of those numbers, although quite frankly the numbers themselves are quite bad and quite disturbing.

06:21 Aaron Ross Powell: I mean, you mentioned a bit of culture, but I’m curious about how much is driven by culture in America both in terms of police violence, in terms of the police themselves being more violent and in terms of the people that they’re trying to interact with potentially being more violent? Because it does seem like America is… Just had like a uniquely violent place in the Western world. And also that we tend to be fairly vindictive in our culture as well, that Americans like to just punish. We love the carceral state, we like to punish. We like to just strike back. We’re seeing this right now with the rhetoric, especially from Republicans and the President, over the riots of like, we just need overwhelming force, that that kind of approach to, I guess, call interpersonal relationships and problems seems to be something that is, is very American, is there… Is that maybe some of what’s driving this? Is that we just kind of culturally, like the police are more likely to beat you up, and if you’re caught by the police, you’re more likely to resist in ways that are different from, say, the way that people would resist in Europe?

07:29 Jason Brennan: Yeah, I think it’s a good question, but I think it’s partly that the phenomenon you’re talking about is the thing that needs to be explained, not completely, it’s the explanation. And the reason for that is that when you look at, say, the United States in say the 1960s, we had a higher crime rate than other OECD‐​type countries, but not… And we weren’t an outlier, it was kind of like, if the typical country is 100 on a scale, we’re 150, but we’re still grouped in with them. And then crime for reasons that no one quite understands. We’ve read all the books, and there’s not like a consensus view. For a variety of reasons, no one understands, crime started to go up dramatically, and that led to a stronger support for having a powerful police state, and having powerful police officers and militarizing the police and so on. And this kind of in support for incarceration and these other things appear there.

08:21 Jason Brennan: But then the odd thing was then, starting around the 1990s crime went down, violent crime went down, victimization rates went down, dramatically, and so the US… And when it comes to murder it’s still an outlier, but in many measures of crime, it’s actually better than many European countries, and it’s gotten better, but nevertheless even as things got better and better and better in the US, the culture of like, ever being harsher on crime got to be worse and worse. So it’s a puzzle because we were part of the group like other countries, and then we became an outlier afterwards. And it appears that the cultural phenomenon you’re talking about was in the first instance a response to the perception of higher crime and a desire to do something about it. Though now it leads to a kind of vicious cycle where even when crime is getting better, you poll Americans, they think it’s getting worse and they want ever harsher punishments.

09:11 Chris Surprenant: Yeah, and to say a bit more about crime rates too, we’ve got a very large country, and it’s a very diverse country. And when you start talking about national averages in terms of crime, it doesn’t really tell you the whole story. So the national average may be something, but when you start looking at individual cities like Detroit or Saint Louis or New Orleans, or Washington, DC, or some of our more violent cities in the country, you’re looking at crime rates that exceed the national average by five, six, seven, eight, times. And then when you live in one of those cities. So Jason lives, or at least works in Washington, DC. I live in New Orleans. I have not, at least up until this point in my life, been the victim of a violent crime. But I live in a very violent city I just don’t live in violent parts of that city. So when you think about a lot of this violent crime being concentrated in certain parts of the city, it really gives you a very different picture of the communities that we’re looking at, and what it’s like to live in some of those communities.

10:09 Chris Surprenant: And historically, you can’t blame a lot of people in these communities for not trusting the police, given what’s happened historically. So, it’s a complicated situation when you look at the relationship between citizens and police in this country, certain groups of citizens and police. And understanding that picture is gonna be important in addressing the current situation and addressing things going forward.

10:33 Trevor Burrus: So in your book, you discuss sort of how you guys think this happened, one version. ‘Cause there’s a lot of people, sociologists, or other social scientists who will say, racism bubbled over due to centuries of grievances or things like this, but you guys say, it doesn’t explain everything, but there’s just… You have to look at the incentive structure of the criminal justice system to get some idea of what is going on here.

11:02 Jason Brennan: Yeah, so early in the book we said there’s three basic hypotheses that correspond to three basic ideologies and they’re all partially correct, but not quite right. So, if you’re a progressive/​left liberal/​left‐​wing person, you might think it has to do with racism and poverty, that explains why the US system is so weird, but the problem is, obviously, racism hasn’t gone away and neither has poverty, but racism is definitely better today than it was in 1960 or 1950. And racism has generally waned rather than increased, but if you’re to kinda graph it out like, the crappiness and the harshness and violence of the US criminal justice system has been going up fairly dramatically and racism is going down. So you’re going in different directions. Similarly you can say, “What about conservatives?” They’re like, “Ah, just because there was crime and the breakdown of family,” but the problem is, those trends don’t go that way either. Crime got worse then better, the breakdown of family got worse and then got better, but the system becomes ever more punitive and harsh. And Libertarians say, it’s all the drug war and if the drug war never happened, this US system wouldn’t be so bad.

