21 May 2008

National Disgrace #1: Massive Incarceration

The Objectivist
Dunkirk-Fredonia Observer
May 12, 2008

The biggest issue facing the United States is not confiscatory tax rates, looming social security-Medicare insolvency, global warming, or exiting Iraq. It’s the ocean of people that our government incarcerates. A major part of the problem is drug prohibition which is producing a torrent of prisoners.

According to the Adam Liptak of the New York Times, roughly 1 in 100 adults in this country are locked up (about 2.3 million people). For example, if you went to a school that had 1,000 people in it, 10 would be imprisoned at any one time and far more would be imprisoned sometime during their lifetime. In comparison to our international brethren, the United States clearly loves locking its people in cages. The United States has less than 5% of the world’s population but about 25% of its prisoners. We have 700,000 more people imprisoned than China despite its having four times more people. We incarcerate people at roughly 5 times the rate of Great Britain, 8 ½ times the rate of Germany, and 12 times the rate of Japan. In fact, the U.S. imprisons people nearly 6 times more often than do other nations.

This is only in part due to a greater rate of crimes with victims. While the U.S. does have a higher murder rate than many nations (about four times the rate of Western Europe), it has lower rates of non-violent crimes with victims. For example, it has a lower burglary and robbery rate than Australia, Canada, and England. In addition, the explosion in incarceration has occurred in part over the last thirty years during which time violent crime has declined. The increase is in part due to the longer sentences that are given to American prisoners. For example, Marc Mauer of the Sentencing Project notes that burglars get sentences that are more than twice as long as some of our peers (16 months in the U.S. versus 7 months in England and 5 months in Canada).

Among minorities, the U.S. criminal justice system is like an occupying military force. At any one time, it incarcerates 1 in 9 black men and 1 in 36 Hispanic men, and a much higher rate over their lifetime. According to the U.S. Census Bureau, roughly 3% of all Americans in 2005 (7 million people out of 230 million adults) were under the control of the criminal justice system in that they were incarcerated or on probation or parole.

One of driving forces behind this national lockdown is drug prohibition. Today there are almost 500,000 people incarcerated for drug crimes. These sentences are also harsh. Drug offenders average sentences of almost 7 years. The sentences are lengthier than that given out for assault (3.7 years) and larceny (2.6 years).

The massive drug crackdown is also a recent phenomenon. As recent as 1975, the incarceration rate was 15% of what it is today (in per capita terms). Even as late as 1980, there were only 40,000 people incarcerated for drugs.

In terms of arrests, in 2006, there were 1.89 million drug arrests (compared to 581,000 in 1980). More than 80% were for mere possession. Marijuana is worthy of special attention. More than 40% of the 1.89 million drug arrests were for marijuana possession. In 2006, there were 829,000 marijuana arrests and roughly 90% of those were for mere possession. Those arrested are simply unlucky given that nearly 80 million Americans have used marijuana and 20 million have done so in the last year. Now there are a number of reasons to legalize marijuana. One is that reputable sources like the prestigious European medical journal The Lancet has stated that it is reasonable to judge it less of a threat than alcohol or tobacco. Second, it endangers no one beside the user. One recent set of academics (Movig et al. in Accident Analysis and Prevention) found no increased risk for road trauma for drivers exposed to cannabis. Even if one doesn’t believe this, driving while on marijuana can be prosecuted without prohibiting marijuana in the same way we prosecute drunk drivers without prohibiting alcohol. Protecting citizens against themselves is about as American as locking up political prisoners or having an official state church.

In addition, the police state that supports the national lockdown is prohibitively expensive. For example, in the state of New York, the average working couple pays $3,040 in taxes to support the criminal justice system. This includes police protection, judicial and legal costs, and corrections. Here I am assuming that only one in two residents pays more taxes than they get in benefits and this includes children.

Such a police state includes an army of people to lock up and oversee locked up Americans. In 2005, there were 1.13 million people on police payrolls and 755,000 people on correction payrolls. Together they cost $7.5 billion. This massive number of people and dollars is troublesome for two reasons. First, it creates entrenched organizations that have an incentive to maintain the national lockdown as a way of ensuring job security and union revenue. This is similar to the way in which teachers’ unions fight tooth and nail to keep the spigot open and flooding the public schools with money.

Second, with dropping rates of violent and non-violent crimes with victims, police have to justify their salaries. One concern is that they will spend their time targeting activities like drugs, prostitution, speeding, and seatbelt use. A related concern is that because these are consensual activities, they often occur in people’s houses or other private property. As a result, the police will trample on civil liberties in order to get at them. The recent history of the Fourth Amendment’s protection against search and seizure shows that this is not an idle threat.

The general point is that locking up so many people is troublesome. The costs of doing so for victimless crimes like drugs, prostitution, gambling, etc. take the form of lives irreparably damaged, liberty lost, and money spent. Unless there is clear evidence that the benefits of doing so outweigh the costs, the prudent thing to do is to leave people alone. When this country places 3% of its population under the direct control of the criminal justice system, it is no longer the land of the free. And when a country so fears its citizens that it locks them up in droves, it is no longer the land of the brave.

