Nobody likes that the US has the highest (second-highest after Seychelles?) incarceration rate in the world. But attempts to do something about it tend to founder on questions like “So, who do you want to release? The robbers, or the murderers?” Ending the drug war would be a marginal improvement but wouldn’t solve the problem on its own. And I’ve had trouble finding other ideas that engage with the reality that people are going to prioritize safety over reform and anything that significantly increases violent crime is a likely non-starter.
This was why I was interested to read the scattered thoughts in the effective-altruism-sphere about bail reform.
(source)
About a fifth of the incarcerated population – the top of the orange slice, in this graph – are listed as “not convicted”. These are mostly people who haven’t gotten bail. Some are too much of a risk. But about 40% just can’t afford to pay. They are stuck in jail until their trial, which could take a long time:
Length of time that defendants spend in jail before trial (source). Although 50% are out by day 7, 25% are still in by day 50, 10% are still in by day 150, and one was still in after three years
I talked to a correctional psychiatrist a few weeks ago who was telling me that conditions for inmates awaiting trial were worse than conditions for already-convicted inmates. The convicted inmates get officially integrated into whatever prison they’re in and receive various jobs and privileges. The inmates awaiting trial just sit in their cells doing nothing.
People who commit serious crimes might be looking at years or decades in prison. Do the few months they gain or lose because of bail really make that big a difference?
Yes. First, because most people aren’t looking at decades in prison. This article tells the story of a man accused of attacking some police officers; he claimed innocence and expected to be vindicated at trial. Prosecutors offered him a plea bargain of sixty days in jail, which he refused. But he ended up spending more than sixty days in jail waiting for trial, which kind of defeated the point.
Second, because much of the time this ends in people just taking the plea bargain. For example, the man in the article above almost took the plea bargain after serving sixty days in jail – an understandable choice, since it let him walk free immediately with time served. But this would put a guilty plea on his record, which would make it harder for him to get jobs in the future and reframe any further crimes he might commit as “repeat offenses”. If his case goes to trial, he might have been be found not guilty and avoid the black mark.
Third, because people who are detained pretrial end up getting longer sentences. Some of this seems to be because they’re less able to contact their lawyer and prepare a good defense. Some more seems to be related to prosecutors setting harsher plea bargains for imprisoned defendants because they have a worse bargaining position. And some more might be related to psychological factors where judges think of people who just showed up from jail as “more criminal” than someone who came to the court from their home.
This legal advice site advises suspects not to stay in jail before trial even if they don’t mind the environment and just want to get it over with. It confirms my friend’s suspicion that jails are worse for people awaiting trial than for convicted offenders, but also notes some other interesting aspects. People in jail have a bad habit of making incriminating statements that get reported and used against them on trial. Suspects out on bail can rack up prosocial accomplishments to list off at their trial – they give the example of going to a counselor and making restitution to victims. And they get the option to delay their case until the trail grows cold and prosecutors get bored and everyone just agrees to a lesser sentence.
(something I didn’t realize which is relevant here: 96% of felony convictions involve guilty pleas. Plea bargaining is the rule, not the exception, and anything which makes it easier or harder is going to impact the large majority of cases)
There have been a bunch of studies trying to determine to what degree bail vs. pretrial detention affects case outcome. Some early studies like this found that it could alter sentence length by about ten percent, but the data were necessarily not very good – there’s no way to randomize suspects, and the sort of hardened criminals who don’t get bail are the same sort of hardened criminals who maybe deserve tougher sentences. People tried their best to control for all observable factors, but this never works. Better is Gupta, Hansman & Frenchman, which tries a quasi-experimental design based on suspects’ random assignment to more or less strict judges who are more or less likely to demand lots of money for bail. Suspects who are assessed bail are 6% more likely to be convicted (they’re also 4% more likely to reoffend, which is weird but might be related to imprisonment hardening criminals and increasing recidivism). Stevenson tries a similar method and finds that inability to make bail produces a 13% increase in convictions, mostly through more guilty pleas.
This study also finds that size of bail was less important than whether there was bail at all, which confused me until they pointed out that most suspects are really, really poor. As per the Stevenson paper:
Some of these defendants are facing very serious charges, and accordingly, have very high bail. But many have bail set at amounts that would be affordable for the middle or upper-middle class but are simply beyond the reach of the poor. In Philadelphia, the site of this study, more than half of pretrial detainees would be able to secure their release by paying a deposit of $1000 or less, most of which would be reimbursed if they appear at all court dates. Many defendants remain incarcerated even at extremely low amounts of bail, where the deposit necessary to secure release is only $50 or $100.
The New York Times notes that
Even when bail is set comparatively low – at $500 or less, as it is in one-third of nonfelony cases = only 15% of defendants are able to come up with the money to avoid jail.
And from here:
The guy in the NPR article above – the one who might or might not have attacked some cops – was in jail for 60 days because he couldn’t make bail of $1000.
So bail causes people to be stuck in jail for months, increases guilty pleas independent of defendants’ actual guilt, and causes more convictions and longer sentences. Since many of the people harmed by this are innocent, or deserve less punishment than they end up receiving, this seems like an important point of leverage at which to try to fight incarceration. On the other hand, bail is supposed to serve a useful purpose in preventing suspects from running away. It is possible to do without?
Maybe. Washington DC is one of the highest-crime areas of the country, but it uses an alternative system without monetary bail which uses an algorithm to calculate risk, releases low-risk people, and keeps high-risk people imprisoned without bail. It looks like about 10% of Washingtonians, versus 47% of other Americans, are detained in jail pre-trial. Of Washingtonians released without bail, 87% show up for all court dates, and 98% avoid committing violent crimes while free.
I’m not able to find a good comparison between Washington and other jurisdictions, but this page on bounty hunters gives the unsourced statistic that 20% of people on bail fail to show up for court anyway. This equally-credible-looking site gives an equally unsourced statistic of 10%, and notes that these people are more likely to be flakes who forgot their court date than supercriminals who have donned a fake mustache and are on their way to the Cayman Islands. These numbers suggests that Washington’s no-show rate is about the same as everywhere else’s.
Bronx Freedom Fund is a charity that helps people pay bail. They claim that 96% of the people whose bail they pay show up to trial, which matches the numbers from Washington and the numbers from normal places where people have to pay their own bail. I am sure they select their beneficiaries very carefully, but if it’s possible to select a group of people who are definitely going to show up to their trial whether they can make bail or not, why are those people still in jail?
I can’t find any studies clearly proving this, but it looks like there’s no obvious and proven tendency for bail to improve show-up-at-trial rates, and some evidence that with good risk assessment and selection 90% of people released without bail will show up to trial, which may be around the same as the rate for people who do get bail. This would make all of the problems with bail not only outrageous but pointless, not even the unfortunate side effects of a generally-reasonable policy.
It looks like there are two possible solutions – one small and short-term, the other systemic and long-term.
In the short term, there are some great charities – like the aforementioned Bronx Freedom Fund – that pay people’s bail. If the people show up to trial (which, again, 90% or so do), then the charity gets its money back and can use it to pay more people’s bail, ad infinitum. This makes them very high-value per dollar.
I’m not sure how much to trust BFF’s self-reported statistics. I see that on their front page they mention that “defendants who await trial in jail are 4x more likely to be sentenced to time in prison”, which is much more than any of the studies above report and which is probably a misleading uncorrected raw estimate. I see they say that “$39 can help us secure someone’s freedom”, which since average bail is something like $500 and only 2.8% of bails are less than $50 might be more of a “this is the lowest bail that has ever occurred in history” than any kind of representative estimate. But I don’t really hold it against them to give technically correct but misleading numbers in an advertising pitch. The question is – what are the real numbers? GiveWell and Open Philanthropy Project have been looking at them, but I can’t find a complete writeup, so let me do a terrible and very approximate job of trying to estimate them myself.
They note that their average bail is $790. Supposing that their 96% success rate is true, the average case costs them $30 – they cite a similar figure in their own literature. If, as they say, the average pretrial detention period is 15 days (which more or less matches the chart above), they can keep someone out of jail for $2/day even without selecting the worst cases.
They also note that their clients get cleared of all charges about half the time, compared to only 10% of the time for people in jail. I don’t know how much of this is selection effects, but suppose we take it at face value. And suppose that an average prison sentence for whatever kinds of petty crimes these people commit is two months. That means they’re saving the average suspect about 25 days worth of prison sentence, and improves their cost-effectiveness. I’d say this comes out to about $0.75 per jail day prevented, but that might be double-counting some people who, had they been in jail, would have had the time deducted from their sentence. Let’s say somewhere between $0.75 and $2.
A confusion: their 2014 annual report notes that they received $53,000 in donations and helped 140 people, suggesting a cost of $380 (not $30) per person helped. In 2015 they helped 160 people with $120,000, suggesting a cost of $750 per person that doesn’t seem to improve with scale. A similar organization, Brooklyn Community Bail Fund, got $404,800 from Good Ventures, and boasts of helping 1,100 people, for $367/person (this is a very rough estimate; it assumes this is all in the same year and they got no other donations).
I’m not sure why these numbers are so much bigger than the ones derived from first principles, but taken seriously, if we continue to assume that each successful case saves an average of forty days in jail, they prevent a jail day for about $10.
We compare to other efficient charities. GiveWell thinks it takes antimalaria charities about $7500 to save a human life. If that person lives another 20 years, that’s about $1/day.
So using their own numbers, these bail-related charities might be able to prevent imprisonment at the same cost-per-day as other charities can save lives. Using less optimistic numbers, they might be able to prevent imprisonment at about ten times the rate. Depending on where you fall on the death vs suffering philosophical tradeoff, this might be attractive. I’m confused these charities haven’t received more attention, if only to debunk them properly.