12:13 Jason Brennan: But there’s reasons to doubt that too, including things like a lot of drug arrests are actually proxies for violent crime. They’re just arresting them on some… And they’re arresting people and trying them and convicting them on things that are easier to prove than certain kinds of violent crime. So, it’s exaggerated. So we think fundamentally, what makes the US different is the unfortunate problems about federalism, about the way things are funded, about who votes for what creates a kinda perfect storm of bad incentives, where communities might choose to do some kinda policing over others, or choose to substitute incarceration for policing, because they can externalize the cost on to others. Or the way that money is collected through fines and so on are unusual in the US and not the same as elsewhere. Or weird perverse incentives from federal funding or just… There’s a whole host of these things, and together they add up to… And these things are absent in other countries and together they add up to every player in this system has a perverse incentive to act and do the wrong thing.

13:16 Chris Surprenant: Yeah, and I think this is really important to highlight. There’s a line in our book where we say that, “If you imagine we wake up tomorrow and everyone was the same shade of tan, you would probably see the same number of people in our jails and prisons because of how much money is being made off of it.” You know, It’s not that there aren’t racist judges and racist cops and racist laws and there are, and it’s a real problem, but you have so many people who are profiting off of the criminal justice system right now is that the issue isn’t necessarily that people are being locked up because they’re black. They’re being locked up in many cases, because they’re poor. And it just so happens in our country right now that being black is often a proxy for being poor. And so, if you’re going to pick on someone because you wanna put them in jail for a couple of days, the easiest thing to do in many cities is to pick on a black person, because it’s likely that they don’t have money, it’s likely they don’t have political capital, it’s just easy.

14:18 Chris Surprenant: Now, policing and doing that would be a bit more difficult in situations where everyone were the same shade of tan, but you’ve got so much money tied up in the system and you have got so many people’s livelihoods that are tied into it, that it’s gonna be very difficult to undo some of this stuff. And this was one of the challenges that we were really grappling with when we tried to figure out what are some reasonable solutions to the problems that we’re facing.

14:41 Trevor Burrus: But it’s not just… You’re talking about profits, there’s obviously a lot of money, but there are other ways of profiting too from the system in sort of this straight‐​up economic sense that politicians can profit by say, getting elected.

14:54 Chris Surprenant: Yeah, of course, and how we count people too when it comes to voting and representation works as well. And so, one of the things that we could do very easily when you look at, say, a census and how you count people in terms of districts is you start counting people not where they’re in prison, right? So right now you count people where they’re in prison, right, you count them from where they’re from, and there are all sorts of ways. You’re absolutely right, that people benefit and people profit, not just in financial sense, but that’s the same type of profiting, right? You have a lot of people with a lot to lose when you look at changing some of the aspects of our current system?

15:26 Aaron Ross Powell: If a lot of this is explained by financial incentives, I’m curious how that fits in with two of the particular areas people today seem to be focusing on as far as rectifying, especially police brutality and that’s qualified immunity namely the protections police officers have from being sued for violating the rights of citizens and police unions which protect… One of the things they do is protect bad officers from the consequences of their badness, that suing individual officers has clearly a financial cost, but it’s not necessarily a cost that’s borne by the department. Like, you could sue the individual. And the police unions protecting individual officers, there’s not a clear, like, people profiting off of individual bad police, because you can always replace them with a new good police officer. Do police unions and qualified immunity fit into the financial incentive story or are they separate from it?

16:33 Jason Brennan: We didn’t talk at great length about qualified immunity in the book in part ‘cause we aren’t only talking about police violence, we’re talking about incarceration levels, the pre‐​trial detention and fines and things like that. And it’s puzzling that there’s a whole legal history here about why that arose, and so on. And I don’t know if I would try to say that the doctrine of qualified immunity arose because of financial incentives. On the other hand, when you think about police unions, a good analogy here would be, for like, they’ll be probably familiar to your listeners is how teachers unions work in the United States, right? So, teachers have a financial incentive… As a teacher, you might think, “Well, the teacher’s unions aren’t particularly good for me, I’m putting money into the system. What do they do?” But they create a lack of competition, they immunize you from certain kinds of harms. You get to keep your job even if you do a bad job, and so on. And you have an interest in having a system like that, that protects you from the downsides of your own behavior. So then it starts to turn into a concentrated benefits diffused cost kinda problem.