07 May 2008

Constitution #3: Original Intent

The Objectivist
Dunkirk-Fredonia Observer
May 6, 2008

In a recent case, Baze v. Rees, 553 U.S. _____ (2008), the Supreme Court faced the issue of the methods by which states may execute criminals. The case raises the broader issue of how the Constitution should be interpreted.

In Baze, the Court faced the issue of whether Kentucky’s use of lethal injection violated the Eighth Amendment. The Eighth Amendment prohibits cruel and unusual punishment. Thirty-six states impose capital punishment and at least thirty and the federal government use lethal injection. Lethal injection takes the form of three drugs. The first induces unconsciousness and is intended to prevent pain, the second induces paralysis, and the third induces cardiac arrest. Lethal injection replaced electrocution as the favored method of execution in the 1970s. Other historical methods have included hanging and the gas chamber.

Two death-row inmates (Ralph Baze and Thomas C. Bowling) sued, claiming that their sentences violated the Eighth Amendment. They argued that Kentucky’s procedure created an unnecessary risk of pain. They further argued that whether pain was necessary was a function of the amount and likelihood of pain and the availability of other procedures.

The Court opinion was written by Chief Justice Roberts and joined by Justices Kennedy and Alito. Roberts argued that what the Amendment prohibited was exposing those sentenced to die to an objectively intolerable risk of pain. He noted that three-drug injection is believed to be the most humane available and that it is painless if done right. Because the risk that it will be done incorrectly and thereby produce a painful death is small, it is not objectively intolerable. In addition, the prisoners’ suggested alternative method is untested and has problems of its own. Hence, Roberts concluded, the three-drug method of execution satisfies the Eighth Amendment. In effect, then, Roberts held that a method of execution violated the Eighth Amendment if it imposed a substantial risk of severe pain that could be reduced by adopting a readily available alternative.

In concurrence, Justice Thomas, joined by Justice Scalia, ripped Roberts’s holding. Thomas argued that such a rule did not align with the original understanding of the Amendment, conflicted with previous cases, cast doubt on long-accepted methods of execution, and required the Court to face issues of pain testing and management that were outside its expertise. Thomas argued that the Court should adopt a rule guided by the original intent of those who wrote and ratified the Constitution. He argued that their intent was to prevent methods of execution that are designed to inflict pain. In particular, the Amendment aimed to prevent punishments such as burning at the stake, crucifixion, breaking on the wheel, emboweling alive, and so on. To show this he looked at the practices in the late 18th Century, a dictionary at the time, the debates on the Constitution, and statements on it by early commentators. He concluded that the Amendment prohibits execution-methods that were designed to inflict torture, that is, ones that intentionally inflict gratuitous pain.

As University of Illinois School of Law Professor Michael Moore has noted, the notion that the Constitution should interpreted in accord with original intent has a number of problems. First, some of those who wrote and ratified the Constitution sometimes had different intentions. Some intended that certain things be prohibited (for example, burning alive, the rack, etc.), others intended certain kinds of acts be outlawed (for example, torture), and still others had certain goals in mind (for example, avoiding gratuitous pain). It is hard to see how these different types of goals can be combined into a single rule.

Second, it is not even clear if a group of persons can have intentions. Intentions are mental states and a mental state is a feature of a single mind. Because groups don’t have a single mind, they don’t have an intention. Different individuals might have separate intentions, but then it is not clear how they should be combined. For example, it is not clear if we should look at the intentions of every legislator regardless of whether he voted for the bill in question, the intentions of those who voted for it, or the intentions of those who voted for it and read the bill (rather than just the title of it), or some other group.

Third, there is at least some evidence that those who framed and ratified the Constitution intended that their specific intent about a bill not be given much attention. That is, respecting their intentions might in a strange way require that we ignore their intentions. Instead, they probably preferred that judges and others attend to the plain meaning of the statute and other factors beside intent.

Fourth, focusing on intention prevents the public from having fair notice about the law. Few besides crusty-old historians know what the Constitution’s framers and ratifiers intended. This problem is a serious one when we consider that law is supposed to be something that is public and not something private like what was going on in James Madison’s head.

However, it is not clear what other means of interpretation can be used to decide cases when applying clauses that apply general notions like equal treatment, due process, and reasonable search and seizure. A paradigm case of this can be seen in Justice Stevens’s concurrence in Baze. In his concurrence, Stevens argued that “[T]he imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” How this is relevant is anyone’s guess.

On a side note, economist John Lott, Jr. in Freedomnomics, points out that the majority of recent scholarly research indicates execution has a powerful deterrent effect (on Lott’s estimate, fifteen to eighteen murders per execution) and accounts for significant amount of the overall drop in murder in the 1990s (Lott estimate 12-14%). If these studies are even approximately true, Stevens's statement is woefully uninformed.

However, the broader notion is what standard Roberts, Stevens, etc. are relying on in deciding what punishments are cruel and unusual. Clearly the phrase cannot be taken literally because no justice would argue that torture applied regularly is Constitutional because it has become usual. If Stevens substitutes his own word (for example, “torture”) or goal (for example, avoiding gratuitous pain) to interpret the Amendment, he is making law, not interpreting it.

While focusing on original intent has serious conceptual difficulties, it is not clear what the alternative is. When judges seek to interpret the law rather than make it up, they have to discover some pre-existing rules and principles and given the vagaries of language it is hard to see how this can be done without appealing, at least in part, to original intent.