And even though everyone likes to talk about how individual charity doesn’t work and only systemic change can make a real difference, paying the bail of 50% of the people in the United States currently awaiting trial would be well within the abilities of one philanthropic-feeling billionaire, after which the money could be recycled again and again for the same purpose. I agree this is a kind of hokey calculation since it doesn’t include the overhead cost of getting the money to the suspects, but it’s still shocking how small the amounts involved are compared to other social problems.
In the long-term, we probably need some kind of criminal justice reform. The Obama administration seemed to be pursuing some kind of fourteenth amendment argument to get a court ruling that monetary bail was illegal. Some libertarian groups like Reason and the Cato Institute are on board. Some charities, like Equal Justice Under Law, are supporting the same cause.
I don’t think that bail reform is the largest or most important change that could be made to the US criminal justice system. But I think it might be tied with drug reform for the easiest. And given how well politics has been going lately, this might be a good time for lowered ambitions.
The most impactful criminal justice reform is arguably better care for young children.
There is a program that results in:
– 59% reduction in arrests among children
– 72% fewer convictions of mothers
– 48% reduction in child abuse and neglect
– 56% reduction in emergency room visits for accidents and poisonings
– 67% reduction in behavioral and intellectual problems among children
– $41,000 savings in government spending per child served (the program costs about ~$6,000) resulting in a 570% return on investment
What is the program? Nurse Family Partnership
How does it work? A first-time pregnant mothers is paired with a free personal nurse from their first trimester until the child is two years old
How has it been assessed? By three randomized controlled trials with up to 18,000 participants (not a bad n). See here
As far as I am aware this is one of the most effective social interventions for the United States. Happy to be shown others that have equally impressive results and have undergone similarly rigorous analysis.
I’ve seen BFF (Bronx Freedom Fund) present a couple of times, and have visited a bronx arraignment court. Disclaimer: I have supported them financially, and expect to in the future. I have not independently verified their numbers, but I can shed some light on the approach I understand them to be taking. Any errors are mine.
(I encourage you to email me if you want an intro to the Executive Director who could answer a lot more of this a lot better than I can. I’ve also passed this on to him and encouraged him to post or reach out.)
1. $39, or whatever in that ballpark, to keep someone out of jail, is the average forfeited amount for bailing someone out, i.e. if they pay $1000 in bail and 3.9% of the time it is forfeited, the average cost would be $39. This does not include foregone interest for 6-ish months, or the overhead of paying and retrieving the bail.
2. The $300-400 numbers for money raised / people served, is mostly the cost of running around to courts with a bag full of certified checks and paying bail. The obstacles to doing this efficiently (for them, or just a friend/family member) are egregious. There are other activities as well, they can describe them better than I can.
3. The change in outcome numbers (I’m assuming they’re all above board) are too significant, and too large a portion of the total population, to be explained by cherry picking. If before BFF 90% were convicted, and they bail out 20% of whom 10% are convicted, the situation surely changed. They have gained some scale and are now bailing out enough that either their numbers will drop precipitously, or the change in outcome will be undeniable.
4. Even a few days in jail awaiting trial can lead to job loss. Obviously a conviction is a serious issue. The positive effects of avoiding pre-trial detention and resolving the matter without a criminal conviction go far beyond the 15 or however many days out of jail.
[By the way “show up for all your appearances” if it gets pursued is a number like 15 or 20 over several months. ]
5. There are other benefits, such as reducing the substantial costs to the city (supposedly averaging $670/night — there may be material quibbles with that number, but there’s surely some significant marginal cost to the city).
6. The real goal here is not only to pay one bail at a time, but to gather data and experience that helps reform the system. This can happen in small ways, such as concentrated lobbying for something as basic as an ATM in the building (seriously, the hurdles to making payment are awful), or larger ways such as providing evidence (e.g. to a recent decision in Houston), or technical assistance to other bail funds. BFF should hopefully put itself out of business in the Bronx, which would “capitalize” a ton of benefit without ongoing operating cost.
The larger the claimed effect, the more I believe it is due to cherry-picking.
What do you mean by “too large a portion of the total population”? BFF bails out very few people, so it is very easy for them to pick the cherries.
Scott mentioned quasi-experiments showing 5-15% reduction in conviction rates from bail.
They are now bailing out a meaningful fraction of those eligible (NY law limits charitable bail to $2000). There is a lot of randomness that winnowed the population also based on where they got referrals from and just the logistics of having one full time person.
There’s some fraction and some result beyond which cherry picking cannot mathematically do all the work. They probably were not there in 2015 (when the evidence is merely compelling), but I believe they will be this year.
I don’t think the national results are representative of what to expect from this population.
It’s worth mentioning that New Jersey recently eliminated cash bail, and other states like Pennsylvania seem to be moving in that direction.
And yeah, I agree that this is low-hanging fruit. Along with bail and the drug war, we also should move towards reducing overly long prison sentences for nonviolent property crime, and putting more resources into rehabilitating people and reducing recidivism. Our whole probation system is kind of a mess too, there are way to many stupid traps built into it that end up in people on probation going back to prison over really minor or pointless issues.
Poor people have a smaller stake in society. They have less to lose (fortune, social position, career, rank) and may thus be less likely to care about the consequences of their actions — more likely to be violent, to brawl, to commit petty thefts, to commit vandalism, to use drugs, etc..
For well-off people, the incentive for proper behavior is provided by the threat of firing, social ostracism, public opprobrium, bankruptcy, divorce, etc.. This need not work for lower-class people.
Thus, they may need a different sort of incentive for proper behavior. This is currently provided by the certain knowledge that they won’t get a free pass from the justice system for such deeds, as they lack the money to make it work for them.
Bail reform will almost certainly lead to substantially more petty crime, since poor people will have much less to be afraid of.
I’m surprised by how isolated this whole discussion is from any shred of historical context. Has the U.S. been this kind of outlier in incarceration rates for ten years? Fifty? A hundred? I’m not asking rhetorically; I really don’t know. But it seems germane, if only because it might make it easier to associate it with whatever cofactors might help explain it.
I did allude to there being an apparent move away from institutionalization for criminals with mental problems earlier, but again, the history of that is not something I follow. (I was half hoping someone else with more familiarity would expand on or refute it.)
Scott covered that here: https://slatestarcodex.com/2016/03/07/reverse-voxsplaining-prison-and-mental-illness/
Thanks. That’s pretty comprehensive, and I’d forgotten he’d posted that. I’m not 100% sure I’m convinced, but I’m sure not convinced of the opposite, either.
My experience: https://jasonboisvert.blogspot.com/2016/03/adventures-in-incarceration-2.html
How is the bail amount calculated?
Also, how much does it cost to jail someone for a day? I guess that 60 days of incarceration will cost a lot more than 50 or so dollars anyway, so that seems to be a net loss even if we disregard the accused and are only concerned with the taxpayer’s money. And of course, as long as they actually go to court, it seems that they get reimbursed for most of the cost anyway.
Btw, are the people who did not pay bail and who were then freed of all charges reimbursed for the time they had to spend in prison? I guess they aren’t but they should be.
Ha ha, no. We’re lucky they don’t require them to pay for the room and board. Oh, wait…
(Useful context: their Form 990s, on guidestar)
1) You would expect for substantial amounts of money to not be spent each year, since bail gets returned. That is to say, to some extent the limiting factor is likely not the amount of money, but rather the amount of time the money spends locked up + their ability to find and evaluate people to pay bail for.
2) Not sure where the second figure came from (I mean, I see it in the link, it just doesn’t match up with their tax returns); their 2015 form 990 lists $46,832 as their total revenue. Possibly a big late donation received after the tax year ended that they wanted to boast about or something?
(The 2014 letter and Form 990 match up.)
3) Here’s a summary of the Bronx Freedom Fund’s 2015 spending & assets:
$23,391 – “Professional fees and other payments to independent contractors” (presumably paying people to evaluate potential candidates, supporting other organizations in setting up similar funds, and general administrative spending)
$5,940 – Other spending, including as $603 on “bail bond expense” and $3,368 on “insurance”
They ended the year with $192,793 in assets, of which $65,460 was money used to pay for bail (which they expected to get back, and which was therefore an asset) and $128,533 was cash. Between 2010 and 2015 they received $214,989 in total donations, and gained $40,723 in assets.
$603 + $3,368 = 3,971; 160 people helped in 2015 suggests a bail-only price of ~25 dollars per person, very close to Scott’s guestimate of ~30/case.
By the way, here’s a criminal justice reform that I’ve never heard anybody suggest: take the juries out of the courtroom. Lawyers and judges are very busy people, so they only carry on trials about 4 or 5 hours per day, and a lot of that is inadmissible to the jury.
So, videotape the trial without the jury present, delete all the parts that were ruled inadmissible, and then call the jury in and show the videotape to them in 8 hour a day stretches. The one jury I served on took two entire work weeks, but if we did it my way, it would have only taken us 13 or 14 people (with alternates) one week. That’s a savings of 13 or 14 individual-weeks.
Btw how much are you reimbursed for being drafted to jury duty? 2 weeks is a lot of lost time. And how high a fine do you have to pay if you don’t want to do it?
Looking it up, here in Portland, Oregon it’s:
$10 (9.00€) per day for the first two days;
$25 (22.50€) per day thereafter.
What? Isn’t that less than they’d pay you per hour at McDonald’s (on the first two days)? That’s ridiculous. Conscripts in in Switzerland are reimbursed 80% of their salary for the time when they have to do the training and it is supposedly considered good manners (i.e. most companies do it) that their employer (unless they’re self-employed obviously) cover the remaining 20%.