17:39 Jason Brennan: Individual police members might have a strong incentive to pay into this, into a Police Union, which in turn lobbies very vigorously in a variety of mechanisms. When I say lobbying, I don’t just mean lobbying for policy changes, but the way that they might shame politicians publicly and do other kinds of things. They lobby hard to protect their members. And because they have such a strong interest in protecting their members, they put tremendous amounts of efforts here that benefits are concentrated. The rest of us, it would be kind of like a public good, a diffused public good for us to kind of lobby against them. And since the benefits are here really low and the costs are diffused we don’t. So I think you have a concentrated benefits diffused cost here if you just think of it… Story here, if you just think of the Police Union as being like any other special interest group.

18:29 Trevor Burrus: And as you said, the book is about, even though right now we’re having a conversation about police violence in particular, the book is about more than that ‘cause although we have a problem with police in this country, it’s fair to say that the criminal justice system is quite broken from kind of top to bottom. One of those aspects of this broken that you guys write about in the book is what has been termed over‐​criminalization. Do you guys have sort of a specific way that you think about how do we get to over‐​criminalization because there’s only 10 Commandments, right? I guess there’s a lot of Jewish laws. There’s a lot more things that Jews do but there’s… In terms of criminal law, there’s only 10 Commandments, and you can sort of name the crimes that exist. They seem to be fairly simple, but we have way more than that, that’s punished criminally.

19:16 Jason Brennan: Yeah, it is a puzzling issue. What should be criminalized and what should not be? We have a whole chapter on, well, what should be a crime? And so, one of the reasons we talk about that is that part of the problem is, if you wanna think about what should be criminalized, you have to think about the competence and character of the people that will be in charge of enforcing that. This is something that libertarian‐​minded people say all the time. Many people who are libertarian‐​minded might not be very libertarian‐​minded if governments were invariably competent and moral and always did the right thing the right way for the right reason. They might be like, “Oh, yeah. I’d want a more expansive government.” So, one thing we say is that when you want something criminalized, we have a checklist of things to think about. Should this be criminalized or not? And one of them is, will it be enforced in a good way, in a competent and fair way? Will the costs of the enforcement actually be worth it?

20:10 Jason Brennan: Or it might be the kind of thing where the costs actually exceed the benefits of criminalizing, even just from a purely utilitarian standpoint, and you’d be surprised at how few things do. We ask people to think about the question of how will people… Does criminalization actually work? Because many times when you criminalize something, you just make that problem worse rather than better. A good example would be the drug war. It’s pretty clear that the drug war makes the drug problem worse rather than better. I think that’s familiar to most people here, we don’t have to get into the argument. You have to ask, is it worth the price that you pay? And you also have to just recognize that not everything that’s part of morality should be part of law. If I call my mom right now while we’re on this and say, “Hey, mom. Just for the hell of it, to prove a point, I’m never going to talk to you again and I’m not gonna let you see your grandkids until they’re 18 and they’re out of my power.”

21:05 Jason Brennan: That would be really deeply immoral for me to do, but there are reasons why we don’t make it punishable by law, as opposed to if I go up and punch you in the face a couple times. Maybe that’s actually significantly less harmful, but we do criminalize that. You have to think about, there’s only gonna be a specific subset of harms that we put on other people that really should be subject to criminal judgment. We don’t want to use the law as our way of saying what is good and bad and to pass moral judgment on everything. And once you go through the checklist and look at specific examples, this I think, chips away at a lot of things that should be criminalized. We don’t wanna say necessarily that it means only crimes with victims, but that’s pretty close to the story, and that’s not even… That’s maybe a necessary condition, but not even sufficient.

21:50 Chris Surprenant: Yeah, and to add to that, even if an action has a victim, it doesn’t mean necessarily that it has to be pursued through criminal means. We talk a lot about how you can pursue a lot of harms through civil means. And so, there are other ways to look at this besides sending the police after folks, and I think one of the challenges that we have to remember is that it’s not just what’s criminalized, but the reasons why those things are criminalized and then how they’re prosecuted and how they’re pursued. And so, all across history of the US, you see laws that are put into place that are not equally enforced, and so this another problem as well. And so, it’s a bigger picture than just, what are the police doing, what are the laws doing? Because a lot of times what you see on the books isn’t exactly how things work out in practice.

22:35 Trevor Burrus: Now, in terms of the incentive structure here, we did hear back… What was it? 2014, I believe, when the Ferguson uprising happened, where we saw the use of criminal laws for the purpose of basically taking profits in through a bunch of petty fines and petty ordinances about hedgerows and things like this, and those being used. But we also see that… That’s one way that we could see incentives to have more of these laws. We see all over the place that there could be some incentive structure to put more people in prison and to have more laws that charge people or fine them.