I don’t know what McDonald’s is paying right now, but it wouldn’t surprise me if that’s the case. The current federal minimum wage is $7.25/hr, and in Oregon it’s $9.75/hr. So if McDonald’s is paying nearly anything above minimum wage, it is probably paying more per hour than the county is paying per day for jury service. (They do pay for the transit ticket and mileage to get to the courthouse, but the transit is only $5.00/day for TriMet.)
The best part is, according to that website, if your employer pays you wages for the day despite jury service, you don’t get the $10.
Full-time employers in the States usually cover some jury time, but often not enough for a long trial without dipping into vacation time.
It seems fairer to me for the government to pay up, and that seems to have been the original intent. But the pay for jury duty was set at a time when eight bucks a day was a fair salary, and has not been indexed to inflation.
Why isn’t jury duty considered labor and therefore paid the minimum wage?
If you make it to actual jury selection and you really want to get out of it, just tell the lawyers that you hate cops (and make up a semi-plausible reason for it in case they follow through). They’ll drop you like a rock.
I just don’t register to vote. Much easier.
A lot of courts are now pulling from drivers’ license lists and other places, too.
They already did that 40 years ago. One of my parents got called up for jury duty due to having an American driver’s license, despite not being American.
I like this idea in principle, but it raises all kinds of questions about who watches the cameramen and the video editors. I can imagine all kinds of subtle ways to bias the presentation even if all the video is legit and unaltered. Editing is not completely mechanical either — what happens if somebody says something that refers to something that happened in the removed spans, which makes perfect sense to people who were there for the whole thing but is confusing or misleading to those seeing the edited version? Is the editor sharp enough to snip that out, too, and can that even be done without making the surrounding context incoherent?
Of course, it might be that in practice these considerations more than outweighed by removing the effect on the jury of actually hearing things they are directed to disregard; I’ve never understood how that would actually be possible. But I’ve never been on a jury.
Then you have to add the problem of how easy it is to make entirely fake video footage. How this would play out I don’t know. Would bad police departments start to do this, increasing bad convictions? Would juries be less likely to trust video, increasing bad acquittals?
I do sort of like the idea that a hung jury means you could just play the video for another twelve jurors, rather than having a whole new trial.
All those issues could be resolved satisfactorily, though. We now have court recorders making a transcript of the trial, and complicated rules for what evidence may be presented to the jury. It’s not like we couldn’t figure out how to deal with video footage. (Fake video is a problem, but it’s the same problem as fake evidence generally being accepted.)
It seems like this would have several big advantages:
a. Making jury duty less of a disruption in your life would probably make it easier to get people for jury duty–there would be less incentive for busy people to try to opt out. I don’t know how important this effect is, or how we’d find out.
b. Being able to rewind and replay stuff seems like it would work well for resolving questions about what happened. If you provided this plus a transcript, you’d have two different ways of getting the same information, which would probably lead to jurors doing a better job understanding what happened.
c. You could imagine having a process for rerunning a trial by simply choosing a new jury and showing them the footage–this would cost enormously less time and money than rerunning a normal trial. That leads to lots of nice things like:
(1) When there’s an appeal and some piece of evidence is thrown out or something, you might often be able to simply black out that part of the testimony with a notice that this evidence was excluded on appeal, but not have to rerun the whole trial.
(2) You could automatically rerun the trial with a new jury in death penalty cases, or when there’s a mistrial.
(3) You could even do some statistical rerunning of trials with new juries to see what fraction of the time you got the same answer, which would be nice for quality control.
d. Changing the venue of the trial would be enormously less expensive–you could do the trial locally, and then if you needed to do so, you could find a jury somewhere far away. And again, if an appeals court decided there was a problem with your jury, there’d be an easy fix.
e. It would make trials actually accessible to the public–instead of having to go to the courthouse on a given day, you could view video of a trial when you wanted to. You could also randomly sample trial footage to see how judges, prosecutors, etc., were doing their jobs.
I don’t know enough to know what the downsides would be.
Wow, those are much better reasons for my idea than the ones I came up with!
Another possible reform would be to speed up pre-trial dawdling.
Caveats: I’m in California. Which is not the Bronx. I am a criminal prosecutor, but I do not know New York law. Sometimes state laws are predictable; bail laws and practices vary widely and I may be making inferences that are invalid. I base none of this on any special knowledge I have about Bronx Freedom Fighters.
First off, BFF’s claims don’t seem credible to me.
BFF claims that 55% of clients get a dismissal of all charges, and another almost-40% get something similar to a traffic ticket. That leaves 5% of the people who make bail on a misdemeanor getting misdemeanors, while 92% of the people who remain in jail settle their cases, of which the majority (at least 46%) end up with a criminal record, which I’ll assume is a misdemeanor. (“Likely,” a criminal record.) BFF has the bail fund for only misdemeanors.
Let me just say that if that’s true, it’s appalling – a misdemeanor conviction rate at least *nine times* higher for people in than out. I don’t believe it. I think BFF is lying to us, and I base that solely on the claims they make. I’d love to see the raw data.
There are ways to get partway there just by minor lies: If you’re making bail for people who have been arrested but not charged with crimes, some percentage of them will not be prosecuted. If you then compare that to people already charged, you can move the needle. Still, that’s a big number.
Alternatively, they’re only making bail for a small subset of misdemeanors, misdemeanors that are likely to resolve informally.
Further alternatively, “dismissal of all charges,” could be referring to some process of expungement or dismissal after a guilty plea. If this is part of it, that’s dishonest.
BFF’s claim that they have a 96% record of “attending all their court dates,” seems unlikely to me, too. This gets complicated and I DO NOT KNOW NEW YORK LAW and I am too lazy to look it up, but usually attorneys are allowed to appear for their clients in pretrials on misdemeanor cases, so while the defendants don’t fail to appear, neither do they “attend all their court dates.”
Here’s what happens in my area of California:
You commit a misdemeanor. Most of the time, you’ll sign a promise to appear. If you have past warrants or you’re real drunk or you decide the best course of action is to run from the cops, you get hooked. Bail gets set at schedule. If you don’t have money, you don’t bail out. The percentage of in-custody misdemeanants in my jurisdiction is very low. Some fraction are held a few days until arraignment, but almost all of them are released at that point.
If you are arrested for a felony, you’re far more likely to get hooked and stay in.
The other item here is those discussions of people held for a very long time without trial are not exercising their speedy trial rights. In California, you have a right to a misdemeanor trial if in custody within 30 days, and a right to a felony trial in about 75 days. (Felonies have two separate steps, totalling about 75 days.) The reasons people stay in for a long time – sometimes a very long time – is often that their defense attorney is hoping the prosecution loses witnesses/gets tired/loses focus/whatever.
Also, in California, most inmates serve their time in local jails. You can’t go to prison without doing something very nasty; if you’re a recidivist methamphetamine manufacturer, you can’t go to state prison without a violent or serious prior conviction, or if you’re a prior sex offender. (Fun fact: Simple possession of meth in California with a prior for armed voluntary manslaughter is a misdemeanor. If you have a prior for indecent exposure though, you can go to state prison. Logic!)
Bail in some states is less regulated than in others. In some states, the bonds company can charge what they want. If there’s a $50K bail, and you’re a good risk to show up, the bail bond company charges you based on risk and profit. In California, the rates are statutory (10%, but you can do it on credit sometimes.)
Those who make higher bails tend to be lower risks to run. When they do run, they get caught more. Bail bond companies do not losing $100K. (The company forfeits the bond in California if the defendant doesn’t show up and isn’t delivered back within a year; that’s an oversimplification, but it’ll do. The bail companies will find you and be unpleasant about it when the money’s big.)
I’d love to see the Bronx numbers on what percentage of misdemeanants are granted OR release by the courts vs. the number held on bail. Anyone have that data?
I am imagining some stuff here, but I expect that one thing that BFF would do is send out volunteers to knock on doors on make sure people show up instead of flake out, since BFF’s money is on the line.
According to Pew Research Center about 35 and 46% of respectively property and violent crimes are reported to the police. The fraction of the reported crimes that is cleared by the police is respectively below 20 and 46 per cent.
Taking 1:4 ratio of violent to property crimes in Washington DC, we can make a first order estimate of the actual crime rate. If 2% were arrested for violent crimes then about 10% actually committed a violent crime and about 50% committed either violent or property crime while free.
You seem to by making the assumptions that those are the only classes of crimes.
Anyone arrested for a few grams of [insert substance here] wouldn’t be in those numbers and those are neither violent nor property crimes so wouldn’t show up in the Pew numbers.
You’re also making a lot of other strange assumptions, such as assuming that crimes are evenly distributed and that people who’re on bail are representative of the set of all people who commit crimes.
For example if there was some subset of people who are both responsible for a disproportionate fraction of unsolved crimes and are also less likely to get caught (lets call them “the most competent criminals”) then that destroys your estimate since they’re less likely to be part of the set of people on bail.
The lack of people looking at non-US bail systems is kind of screwy. Other countries have functioning bail systems, few are as fucked up as the US one.
Take the UK system for example.
“You can be released on bail at the police station after you’ve been charged. This means you will be able to go home until your court hearing.
If you are given bail, you might have to agree to conditions like:
living at a particular address
not contacting certain people
giving your passport to the police so you can’t leave the UK
reporting to a police station at agreed times, eg once a week
If you don’t stick to these conditions you can be arrested again and be taken to prison to wait for your court hearing.
You’re unlikely to be given bail if:
you are charged with a serious offence, eg armed robbery
you’ve been convicted of a serious crime in the past
you’ve been given bail in the past and not stuck to the terms
the police think you may not turn up for your hearing
the police think you might commit a crime while you’re on bail”
The surety system also doesn’t require people to have cash up front. A person stands as a surety, and pledges that they will pay x amount of money if the person doesn’t turn up to court. This is only put in place if the police think the person is a flight risk etc. and that the surety system will make them turn up. This means that it doesn’t just fuck over people who don’t have cash savings, and you only have to pay if you actually disobey.
I mean, seriously, sticking people in prison because they can’t pay is fucked up. And there are other systems which seem pretty functional. Justifying things before you fuck up people’s lives is important.
Putting a genuinely innocent person in prison for weeks/months only to clear them of all charges seems like a great way to produce criminals. I mean, imagine: you’re an employed, law abiding citizen who’s been falsely accused of something. You get arrested with no warning, and while you sit in prison your children are taken into foster care (because you’re a single parent and you can’t look after them from prison), you loose your job, and your home. You get out, and you’re quite rightfully pissed off at the justice system, homeless and unemployed, and are going to have to fight to get your kids back (lawyers fees). And the guy you’ve been sharing a cell with for the last two months has been telling you about how easy it is to make money breaking into houses.
Innocence until proven guilty is a really, really important part of the justice system. Actually judging how much of a flight risk someone is before you demand money should be fucking standard.
Instead, it fucks over people who don’t have close friends or family. Not sure that’s an improvement.
Seems like a marginal improvement to me – trustworthy individuals who would be a net positive to society are more likely, all else equal, to have friends willing to stand up to them.
It’s nowhere near ideal… but I’m thinking it might still be better than the current system.
Trustworthy individuals who would be a net positive to society are more likely, all else equal, to engage in commercial trade of the sort which results in monetary income. And money is fungible, whereas family ties are vulnerable to random chance.
Family ties are not all that random. Trustworthy individuals are likely to be related to other trustworthy individuals, because of genetics.
Everybody starts with a family. Almost everybody, even untrustworthy criminal types, in some contexts especially untrustworthy criminal types, starts with a family willing to bail them out of jail or whatever. Whether your parents e.g. get hit by a truck when you are twelve, is mostly down to luck.
@John Schilling: Unless your name is Bruce Wayne. Although, then you should have enough money for a bailout anyway 🙂
One easy-to-reach improvement would be to try to shorten the time between arrest and trial. That requires more resources, but probably not enormously more resources. Suppose we change things so that instead of spending 45 days in jail before going to trial (where not being able to make bail or convince a bail bondsman you’re a good risk= staying in jail), you stay a week in jail before going to trial. Then not being able to make bail is much less of a big deal.
More resources going to processing cases, fewer resources going to maintaining jails. Might end up costing more or less overall.
Surety isn’t always used, the whole point is that there are multiple systems. So if someone says ” I haven’t got anyone who would trust me to turn up at court”
Surety isn’t always used, and it doesn’t have to be. The whole point is that there are other systems.
So when untrustworthy jim says “nope, no one trusts me to turn up to court”, they can use other systems, like tagging.
And the court has processes for talking to the surety about repayment if the person doesn’t turn up. So that they aren’t just fucked over and ending up in debt. Kind of like fine repayment?
In most cases, you don’t have to put a financial penalty in place to make people turn up. Not turning up to court looks bad, has consequences, etc.
People who aren’t trusted not being able to get bail is still a way, way better system than poor people not being able to get bail. hitting the people likely to actually be a problem, rather than the people least likely to be able to cope, is a better option.
Freedom from arbitrary detention is really, really important.
Scott (and everyone else interested in plea bargaining).
IMHO, the first place to start is this 1978 article by John Langbein, Torture and Plea Bargaining.
Langbein argues that the medieval system of tortured confessions was driven in large part by the laws of evidence, which only allowed confession on the testimony of two unimpeachable witnesses, or on confession of the accused. The necessity of keeping public order quickly led to a formalized structure where the authorities basically tortured confessions as necessary. Unfortunately (1) torture is bad in an of itself and (2) because torture tests the ability to endure pain instead of the quality of the evidence, it subverted the justice system as a tool to dispense justice.
Langbein argues that plea bargains are similar in many ways – we have a system of due process broad enough that it’s not practicable that everyone accused of a crime actually get a full trial, and as a result, a practice has evolved where the cost for holding a trial is doubling your sentence if you lose, and if you’re poor, it’s also sitting in jail until you go to trial. Like torture, this to some degree tests the defendants’ resolve rather than their innocence.
http://digitalcommons.law.yale.edu/fss_papers/543/
America is commonly singled out (among developed western nations) for A) having high inequality (which might be a dubious claim, but taking it as given) and B) having high rates of incarceration. I’m surprised that no one has put two-and-two together and looked at the impact of our abnormally high rates of incarceration on inequality (or maybe someone has and I haven’t found it yet). It stands to reason that the more we saddle the poor with jail time, fines, and damaged records, the more difficult it will be for them to get ahead. Just a thought.
There’s also the reverse story: high wealth inequality causes poor people to conclude that they are excluded from the benefits of the legal market economy and to therefore adopt alternative strategies regarding employment.
Yeah, that seems totally plausible too. But part of that story would have to be unusually high crime rates — and those high crime rates would have to be caused by inequality, and not, say, stricter drug laws.
That’s mostly the conclusion of evolutionary psychologist Martin Daly’s new book Killing the Competition. Although the violence is not just an alternative employment strategy, but an alternative status-gaining strategy. Women are still peeling men off the top of the hierarchy, and when nobody in your local hierarchy has access to the wealth-gaining system to show status, violence against people who disrespect you gets you status and therefore access to women.
It is a weak argument (as you present it, obviously very briefly) as if violence against men is status seeking for the purpose of mate selection then you have an issue. Either violence against women should be anti correlated with the above violence against men, or women must not use violence against them as part of their mate selection.
That one, unfortunately, for a large class of women.
https://slatestarcodex.com/2014/08/31/radicalizing-the-romanceless/
@The Nybbler
My reply should have had an additional line, that if women are not using violence against them what is the Evopsych reason for it.
How long would it takes for judges to compensate for the philkrimaic-feeling billionaire by increasing the bails?
I don’t believe that any country of which that statistic is true has an honest justice system.
Why?
Because we should arrest more people who didn’t do anything wrong.
/s
@vV_Vv
People make mistakes. The prosecutor is human and the evidence was collected by human police officers, so you’d expect him or her to offer unfair plea deals in a decent number of cases, because somewhere in the justice system, a mistake was made. A dishonest justice system provides strong incentives to accept an unfair plea deal.
A 4% error rate for plea deals would be amazingly low.
A dishonest justice system can also send you to trial and convict you even if you are innocent. Why would a plea deal be any better?
That is a weird objection.
The argument is not that a smaller number of plea deals is evidence for a honest justice system, but that a large number is evidence for a dishonest justice system.
You seem to be arguing against a claim that was not made.
I think I’d be a little happier with Washington’s scheme if the city didn’t have such a high crime rate. As well, it’s kind of pointed how you don’t say anything about non-violent crimes being committed by people on bail.
To me it feels like that most of the solutions and discussion here seem to have a fundamental assumption that most people who are arrested are not guilty, and are being railroaded by the cops and the justice system. It would be interesting to see a discussion which started from the opposite assumption: “Given that most people arrested are guilty, how can we we make the system more humane and efficient?”
There’s a lot of fundamental questions in the underlying statistics at work here. I don’t know if I’m just being subconsciously overly defensive as a member of the political right being (rightly or wrongly) blamed for the problem, but at a conscious level I want to know the truth of the problem so I can accurately model it, so, please, correct me if I’m wrong, missed something or misrepresented something.
There are a lot of possible partial explanations for why the US incarceration rate is so high, which all depend on a number of other statistics that I can’t find a clear answer for. As a temporary source, I’m using the UN’s International Statistics on Crime and Justice (https://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf) which appears to be from 2009-2010, but I don’t think US incarceration rates changed that much, so the analysis should still be valid. However, the document is more analysis than statistics.
First, to get this out of the way, are incarceration statistics comparing apples to apples? The statistics Scott cites are fairly comprehensive, but there are some things I didn’t get from a quick reading. For example, do other countries include ‘Immigration Detention’ and ‘Civil Commitment’ in their criminal incarceration statistics? Anyone trying to discuss this should read Chapter 8 of the UN study, “Crime and criminal justice statistics challenges“, for a discussion on how hard it is to find comparable valid statistics, which is why I’m incredibly hesitant to make policy prescriptions based on those statistics.
One of the things that stood out in the study was the Suspect Rate. “The total number of persons brought into contact with the police or otherwise contacted by the criminal justice system – persons suspected, arrested or cautioned – were defined in a similar manner as the number of recorded crimes, excluding minor traffic offenses and other petty offenses. The number of suspects is in most countries smaller than the number of recorded crimes, because many crimes are not cleared, i.e. a suspect for the offense has not been found.” The study cites the US as being a country with a high suspect rate, but other countries listed as being high, such as Finland, New Zealand, and South Korea don’t have a high prison population per capita. If they were also somewhat high, I could see the US having a high prison population in part because our justice system solves (or, admittedly, ‘solves’) a higher percentage of crimes than other countries do. The fact that we have so many drug crimes might also factor into this, as these are crimes (or ‘crimes’) which only come to light when a suspect encounters the police.
What’s the argument in favor of the current bail system? I feel like I’m missing that.
It just seems obviously wrong to me that the freedom of someone accused but not convicted of a crime should depend on their ability and willingness to put up money, and I’m not sure what sort of coherent arguments exist for such a policy. Certainly if we didn’t already have the current system in place, I can’t think of an argument for adopting it that wouldn’t be laughed out of the room. But since I don’t understand why it exists in the first place, it’s possible that I’m missing something important.