23:12 Chris Surprenant: Yeah, look. Let me talk with you about some interesting incentives, and there are all sorts of incentives related to prisons, but let me get off of prisons just for a second, because I think this is a discussion that goes beyond prisons. One of the most egregious examples I’ve seen relates to bail and comes from New Orleans. So the Magistrate Court. Everyone who gets arrested has to go through the Magistrate Court, where they give the person… They decide either they’re going to release them on their own recognizance, or they’re going to require them to pay some sort of bail in order to get them released. The rules of the Magistrate Court allow the Magistrate Court to take a portion of the bail bond fees in order to run the courts. And so, when someone has to pay, say, a thousand dollars in bail to get released, they can go to a bail bondsman and have that person come up with 5%. So they pay 5% to the bail bondsman. So they pay the bail bondsman $50.

24:07 Chris Surprenant: The bail bondsman puts up $1,000, or at least guarantees the $1,000, and they’re able to leave. The problem is that the Magistrate Court gets a percentage of that $50 fee. And so, one of the things that we were seeing in New Orleans is that the option of paying cash was eliminated, and they also reduced the number of RORs that you would get. So what you would have is, you would have the magistrate judge coming in and saying, “Look, we’re gonna assign you a cash bail, and not just where you can put up the cash, but you need to actually pay the bail bondsman a fee,” because in the background, what we realize is they needed the fees to run the court. And so, you see all of these perverse incentives that are set up to put a lot of the things that we see in place right now. And we may say, you hear the story and say, “This is horrible.”

24:53 Chris Surprenant: And I think one of the things that I think hopefully comes out of the book is that it’s not so much that the magistrate judge, who just so happens to be the father‐​in‐​law of our current mayor, it’s not so much that the current magistrate judge is a horrible person. He needs money to run his court. And if you’ve been down to the Magistrate Court, you know the thing’s falling apart. You know they’re understaffed. And he’s gotta generate the money from somewhere. So, it’s not that he’s a bad person, but rather that we’ve created an incentive structure that when you look at how it gets followed, you see a disproportionate impact on people who are poor, on people who are already marginalized. And those are the types of stories, to me, that are really more troubling than just saying, “Well, look, let’s put a lot of people in prison because we need to keep the beds full.” Those are bad too, but it’s all across the system, and it’s in places that you wouldn’t normally expect.

25:46 Aaron Ross Powell: This raises something I’ve wondered about as far as criminal justice reform goes, and it’s maybe something, fingers crossed, that’s changing a bit. But it seems like a lot of you say there’s these horrible stories of people being abused in the system, taken advantage of in the system, that the system is milking them for cash in ways that ought to horrify us. But getting traction with that, it feels like is often really hard because so many Americans are like, “Well, if you hadn’t done anything wrong, you wouldn’t be in this system in the first place. If you had just lived a good life, you wouldn’t be tangled up with the courts. And so, I don’t really care. These are people who live a distance away from you, live in neighborhoods I don’t go into, in the cities that I find to be… A lot of the right things in these cities is these centers of nothing but Marxism and carnage. And so, what do I care about what happens there?” And so, they can listen to the stories you’re telling, and even if they believe them, they say, “Well, that doesn’t seem like really a problem to me. Of course, these people should have their money taken away because they must have done something wrong.” Is there a way to move in a direction of reform in a society that seems to have that view of, “The only people who end up in the criminal justice system are bad people anyway”?

27:18 Jason Brennan: You’re right that we don’t have an easy answer for that where you can say, if you could just tell them this one thing, they’ll suddenly care. But we do try to motivate them to some degree by appealing to their self‐​interest, and also their sense of fairness in certain aspects. One thing is that, yeah, we are milking the poor where there are entire cities like Cleveland Heights. Maybe it’s changed in the past 10 years, but Cleveland Heights, for a long time, their model was, “On Mayfield Road, we’re gonna change the speed limit every 100 feet, from 35 to 25, and then constantly pull people over and get money from them in order to pay for our municipal costs.” And lots of cities do even more horrifying versions of that. But one thing is that you’re paying for all this, it’s expensive. And a lot of the things we’re seeing have to do with… Municipalities realize, “If we put more cops on the street, that’ll reduce crime. But if we just try to push hard for people being in prison for longer, that won’t reduce crime as much. In fact, it might even exacerbate it in certain ways. But we can shift the cost onto state tax payers, rather than local tax payers.” So, everyone’s passing the buck to somebody else. And you, the reader and the listener, you’re paying for that when you pay your taxes. You’re paying for ineffective and contrary to evidence policing and incarceration strategies.

28:33 Jason Brennan: Another thing is just, you, the person who’s listening to this right now, you are a criminal. You just haven’t gone to jail. We went through a number of different books and things and tried to measure the degree of criminality of the average American. And it turns out that part of the problem is there’s just so many laws on the books, so many regulations, so many laws that are open‐​ended that… One estimate says that 90% of Americans have done something that would justify, according to the law, convicting them of a felony and putting them in jail for one year. So you might have heard the Three Felonies a Day book, and that’s probably exaggerating its case, but saying 90% of us have done something that is a felony and could put us in jail for a year. And the only reason we’re not going to jail is because we are the right kinds of people and it’s a certain degree of government caprice that they’re not coming after us. And my colleague at Georgetown, John Hasnas, who writes in corporate law, he says that when it comes to corporate criminal law, this is done on purpose. The government actually wants it to be the case that any corporation at any time can be prosecuted and milked for various financial fines. That’s done on purpose. But there’s something like that that’s happening to all of us. We’re all a bunch of criminals.

29:45 Jason Brennan: And finally, if you just care about crime, look, giving… You have a person who does something that they shouldn’t have done. And then you give them a massive financial fee and/​or you stick them in jail for a short amount of time while they await trial. At that point, you’ve probably made that person lose their job, their kids can’t get fed anymore, the kids are gonna go on a government welfare program that you’re going to pay for. The guy’s gonna lose his job, and he’s gonna lose his family, he’ll get divorced. You’ve ruined his life, and now you’re gonna put him in a summer camp. It’s not that way, but you’ll put him in camp with a bunch of other criminals who will teach him how to be a harder criminal. You’ll mess up his psychology and make it really difficult for him to re‐​integrate into society. You’ve just created a massive problem, and you get to pay for part of that. So I think, even from a selfish standpoint, you should care a lot about this.

30:34 Chris Surprenant: Yeah. And there are also some other issues here, too, when you start talking with public defenders and you start talking with attorneys and judges, you realize very quickly that there are two sets of laws in this country. You have one set of laws generally for people who don’t have a lot of political capital or who don’t have financial resources. And then, you have another set of laws for the people who do. And so, I think when you look at a lot of the milking, what Jason said is right, that it’s who’s being milked and when. You look at a lot of speed traps. We tell the story of a number of cities, my favorite is down in Waldo, Florida. 95% of their municipal budget came from a speed trap. It was always people outside of Waldo that were getting caught.

31:17 Chris Surprenant: And it’s the same thing, too, when you look at, say, who’s getting picked up for drug possession, or who’s getting picked up for certain crimes in New Orleans, is that it’s not necessarily people from outside of the city, but it’s people in the city who have no political capital, who have no money, who’s… Those are the people being targeted. You come down and you smoke pot in New Orleans. Well, fortunately, it doesn’t matter who you are, smoking pot in New Orleans, you’re not gonna get picked up. But five years ago, you come down, you smoke pot in New Orleans on the street, none of us are gonna get picked up. We’re all a bunch of white guys. But that’s not the case for everyone. And so, part of it, that’s the issue too, is who’s getting harassed? Who’s getting picked up? Who’s getting prosecuted? When and how?

32:00 Trevor Burrus: Do we even need police? In the radical, libertarian sense? What people like Bruce Benson have written about this, and I ask people to think about what police are actually giving them. At least, as they currently are. Because if you want to get something… If you have your car stolen or your bike stolen or something, most people would probably, maybe not even report that to the police, ‘cause they know that the police would not take any time solving such a sort of silly problem, that they’re gonna be doing something else. So, you protect your own self. You put locks on your bike and you put a security system on your car, and you put bars on your window, an alarm system. So you’ve actually just basically taken the protect part out of the police there for most of the things. And they’re off raiding people’s homes and not actually protecting you in any meaningful way. In that sense there, how much do we actually need police? Or, is there a way, I guess, the secondary question, is there a way to change this nature of police behavior to actually protecting and serving, as the motto goes?

33:05 Chris Surprenant: Yeah. Look, I think one of the things that’s clear is that police presence and having police reduces crime. That is clear. Now, how the police could function and how it could be different from, say, they’re functioning now. One of the ideas that Jason and I were kicking around for a while is, imagine if the police in the city, they operated like the fire department. You don’t see the fire trucks driving around the city, making sure there’s just nothing on fire. They wait until they’re called. And just like I’m not gonna call the fire department if there’s a small grease fire in my kitchen, likely people aren’t going to call the police unless there’s something really serious. So, I don’t buy into the idea that we don’t need any police. I think that’s a bit much, not only looking at the data, but just looking at how people operate and wanna operate. But there’s no reason that police on a regular basis need to be driving around, pulling people over and doing that sort of stuff. So, I think we need to look at, say, how policing is done, the interaction or the relationship between the police and the community. But I’m not sure I’m a believer in just to say, “Well, look, let’s just get rid of them entirely.”