To illustrate the issue here: a lot of the pro-bond arguments I see in this thread are actually just arguments for not releasing people accused of serious crimes. They’re not arguments for why their release should be contingent on ability/willingness to post bond.
The best steelman I’ve seen is in the Priceonomics article I linked two posts up.
Basically:
– Actual bail does increase the frequency at which released defendants show up for trial. (Not really surprisingly). I don’t know if you surrender your bail if you commit more crimes, but if so, I would guess it also decreases the pre-trial crime rate.
– Bail bonds essentially function as insurance against the possibility of running – you are making a deposit with the person who is going to chase you down, the pool of which covers the costs of chasing down people who don’t show up for trial.
Perhaps it’s a bit of a relic from an earlier time where if you could flee the state or country, you really were safe from prosecution. Maybe bail makes less sense in the modern world where it is harder to cross borders, and easier for the law to pursue you across states/countries.
If 20% of people in jail/prison are awaiting trial, and they’re waiting for an average of 51 days, doesn’t that suggest that the average sentence should be on the order of 250 days? Is that plausible?
https://en.wikipedia.org/wiki/Criminal_sentencing_in_the_United_States says the average is 55 months given a guilty plea, which is almost all convictions. That’s 6.5 times too high. If 13/15 people get either not-guilty or no prison/jail sentence, the numbers seem to work out. Is that plausible?
Eh, maybe. I couldn’t immediately find something for that.
Various things might confuse the issue. 55 months is probably dated. And I guess people who aren’t going to get prison/jail sentences are probably less likely to be incarcerated while they wait, I’m not immediately sure whether that’s a thing to take into account.
I’m not following the logic stating that because the average pretrial detention is 51 days, that the average sentence should be 250 days. There’s no obvious reason to me that these should be correlated, other than a tendency to say “Time Served” on the part of the judge could tend to anchor a number of sentences near the average.
It’s a flow argument. Population A in pretrial detention, every day A/51 flow through to trial and actually-sentenced prison (/jail, I’ll pretend they’re the same thing from now on). Population 4A in prison. If the prison population isn’t changing too fast (which is another assumption that might fail), that suggests the rate that people *leave* prison is roughly A/51 or 4A/204, so the number I should have used was 200, not 250.
…but I completely ignored the people going to prison not from pretrial detention. If half of people on trial aren’t detained beforehand (per the article), then we get 2A/51 in and 4A/102 out, which is even lower. But I don’t think it changes the conclusion much, now we need 13/14 people (93% instead of 87%) to get not-guilty or no prison.
Unless I’ve made another mistake? Someone who is good at math help me my prison population is exploding.
That does sound pretty weird to someone from the UK, for whom those words are synonyms. I’m aware that they do mean different things in the USA, but I’ve never managed to get a firm grasp on exactly what the difference is.
Jails are managed at the local level and mostly used to hold people for minor offenses or while awaiting trial. They’re usually (though not always) relatively small, and often located in or near a courthouse or police station. Prisons are state or federal and mostly used for long-term confinement; they’re usually larger, and usually standalone facilities.
As I understand it (as an American who knows only a little of the criminal justice system): Usually “jail” refers to a place where:
a. You get locked up when you’ve been arrested but not yet charged/indicted/whatever. You got into a fight in a bar and the cops showed up and arrested you and took you to jail.
b. You stay while you’re waiting for trial on the assault or drunk-and-disorderly charge.
c. You stay when you’ve been convicted/pled guilty of some local offense (city or county level stuff), typically for less than a year. So when you plead guilty and the judge gives you 30 days, you serve your sentence there.
I’m not 100% sure if those are usually the same facility or three different kinds of facility that all get the same name.
By contrast, prison is generally a federal or state level thing, and it involves longer sentences. If you kill someone in the bar fight and get convicted of manslaughter and get sentenced to five years, you’ll be serving that time in a state prison.
To elaborate, I believe the original distinction was that jails were for holding on to accused criminals awaiting trial and punishment and prisons were for punishing actual criminals after conviction. As short periods of confinement replaced e.g. fines and flogging for minor crimes, it wasn’t really practical to send them all the way upstate for a fifteen-day sentence and the rule evolved that misdemeanors (usually under local jurisdictions and not more than a year’s confinement) could be punished by a stint in the local jail. But this is still a secondary function of jails.
Hence the bit in the infographic where most of the people in local jails haven’t been convicted of anything but essentially all of the people in prison have.
Scott, all,
Here’s a link that discusses some of the contrary argument – there are studies that indicate that bail does make it more likely that defendants will show up at trial, and you can argue that the bail bond system is essentially purchasing insurance against skips – the bail bondperson accepts the premium, and is responsible for the cost of tracking down the defendant if she runs. (True, the bondsperson doesn’t have to chase the skipper, but it sounds like they usually do and usually catch them). The bondsperson also takes on the cost of evaluating defendants for likelihood of running.
https://priceonomics.com/americas-peculiar-bail-system/
Chicago Community Bond Fund is doing excellent work on this in Chicago. We are close to getting a big bail reform bill passed!
Feel free to look it up / email questions here:
https://www.chicagobond.org/
Seems to me that alternative bail systems such as DC are just begging for a different sort of abuse. People are very good at pattern matching. Prosecutors and judges are going to figure out what sort of things they can do to make the system spit out a recommendation of “no bail”. For most crimes, this doesn’t matter; career criminal gets in barfight, drug gangs shoot at each other, 2-time loser is caught drunk driving again, etc; no reason to manipulate the system.
But then you get the interesting cases, where someone who isn’t a member of the underclass is the accused. Convicting such people is a much bigger feather in the prosecutor’s cap than just putting away yet another career criminal for a short stretch. And, people who aren’t career criminals are much more afraid of jail. And they have more to lose by being in jail. So when such a person appears, the prosecutor does what it takes to get a recommendation of “no bail” out of the system, and are in a winning position for the plea bargaining.
“Prosecutors and judges are going to figure out what sort of things they can do to make the system spit out a recommendation of “no bail”.”
Since the system has been in effect for forty years, and there’s still a pretty high release rate, it seems like this hasn’t happened.
I’m not saying they’ll do that all the time. I’m saying that if local troublemaker Bob Nogoodnik gets involved in a barfight and gets pulled in on an assault charge, he’s got every chance of getting out pre-trial. The prosecutor doesn’t care about him.
On the other hand, if well-heeled Jim Cleancut gets involved in similar trouble (maybe he’s a mean drunk, or maybe he was just in the wrong place at the wrong time)… here’s a guy the prosecutor can make an example of to show he’s Mr. Law-n-order. For starters, he can charge him for aggravated assault rather than simple assault; maybe it won’t stick, but it’ll change the input to the release/no-release algorithm. Now let’s see, Jim’s got considerable financial resources; he’s got family in other states, he went to school clear across the country… sure looks like a flight risk. Lock him up!
I’m of the opinion that the real injustice here is the statistic that 96% of guilty verdicts come from plea bargains. The ability of prosecutors to coerce guilty pleas out of defendants through the plea bargaining process is a violation of the right to a trial by jury, plain and simple.
96% of guilty verdicts coming from plea bargains, is entirely consistent with 96% of guilty verdicts being actually guilty people who are “coerced” by prosecutors who could – legitimately, fairly, and with full due process – secure their conviction and probable X year prison sentence, instead offering them 0.75X if they accept responsibility and incidentally save the state the bother of a trial.
There’s room for injustice in the system, but the 96% number is not evidence of it. In a properly-functioning criminal justice system, almost all arrests should be settled by either a dismissal of charges (when the prosecution realizes they will lose if they go to trial) or guilty plea (when the defendant realizes ditto). Actual trials should occur only when some freakish arrangement of facts leaves the case balanced on the knife edge of reasonable doubt, or when someone is being pointlessly stubborn.
96% strikes me as a bit too high of a number for this, but I concede that I have no idea what the ideal number actually SHOULD be.
I don’t believe that 95% of people who the police arrest and who prosecutors take to trial are guilty. But you could probably sell me on 75…
If I recall correctly, about 80% of jury trials where it’s in question produce a guilty verdict. But that’s the last stage of a process designed to weed out the clearly guilty (via guilty plea) or the probably innocent (via dropping charges). And charges do get dropped pretty often, or are never brought up — I’m not sure of the formalities, never having been arrested myself, but I know a number of people who’ve been brought in by the cops, then let go within a day or so.
In all the juries I’ve ever served on, for what it’s worth, the defendant was obviously guilty as hell and the only real question was what exact charges the offense counted as. But that’s a small number of juries.
Why would any defendant agree to a plea bargain? If they were innocent, because they were intimidated. If they were guilty, in exchange for a lesser sentence than their crime deserved.
So plea bargaining requires either punishing the innocent, or going easy on the guilty. But it gets the conviction statistics up. It certainly makes it look like you are being tough on crime.
Trials are expensive. If you have some amount of money for a justice system, you may prefer to spend it on cops and prisons than on lawyers and judges, and a well-functioning plea bargain system facilitates this.
Plea bargaining (like the whole justice system) is a tradeoff between a bunch of different goals–justice for the accused, public safety, efficiency of the justice system, etc. What I think we need to know is: what kind of tradeoff are we making right now? How would we know if we were making a bad tradeoff?
For example, what fraction of people in prison right now (mostly plea-bargainers) are innocent of the specific crime that sent them there? What fraction are innocent of any serious crime, and the cops just flat got the wrong guy? Getting some kind of handle on those numbers would help us know if we were making a bad tradeoff.