34:20 Aaron Ross Powell: One of the really striking things in the horrific George Floyd video is, it’s not just that you have a cop kneeling on a man’s neck for nine minutes until he’s dead, but that you have three other police standing around doing nothing about it. That at any moment, any one of them could have pulled the guy off of Floyd’s neck. And that seems to be… One of the central problems in the American criminal justice system and American policing is, we always hear, “It’s just a few bad apples.” And I know there are statistics about the complaints about excessive force and brutality are overwhelmingly concentrated among a few cops on the force. It’s not that all cops are engaging in this stuff. But it does seem like all cops, or most cops, don’t do much about it. They aren’t constantly calling for their brutal colleagues to be fired, they aren’t turning them in, they aren’t recording them in the act, or they’re standing by and watching them murder someone. Why does that happen so much in American policing? Why does it seem so difficult to get good cops to do something about bad cops?

35:35 Jason Brennan: I was just re‐​reading a book by Miller called Managerial Dilemmas, and it’s a book about the economics and psychology of large businesses. And there’s a similar kind of problem there, and a similar problem with, really any organization. Marxists think things like, a business is gonna fire you as soon as you turn out to be not worth your paycheck, because that’s all they care about, is profit. But on the contrary, what they find is that, actually, they’re pretty loath to fire people, and they keep them around way longer than they should. And part of it has to do with just people want to be liked, they think of themselves as part of a team. Humans are very group‐​ish, we have an us versus them mentality. When you’re in a traumatic situation with other people, which police officers often are, you start to see you as part of one team, and everyone else as part of the other team. And so people naturally support each other in pretty horrific things. And this is an almost universal phenomenon.

36:29 Jason Brennan: The problem is that the kind of horrific things that happen with police officers are gonna be much more dramatic on average than what happens with college professors. College professors also support each other doing garbage and awful stuff, but it just is usually much more light beer. That’s part of it, but there’s other stuff too. In the US, there have been weird… You’ve heard this on the news, but there is a weird training towards being warrior cops, where tactics that were created by the military for asserting dominance in a city, these tactics were then taught to police officers. And it comes with a certain way of thinking about seeing people as enemies and assuming that they might kill you at any second, and thinking that it’s more important to protect your own life than to protect the life of the people that you’re suppressing. This stuff started to spread, and part of it did spread… This is where libertarians get some stuff right, a lot of this spread because of the drug war.

37:25 Jason Brennan: There was a weird financial incentive to start using SWAT teams and SWAT techniques, to using military style weaponry and tanks and so on, that started really around the 1980s. A good number would be, in the year 1981, SWAT teams were called about 3,000 times in the entire… Over the course of the entire year in the country. Now, they’re called about 80,000 times per year. Roughly, at least a hundred times happen today and mostly for really minor things like serving drug warrants.

37:54 Trevor Burrus: And 1981 was a way more violent year than now.

37:58 Jason Brennan: Oh yeah, yeah, that’s right, yeah. 1981 was when they were treating New York City as a dystopian hellish landscape, which it is again today, but a week ago was not. Yeah, there’s a kind of training that reinforces what’s already a pretty horrible human tendency, which is, “We protect our own and we don’t care about others.” And then you add to that a kind of training towards a militaristic occupational techniques and treating everyone as a hostile, an enemy combatant and that increases it. So, yeah, I think the combination of those things explains a lot of it. And probably, there’s a bit that’s been going around with Chris Rock lately where he says, “Yeah, yeah, a few bad apples, but hey, guess what? There are certain jobs where you don’t get to have any bad apples.” Like airline pilots is one of them. You can’t have a couple of airline pilots who are just like, “I just don’t like landing, I prefer to crash.” No, you don’t get to have any airline pilots that prefer crashing. And similarly, the police, you shouldn’t keep people on the forest who are routinely abusive, but they do or they shuffle them around.

39:01 Jason Brennan: You think about the Catholic Church shuffling around child abusers, it’s very similar to what happens in police forces. People get shuffled around, they can move to a different district, they might get sort of, almost like traded with a recommendation to maybe go work in another city. Like, “I don’t really want this guy in my force anymore, how about I’ll write him a recommendation letter and he’ll go work in another town, and then he’ll be happy to leave, and I get rid of him.” There’s a lot of that kind of thing going along, too. Generally speaking, very difficult to get rid of bad police officers. And part of the reason, by the way, we should say is because we suck. Not just the system, but us, we human beings. We read a number of books and papers about why don’t prosecutors go after the police? Well, probably it’s ‘cause it’s their friends, they’re in cahoots with them, they’re working in the same system, but part of the reason is because they think it never works. Juries are very unwilling to find police officers accountable for crime, even when it’s just blatant.

39:55 Trevor Burrus: I wanna get into some of the reforms that you guys propose and one of the ones that maybe, actually, Jay, what you just said is relevant to that that really sticks out, is no government prosecutors, period, that you would just not even have government prosecutors. What would you have instead and what would that change?

40:14 Jason Brennan: Yeah, one possibility would be, so, right now we have the problem where… Think about how the system is stacked against you. It’s the prosecutors, the people who collect evidence, the police, the whole thing is run by the government and so we can even talk about separation of powers, but there is not separation of powers when we’re talking about this sort of stuff. So, what if instead it was just the government would pay people, like private lawyers, to be both prosecutors and defendants at any given time? If you’re a lawyer or something like that, maybe you owe a few hours a year towards this, maybe a people who make themselves available and you kind of get picked at random to be either the prosecutor or to be the defense attorney, but you don’t have people who are professional prosecutors.

40:58 Jason Brennan: Because as we talk about in the book, professional prosecutors face a lot of perverse incentives which cause them to try too many people, to go for high‐​profile things, to over‐​criminalize and so on. Another possibility might be like you have… Like right now, we have a sort of thing going on where there’s the public defense attorneys that are paid for by the state for people who can’t afford their own counsel and the public prosecutors, and the amount of money and resources that goes to prosecution is enormous, and the amount of money and resources that goes to public defenders is basically nothing. So, what if you had a system where they’re just all in one group and even if they’re government attorneys, you can get picked at any time to be a prosecutor or a defender. And now, if you’re trying to be one of these people who’s trying to advance your career based upon your success rate and so on, at least you have a somewhat of a stronger incentive to do a good job as a defender as well.

41:51 Trevor Burrus: This is the first time I’ve heard this specific proposal. When I was reading your book. It would be shocking how much that would change so much. So it’s a pretty interesting proposal. Chris, did you have anything to add?

42:05 Chris Surprenant: Look, it would be easy enough to do it, at least in theory. I think in practice it ends up being tougher, but when you look at the resource disparity, it’s really significant. And that’s the problem here, you just gotta figure out ways that… You’re not gonna make the people respond to different… People are gonna respond to the incentives they’re gonna respond to, and we know what type of incentives people respond to, and we know how they respond to those incentives and so we think the best way to move forward is to say, “Look, we’re not gonna change human nature. We’re not gonna change how people respond to the incentives so why don’t we use those incentives in our favor?” How do we create a system that allows people to respond to the things that we know they’re gonna respond to, in the way they’re gonna respond to them and sort of use that to serve the interests of justice instead of what’s going on right now?

42:56 Aaron Ross Powell: The NYPD has 55,000 employees, according to Wikipedia just now, and a lot of these big cities have thousands of police officers operating out of a single department with a single chief. Is that part of the problem? Would we be better off if we broke up police departments more, made them smaller so there was fewer, I guess, hierarchy and knowledge problems, but also it might lead to more local policing that people get to know their district more. Have we run into a problem where a lot of police departments are so big that it’s hard to make any meaningful change or they’re so big that bad actors and bad actions can kind of disappear into the cracks?

43:44 Chris Surprenant: I’m not sure the problem is that they’re necessarily too big, but I do think there’s a problem when you look at who’s doing the policing. If you can get people from the community to police their own community, you’re going to be in a much better position than if you’re getting people from the outside coming in and seeing this as a job. And so the challenge is gonna be, how do you do that? How do you create a system such that the people are from the community who want to be the police in their community? And I think that’s gonna require a very different approach to policing and you’re right. Look, maybe in a large city it gets to be quite big, but look at it from the standpoint of universities. So, Jason and I are the university. You have all sorts of colleges and universities of all different sizes, and there’s no one right now who’s saying that, “Look, Arizona State can’t function because it’s just simply too big.” In fact, Arizona State is functioning much better than a lot of small colleges right now and so I don’t think the problem is necessarily that some of the police departments are too big, but I think the bigger problem is how they’re being run and who’s doing the policing in some of these communities.

44:57 Trevor Burrus: So, if we’re looking at the sort of problem, it’s interesting, you addressed it on multiple levels in the book and as we said, the police right now are the big story, but they’re not the only story. So, we start with too many criminal laws and then enforced by police with bad incentives, and then put into prisons and cages that also have bad incentives, and that’s another thing where you have some interesting proposals. One of them is competitive prisons. What would they be competing on?

45:28 Jason Brennan: Yeah, I often use this as a thought experiment in class where I talk to students about, “Hey, public prisons stink, private prisons stink. Is there something we could do to change how private prisons are paid for that would make conditions better?” And I give them a little bit and they always come up with the same thing. They think about, “What if there were a prison voucher system?” So instead of it… Right now, you get… Let’s say we decide you have to go to prison, which Chris and I think should be used very sparingly, in only very special circumstances, but you have to go to prison, so what happens is, you get, say, a $1200 voucher or whatever it might be, and now, all the various private prison companies have to compete to get you to go there.