Suppose we could somehow determine that nearly everyone in prison was guilty. Then stuff like getting rid of plea bargaining or improving standards of evidence for criminal cases wouldn’t seem too urgent. On the other hand, suppose we could somehow determine that a substantial fraction (say 10%) were innocent. In that case, we’d want to slide the tradeoff-bars toward more justice for the accused and less efficiency.
The plausible estimates I’ve seen were:
The innocence project quotes a news article estimating that at least 1% of prisoners are innocent.
This article based on a survey of a bunch of people involved in the justice department suggests about half a percent of prisoners are innocent.
If those are at least approximately right, then that gives us a sense of the size of the tradeoff–probably 99% or so of prisoners are guilty, which suggests to me that it’s probably hard for us to improve a huge amount on our rate of locking innocent people up.
If we were looking at 10% innocent people locked up, I’d think we could do substantially better, but for a process as fundamentally noisy and hard to get right as criminal justice, it sure seems like getting the false-positive rate down from 1% to, say, 0.1% (1/1000) would be pretty hard.
On the other hand, I don’t know how much weight to give these estimates. Anyone have better data?
One terrifying piece of evidence is the Roman-Walsh-Lachman-Yaner study. They found a county in Virginia where the forensic sciences lab never threw anything out and therefore had hundreds of samples of semen, blood, hair etc left by rapists from the 70’s and 80’s. In 227 of these cases, a person was convicted of the rape, and they were successfully able to run DNA tests on both the old sample and the convict. In 40 cases, so 18%, they didn’t match.
Note that there is no obvious selection bias here — they looked at every case in this county and filtered based on whether they could do the test, regardless of other evidence for or against the convict.
Obviously, these particular errors wouldn’t be made today, but it suggests the rate at which errors are being made.
Preferably going easy on the guilty.
Making sure each and every guilty scumbag gets exactly what they deserve is hard. Batman hard. And bloody expensive, with some of the cost literally paid in blood, and some in wrongly convicted innocents, and lots of it in taxpayer dollars. If you insist that Every Guilty Scumbag Gets Exactly What They Deserve No Matter The Cost, you’ll wind up getting what pretty much everyone who ever said “…no matter the cost” gets.
If you’re trying to put a cap on the costs, going easy on the criminals who are willing to plead guilty seems like a really obvious place to start.
Unfortunately, this also tends to push the system towards more harshly punishing the innocent. Erroneously convicted innocent defendants will get a harsh sentence compared to plea-bargaining guilty defendants. And I would guess that a guilty defendant is more likely to take a plea than an innocent one. Piling on additional penalties for defending yourself tends to lead to injustice.
At some point plea bargaining begins to look like a high-stakes game of chance against an opponent with an infinite bankroll. Sure, you think you have a good hand, but if the cost for folding is 6 months in jail and the cost for losing is a 5 years in prison and a felony conviction, what odds do you need to place on winning to make going to trial a rational choice?
Erroneously convicted innocent defendants who don’t accept a plea bargain will get a harsh sentence compared to plea-bargaining guilty defendants.
Whether or not someone accepts a plea bargain would seem to depend mostly on A: whether they are one of the edge cases where the evidence at hand leaves the outcome of a trial highly uncertain, B: whether they are irrationally stubborn in light of A, and C: whether they are receiving good legal advice.
A and B would seem to be independent of whether the suspect is innocent or guilty; I’d expect innocent suspects to get at least marginally better legal representation than the guilty but maybe not the edge cases from A. So I don’t see this as a source of inherent bias against the innocent, and I think you are not playing fair when you consider only two of the four relevant groups (excluding the innocents who take plea bargains and the guilty who go to trial).
@John Schilling
I’m assuming innocent people… being, you know, ACTUALLY INNOCENT… are ceteris paribus much less likely to be willing to accept a plea than guilty people.
This isn’t clear since plea bargains are made in the shadow of what would have happened at trial. Trial is risky and imposes costs on all parties so the efficient outcome is for everyone to settle before trial to an outcome that makes them better off, on average, than if they went to trial.
If the numbers in the post are accurate, charity is a poor way to solve this problem. Good old reliable greed should be more than enough!
Whether the cost of keeping someone out of jail is $1 or $10 a day, either amount is far lower than a day of labor. So it should be quite profitable for an individual, or a company, to cover bail in exchange for labor.
The more interesting question is: what’s the cause of this market failure?
uber-for-bail-bondsman startup incoming!
lets go, someone toss me $500 million
1. These people aren’t employed.
2. They are too risky to employ. 2% of them will commit a violent crime obvious enough to get arrested for. 9% of them will commit some other crime obvious enough to get arrested for. Who knows what other crimes they will do that won’t be immediately noticeable.
It’s possible that “being employed” will cut down on their rate of crime, maybe significantly, but someone who decides to test this is going to be taking a big big risk.
Minimum wage, perhaps? I don’t think labor law considers “not being in jail” as part of a worker’s compensation. And there’s probably other legal issues that you can run afoul of when you’re negotiating with someone in jail, which is probably the most unequal bargaining position I can think of. Maybe you should take this over to /r/legaladvice, they love crazy hypotheticals like this.
But legality aside, I’d also suspect that there’s just too much volatility. If your labor supply comes from people bailed out of jail, then it’s hard to predict when you’ll have someone available to work (because that depends on how often people get arrested and can’t make bail) and when they will stop being available (which depends on their court date, and if they decide to flee). Court dates are supposed to be within 45 days of the arraignment, according to a quick Google. So I’d predict this will only be useful if you have work that doesn’t need any special skills, can be started up with little training time, and can either be completed in about a month, or transferred to another laborer for little cost. Even before you factor in the risk of hiring accused criminals, I’m not sure how many businesses fit the profile.
I want someone to make a convoluted connection between Scott’s article and this viral piece on millennials spending too much on avocado toast to afford their own house: http://time.com/money/4778942/avocados-millennials-home-buying/
Unless you’re seriously suggesting that giving people bail is more efficient than buying third-worlders malaria nets, why in the world would anyone “in the effective-altruism sphere” come near this? Also, I don’t see any EA-based justification for limiting this to the US. Surely there are third world countries where people need bail amounts that are, because of poverty and exchange rates, paltry compared to American bail and where your bail money can go farther (and where prisoners may even be more likely to be innocent, because of corruption).
By EA standards, this proposal is buying warm fuzzies, not utilons.
(Note: I am not EA. Just pointing out a seeming contradiction here.)
The primary cost of bailing someone out is the system to deliver the money, rather than the money itself, which gets recycled. I’d expect that the cost of finding someone who is familiar with Impoverished Country X’s legal system and lives in that country, getting your money exchanged, and so on raises the overhead to impractical levels for a US-based charity.
In other words, if Impoverished Country X has its own version of the Bronx Freedom Fund (and a website to donate to), it might well be a worthier cause. But it doesn’t follow that the Bronx Freedom Fund should pack up shop and move its operations there.
Think of it as EA-lite. Sure, it’s probably not the maximum good you can do per dollar. But there are lots of people interested in “criminal justice reform” in the US. Perhaps Scott is merely suggesting that *these people* could do *much more good* towards their stated aims by paying peoples’ bail?
I’m not an EA, but if I could keep a person out of jail for a dollar a day, his labor each day would be worth at least two orders of magnitude more than that. It won’t be hard to get that dollar back out in some way.
Assuming the people who want to be bailed out are employed.
And I’m sure the cost of incarcerating someone is higher than $1/day, so you have to wonder why the government doesn’t just put up the money itself.
Though your last assumption is likely false. The unemployment rate for people in prison because they can’t afford bond is very high. Especially if their normal means of obtaining income is best avoided while they await trial.
I guess this is a bit of a tangent, but I’m looking to make some contributions this year, and as a filthy nationalist I feel it’s my duty to help my fellow Americans. I’ve poked around the Effective Altruism sphere a bit and for understandable reasons there’s not many options for me. I’ve looked at several charity rating sites, but they seem more focused on measuring what % of dollars are sucked up via administrative overhead, etc., and less so about evaluating the impact of the actual work. Is there some EA-but-only-for-helping-Americans resource that I haven’t found?
PS. The Bronx Freedom Fund intrigues me, but several people here have already stated reservations about it which I somewhat agree with. Nevertheless, I may make a donation – but I would prefer to know my options first, hence this request.
A note on this part
Because you get bail money back this might be the correct number, where every $39 they get allows them to cover on average bail for one more person.
This checks out. If you get 90% of the money back (i.e. average of getting all the money back 90% of the time), then the expect bail-payouts from $39 is 39/(1-9/10) which is $390 dollars, if successfully repeated ad infinitum. Given Scott’s numbers, that’s a very reasonable ballpark of a low-ish bail dollar value.
Is it correct to assume that the bail money posted for those who do not turn up at the court date goes to law enforcement/the courts/someone else who is in a position to increase the bail prices? If that is so, surely giving money to a charity that pays people’s bail will essentially amount to guarantee them payment of whatever price they ask, removing any incentive they might have to keep bail rates down: in other words, an instance of tulip subsidies.
“If you grant 1, wouldn’t the easiest way to solve these problems and make everybody everywhere happy be to…just reduce the frickin’ crime rate somehow?”
Well, where would be the challenge in doing something so simple and easy?
I agree that jail shouldn’t be harsher than necessary and that the bond system may not be very efficient, but so often these calls for prison reform come across not just as worried about abuse or innocents falling through the cracks, but as being upset that actual criminals are in jail. From this article, for example:
“People in jail have a bad habit of making incriminating statements that get reported and used against them on trial.”
Is that really a bad thing for society on net?
edit: As others have said, the bigger problem is that there’s so much crime in the first place.
Remember that “don’t talk to the cops” video that made the rounds a few years ago? You can say a lot of incriminating things even if you’re innocent.
(And even if incriminating statements by a suspect are always solid evidence, it seems odd that we should gate off access to those statements by how rich the suspect is. If keeping suspects in jail to extract inadvertent confessions is a good thing, it’s a good thing independent of whether bail is.)
Also, there’s a pretty common argument that “tough on crime” sentencing strategies don’t actually decrease the recidivism rate. Or in other words, if you think that keeping a criminal in jail for longer is going to cost society more than it earns on the margin, then it’s perfectly okay to be upset that criminals are in jail.
The video is worth watching.
“People in jail have a bad habit of making incriminating statements that get reported and used against them on trial.”
A cynical person like myself might think that prisoners are extorted to claim that other prisoners confessed.
Took the words out of my mouth. Including half-jokingly describing the idea as ‘cynical’.
I seem to recall there’s some evidence for this, though. I read Barry Scheck’s book actual innocence a few years ago, and I recall it had a whole chapter on this.
Of course, it’s an old book, but I’d be a little surprised if things had gotten better.
Why should the condition that makes guilty people more likely to be convicted be applied disproportionately to people who are broke?
Correlation or Causation?
What if people who make the kind of bad decisions which lead to being broke are more likely to also make bad decisions like committing crimes?
I don’t see a correlation vs. causation question?
You’re assuming that not making bail causes a person to be more likely to be convicted. But what if people who can’t make bail are simply more likely to be guilty?
Only way to be sure: randomly deny or grant bail.
Or to put it a slightly different way, being so broke you have absolutely no way to raise $200 signals a high level of irresponsibility, such that I am unlikely to desire to help any such people, regardless of whether or not they may be criminals.
I know plenty of poor, lower-class people who could come up with that sort of money if they absolutely had to (and “absolutely had to” does not include “someone administering a survey asks you if you could”)
I’ve often seen certain types of pro-market capitalists accused of viewing the market as an arbitrator of moral worth, and I’ve typically considered those accusations to be accurate, but I’ve never seen the principle stated outright and so boldly.
Your options change pretty dramatically once you are in prison. Bail might not be set for several days (Friday arrest) which can eliminate a couple of options (finding any job that pays cash, or getting an advance from your employer), and once in prison getting bailed out takes several hours of someone else’s time which comes at a cost. Lots of other compounding factors are possible like getting arrested out of state.
I do worry that sentences are really, really long. If I’d never heard of our current sentencing guidelines and was asked to invent them out of thin air, I think I’d give about 10% of the real value for most things. I think this is different from “criminals shouldn’t be in jail”.
I suspect you’re right, but how can we figure out how long a sentence should be?
In terms of deterrence, I suspect long sentences aren’t all that effective, because I doubt the folks committing the crimes are really thinking 20-30 years into the future. (That is, I suspect a 15 year sentence ~= a 30 year sentence in deterrence terms, for most criminals.)
In terms of incapacitation/quarantine, I think most violent criminals age out of violent crime by the time they’re in their 40s-50s, so we’re probably not being made enormously safer by keeping a 60-year old guy in prison for that armed robbery/murder he committed when he was 19.
Both of those are questions that are surely answerable (and probably there’s a large literature on both). But it’s worth noticing that very little of the public debate on prison terms seems to be taking either of those into account. Instead, my guess is that Senator Blowhard felt that he could score some points being Tough On Crime by making the sentences for some crime longer.
I can think of four justifications for jail time: to dissuade future crime, to remove someone from society to reduce crime, to help someone become a productive member of society, and to punish them out of some notion of justice.
The last is big for a lot of people, but probably not for people around here. Though I will admit that I would get utility from knowing that (e.g.) someone who murdered my wife or child was rotting in jail. I think it’s based on a notion of proportionality, like if you do harm X, you should suffer a punishment that harms you to a roughly equal degree.
The third is something our society doesn’t really do, probably mostly because it cuts against our desire to punish. The first and second are probably quite important.
I can think of four justifications for jail time: to dissuade future crime, to remove someone from society to reduce crime, to help someone become a productive member of society, and to punish them out of some notion of justice.
Jail is a subcategory of punishment, for which five major purposes are generally identified. The fifth is paying the victim for damages, which jail doesn’t do, so, well said.
AIUI, rehabilitation used to be more prevalent before public US opinion turned strongly away from mental institutions. Some people call for bringing that back; in general, there’s some public approval of using clinics for this role. The utilitarian and consequentalist in me favor both. But this is not something I follow closely.
My impression is that there are a fair number of rehabilitation-oriented programs in prisons. In particular, a lot of guys who dropped out of high school before going to prison end up getting GEDs inside, and that probably helps them get a job when they get out. I think there are often vocational programs, too, though I don’t know how good they are. In general, I’d expect services offered to prison inmates to be really bad, since the “customers” have no alternatives and no power to demand changes.
Many years ago, I know there was a program in Missouri to take drug offenders and put them in a four-month “boot-camp” like harsh environment to try to get them to straighten out, so they didn’t end up in prison. (I knew a guy who got sent to one after getting arrested for forging prescriptions to get opiods.) I don’t know how common those are, though.
According to the lawcomic guy, rehabilitation is tricky because the vast majority of people who can be or want to be rehabilitated are automatically rehabilitated by any contact with the criminal justice system. Any contact is enough to wake somebody up to the fact that this is real life, this really matters and they need to keep their noses clean.
Conclusions from the data presented are WAAAAAAAAAAAYYYYYYYYY to broad.
Not being arrested is not the same as not re-offending. If arrests were totally random and effected 1% of the population in any one year (and all were released after a short jail stint) a population entirely made of habitual criminals would see 99% of those arrested in year 1 have ‘avoided contact’ with the system in year 2. Successful rehabilitation! It takes 20+ years for the first cohort of arrested criminals to hit a 17% recidivism rate.
Between the (semi) random nature of arrests and the ability of people to learn how to hide their behavior to avoid future arrests this conclusion is really unwarranted (with the data presented, pun intended).
So you would send violent criminals to jail for 8 months, and murderers in for 2 years?
http://www.dc.state.fl.us/pub/timeserv/annual/section2.html
(Feel free to find a better source. Just the best I found on a quick google.)
It doesn’t come up much in the media these days, but America tried cutting back on imprisonment in the 1960s and the ensuing rise in crime was a massive disaster that permanently wrecked a number of great cities and almost destroyed New York.
Bill James’ book “True Crime” isn’t all that good, but he does remember what Establishment attitudes toward incarceration were like in the 1960s and how that damaged urban life.
Why do you think those policies were responsible for the crime wave? My understanding is that social scientists don’t agree on either the cause of the crime wave or the recent reduction in crime. I would think that the effect of sentencing policies on crime would be the first place you would look, so I have to assume that the relationship is not so clear cut.
Certainly it makes sense to me that harsh sentencing and increased law enforcement expenditures caused the reduction in crime, but it seems that many experts disagree.
That said, it doesn’t seem like it would be impossible to figure out other methods of dealing with criminality, perhaps using new technology.
But, as we’ve seen, it’s been too tempting for Democrats to demagogue over how the high rate of imprisonment of blacks is due to evil white people, so little has been accomplished.
I think the cause of the crime wave and its end are both still hotly debated in criminology circles. I’ve seen people propose as causes:
a. Abortion (basically the theory that we pre-emptively killed off a lot of the criminal class before they were born). I think Steve made a pretty strong argument against this theory in the past.
b. Changes in the criminal justice system. It’s not clear that this perfectly fits the data, but it seems like it has to be part of the answer.
c. Environmental lead exposure. The dates for leaded gasoline kinda fit, but it seems like we should have seen falling average IQs instead of the Flynn effect if a lot of people were getting lead-poisoning-related brain damage.
d. Random forces. This is actually my guess–I think the decline in traditional families, social disruptions, popular entertainment glamorizing gangster life, crack, meth, etc., all just kinda happened, and each one pushed things in its own direction.
@albatross:
The lead data more than just “kinda fits”.
HBC, the obvious question raised by the graph in that article is why the violent crime rate shot up between 2000 and 2008 before rapidly declining. Did lead concentrations rapidly increase and then decline over the span of <10 years? I think that's unlikely.
It's also strange that the violent crime rate did not track the overall crime rate during that period, which peaked in the early 1990s just like in the US. And there was no spike or fall in homicides.
So overall I would have to say that lead doesn't explain why Britain experienced a very sharp and short crime wave during that period.
Also, that chart looks nothing like what I found from another source:
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/2015-10-15#violent-crime
Here violent crime peaks in the early 1990s like overall crime.
In conclusion, Kevin Drum's graph is *weird*.
I hear the lead-crime hypothesis fits for Australia too, though maybe Kevin didn’t include that because it takes an ax to the “gun bans reduced crime” hypothesis. Or maybe I’m just wrong about that?
Either way it seems like a pretty strong argument that lead correlates to crime, even if the statistics don’t fit precisely. Too bad we can’t actually test it to see but yeah.
The lead theory is worth more study.
It doesn’t fit Japan at all, but it’s not too bad for other countries.
One thing I’d like to see is studies of crime rates in places with major lead pollution. The EPA maintains a Superfund lead pollution cleanup site list online, so it’s not hard to get a list of localities with very high lead pollution rates.
I read through one lawsuit about lead pollution in a town with a lead smelter in Missouri’s lead belt. Parents didn’t seem to be saying lead made children behave badly, it made them sluggish.
Anyway, there is a lot of info out there for somebody to research.
Likewise, I went to school K-12 in Sherman Oaks, CA, which had the biggest traffic jam freeway interchange in the country in the 1960s-70s (405 & 101). Did all this lead being spewed from freeways in Sherman Oaks, CA lead to high crime rates? I dunno. It seems more likely it caused the Valley Girl accent.