46:07 Jason Brennan: So once a year, you get to pick which prison you go to. Maybe there are some regulations and stuff like that, but you have to go to a certain kind of security‐​level prison and you say, “Well, prison A wants all my money,” so they’re gonna say, “You have $12,000, we’ll give you a mat to sleep on and one baloney sandwich per day.” And prison B also wants my money, so they’re like, “Well, we’ll give you a mat, and a pillow, and two baloney sandwiches.” And now prison A is like, “Well, we’ll give you a bed and three baloney sandwiches.” And you get into a bidding war, and the more competitive the market is, the more they have to bid so now they’re gonna start offering you things like better and higher quality amenities, protection, safety, maybe services to prevent recidivism and to try to make sure you actually get rehabilitated, all because they want your money. Not because they like you, not because they’re good people, but because they want your money and what it takes to get your money is to actually offer, in a sense, a good prison product.

47:00 Jason Brennan: And I sometimes talked about this with the public and their reaction is, “Oh, I’m worried that your new proposal would actually make prisons too nice. They wouldn’t be brutal and nasty enough, and people wouldn’t suffer enough.” You can also do things like you could, say, allow them to keep some of the money. We’d say like, “Look, you get $12,000 a year and if you don’t spend all $12,000 on your prison, then you get to keep, say, half of what you don’t spend and put it in a bank account and when you leave, you get to keep it, and have some money to get you back on your feet once you’ve served your time.” So, introduce competition, but right now, when people think about privatization, it’s really just… The problem with privatization is that the customer is the government and the government wants to save money and so profiting… When you’re profiting off of one customer, the person who gets screwed is the prisoner, and this is the problem with all nonprofits when the person who pays and the person who gets, the service are different.

47:52 Trevor Burrus: So, in this crazy world that’s happening right now, it seems like you guys have outlined a system that is sort of, as we’ve mentioned earlier, sort of fundamentally broken from top to bottom, but is there a place… Do you see something as sort of the most easy first step, especially right now, that there’s something we can do is the most practical and maybe popular, given what’s happening? First step that we can start moving and then just start slowly trying to get the incentives aligned because there’s a lot of work that needs to be done.

48:28 Chris Surprenant: Yeah, absolutely, and this is going to be one of the benefits, I hope, that comes out of this COVID-19 situation because, I guess, people forget that we’re still going through a pandemic right now, through all the protests and everything else, but one of the things that a lot of municipalities were doing was letting people out of prison to stop the spread of COVID-19 because they were worried about it spreading in the prison and it being uncontrolled and everything else. And I think we’re gonna see and we’re gonna get a great amount of data on how many of these people that they let out don’t re‐​offend and so under normal circumstances, it would have been impossible to push through regulations, or otherwise allow people, or allow the governors, or allow some of these sheriffs to let these people out of prison, but we’ve been given a wonderful opportunity to see what happens. And I think what you’re going to see is you’re going to see that the sheriffs and the people who are running these prisons are able to, in almost all cases, identify people who now pose no danger to the community.

49:37 Chris Surprenant: I think you’re gonna see an absurdly low recidivism rate from the people who were let out of prison because of COVID-19. And so one of the things that I hope happens from this is people start thinking, “Well, wait a second. If all of these people got out and none of them re‐​offended, why are we paying all of this money to keep these people in prison? Aren’t there alternatives?” Even if we think someone’s done something wrong and should be punished and that that punishment should extend over a significant period of time, is it really appropriate for us to be spending tax dollars to keep this person in a cage when they pose no physical danger to other people in the community? And I’m hoping that the answer to that question is no, and we can start having an intelligent discussion about alternatives, but without the coronavirus, without this opportunity to let all of these folks out of prison, I don’t see how you can that discussion.

50:29 Chris Surprenant: I mean, you start looking at states like Louisiana where sort of progressive governors come in and they start trying to let people out of prison early, and so our governor did this and so he found a bunch of people who had been in prison, on average, 7 1/2 years, and who were set to be released within the next six months. And they released a bunch of people just to see if they could identify who the people were who were less likely to re‐​offend. 98.5% success rate. It’s extraordinarily good, yet, when you start looking at the headlines of the newspapers, it’s like eight violent criminals were let out into our society and so I think this is the problem. I think we’re gonna see a lot of good data and it’s gonna be… It’s given us an opportunity to try some things that we couldn’t have tried otherwise, but the challenge is gonna be, how do we frame the results which will almost certainly be positive in ways that allow progress to take place? And I think that’s gonna be one of the challenges coming out of this, even though it’s a great opportunity.

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51:40 Aaron Ross Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple Podcast or on your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.

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