That U.K. graph linked to by Eponymous seems to be survey data, not police crime data, and it doesn’t seem to track the crime data elsewhere in that report.
Not a superfund site, but there has been at least one study that linked crime rates and lead poisoning at the census tract level.
@AnonYEmous:
Drum has written about Australia as well.
The US certainly hands down longer sentences than other “civilized” countries. We’re also much more likely to imprison convicted criminals at all, where other countries tend towards fines and probation for common offenses, only imprisoning the worst offenders. I think some international comparisons are in order.
I saw a comparative study of “punitiveness” in OECD countries once, but I can’t find the link.
An important omission from my Stuntz rant is that part–perhaps the biggest part–of how legislatures get around the expense of proper prosecution is by affording prosecutors the ability to threaten you with more jail time than you deserve *even if you are guilty of the moral harm which explains why the prosecutor wants to prosecute you.*
Ask yourself this: someone you know, but not well, has been arrested in suspicious circumstances, and it’s now a possibility you have to consider that they were knowingly doing something that was at least potentially quite harmful to others. You learn the prosecutor is asking the judge for the full sentence, under the law, for every circumstances-applicable crime under every statute on the books.
Do you assume that the person is being sentenced fairly, or does it sound like they’re getting screwed, or at least being threatened in hopes they’ll plea out?
A strong example (I’m no criminal law expert. If, as a law student, I can claim an expertise at all, it’s in env law/climate.) is the way prosecutors use the Len Bias law. Being part of the criminal conspiracy that sells illegal drugs that cause an overdose death is a serious crime. But perhaps we can agree that it is maybe not 20-years-in-jail-serious? Particularly when you think about how little is entailed: if you are an illiterate agricultural worker with no English and you are knowingly driving a truck for a cartel that has threatened to kill your family back in Mexico, you are subject to a sentence we normally reserve for first-degree murder and other crimes requiring an awful mental state: 20 years. And all the judge and jury have to agree on is the *facts* that you qualify under the Lens Bias law. Only the prosecutor has to ask themselves if you “deserve” this.
At least, that’s how I understand it. I haven’t taken criminal law, actually, and it’s easy to be wrong about this stuff, so (proper disclaimers etc etc).
Surely judges themselves don’t think that the bail system should be eradicated (if they did then they could just set really low bails for everyone). So if a charity attempts to pay everyone’s bail then they are likely to try to punish that charity by making all the bails much larger.
Presumably this has already happened, implicitly, with bail bondspersons.
Not as much, because the bail bondsmen are providing a service to the court by ensuring people show up for trial. A judge may prefer a defendant pay $500 with Mad Dog Retrieval Service (d.b.a. Out In a Jiffy Bail Bonds) on the job rather than $5000 with no such guarantee.
I think you may be underestimating the extent to which “coerce poor people into taking plea bargains” is a desired outcome of the system rather than an unfortunate side effect. The fellow who was arrested for supposedly assaulting a cop is a great example; obviously something he did pissed off a cop, and so he’s going to be punished, one way or the other. Cops don’t want to have to quibble in court about every little altercation they get into when they didn’t even shoot anybody. If the alleged assaultor was somebody important it would be one thing, but riff-raff who can’t scrape together bail are supposed to just take the guilty plea and learn their lesson.
To an extent it’s a result of trying to give everyone expensive, time consuming jury trials when there are just so many criminals to process. Because there are so many criminals, giving them all trials means they have to wait, and some of them will naturally prefer to plead guilty than sit in jail for two years awaiting trial, particularly if they have a low chance of winning. And there isn’t a great solution to this that doesn’t involve either spending billions to expand the justice system or stripping away important constitutional rights (and so far state governments have largely preferred the latter, since rights are less popular than low taxes).
Stripping away stupid laws is the way to go.
Are you translating Nyx’s “important constitutional rights” as, in your terms, “stupid laws”? If so, no, not the way to go.
Or are you suggesting stupid laws are leading to lots of people being thrown in prison? If so, see the nifty infographic. Most people in prison, are there for murder, rape, robbery, assault, burglary or theft. Those don’t seem to be “stupid laws” to me.
True, but how much of that is secondary effects of “stupid laws”, like the drug war? Murders and assaults over drug territory or disputes over payment in drug transactions, robberies, burglaries and thefts to obtain money for drugs (which, granted, would still happen with legal drugs, but with lower prices might happen less).
That is a very good question that deserves a quantitative answer. And we can’t leave all of those to Scott; care to take a stab at this one?
Total number in prison has little to do with total number of court cases. If you are convicted of murder you are (relatively) unlikely to be back in court for other charges in the long term. People with traffic violations, drug arrests and other minor offenses tend to make up most of the actual arrests.
Unvetted link claims almost 11 million arrests nation wide, with 500,000 being violent crime, 1.5 million being property crime (don’t know if those two overlap or how they are classified).
Stripping away many of the lower classes of crimes (especially non violent drug crime) would relieve a huge amount of pressure from the entire judicial system, without even taking into account to what the nybbler above talks about.
@John Schilling:
https://www.bjs.gov/content/dcf/duc.cfm
It appears about 10% of Federal property-crime inmates, 27% of local property-crime inmates, and 30% of state property-crime inmates committed their crimes to get money for drugs. About 16% of violent crime offenders committed their crime to get money for drugs. Directly drug-related homicides are low, 4-5% in recent history, though I think violence over drug territory doesn’t count here.
A 1997 report sponsored by the Justice Department puts 40% of homicides in NYC as being related to drug markets; I would expect it’s lower now, however; it studies the year 1988, pretty much the height of the drug war.
https://www.ncjrs.gov/App/publications/abstract.aspx?ID=170654
@SSC:
+1 for Nybbler’s comment getting comment-of-the-thread. Or is that only for open threads?
Building on Nybbler’s numbers, I get 152,000 people incarcerated because of stuff they did to get money for drugs. If that’s proportional to money spent on drugs, we can maybe use Prohibition as historical evidence that drugs now cost about three times what they would in a legal market, so that’s 102,000 prisoners released if we end the drug wars.
Plus presumably all of the 82,000 incarcerated for drug possession.
Drug dealing seems to make up roughly half the revenue of organized crime in the United States, so I’m going to estimate by symmetry and handwaving that half the drug dealers would go to work in the other branches of the enterprise. So, between the 328,000 incarcerated dealers and ~9,000 murderous enforcers, that’s another 169,000.
353,000 people we perhaps wouldn’t need to incarcerate if not for the “stupid laws”, out of 2.3 million total. 15% isn’t nothing, but it still leaves us having the exact same discussion but without the convenient handwaving excuse.
Catch and release fishing has no effect on the fish population*
*assuming that having a hook jammed in your face, being force-ably dragged out of the water, hung upside down, having the hook pulled out, and being dumped back in a totally different spot in the water has no effect on individual fish.
The ‘stupid laws’ are a direct driver of poverty. As noted above while 80-90% of current prisoners are there for ‘reasonable’ crimes, 80-95% of all arrests are there for things in the ‘other’ category. After being picked up, assessed a small (large) fine and missing 2-3 days of work they are released back into the general population. This has two effects.
1. Lost wages, fine and possible lost job negatively impacts immediate finances and future potential earnings.
2. Business owners are reluctant to hire someone that might be arrested for such crimes even if they were 100% positive such behavior didn’t correlate with other negative aspects related to job performance. Employees not showing up is an obvious harm for employers, but minor drug charges are frequently worse because employees that become friends, hang out, and do drugs together have a high chance of getting arrested together. Try opening your small business on Monday morning only to find that 2 or 3 of those scheduled to work aren’t showing up for 1-X days, they might literally represent more than half of your workforce.
They unemployed are far more likely to be arrested. A 2002 Justice bureau report indicated that 29% of jail inmates didn’t have a job (roughly 15% looking, 15% not looking) within a month of their arrest and only 57% were employed full time. Reducing causes of UE will likely lead to lower crime rates.
There are additional (probable) knock off effects. 1. Sentence length is often determined by prior records. In some areas (3 strike laws) it is mandatory that prior offenders get longer sentences. Shorter sentences means a lower prison population. 2. Any criminal behavior that stems from time in prison (meeting and associating with career criminals probably increases future crime rates) will be reduced, further cutting the crime rate.
If we can knock 10-15% of the prison population right away, and then gain another 10-15% over the long run to the other effects we would be a long way to reducing the population while also freeing up major resources need to police these sectors of the economy.
@bacon^2: I am pretty sure that most arrests in the United States are simple traffic stops and have very little in the way of life-altering impacts (though they aren’t trivial for the poor). It is quite possible that the FBI data cited earlier uses the standard “yes it’s technically an arrest when the policeman pulls you over for speeding but that’s not what we mean everybody knows that” definition, but it isn’t clear from a brief skim of the link what definition they are using.
Your assumption that the ~9 million “stupid crimes” arrests usually result in jail time and job loss is not implausible, but needs to be supported. In particular, I don’t think employers in most states can ask or verify whether job applicants have been arrested.
Link to FBI’s UCR offense definition page.
Link to the persons arressted page where it specifically says
.
Then it goes on with
Out of ~12 million arrests getting rid of drug laws (or scaling them way back and legalizing most substances for controlled sale) drops 10-12% of arrests right off the bat. Then there are combo arrests (violence/gun possession/theft stemming from the drug trade), better DUI laws could cut back hundreds of thousands more, before you even get into the long term effects of reducing the prison population.
Beyond this the only way to really figure out the impact of these laws is to get rid of them, even if it was ‘only’ a 10% reduction in the prison population then we can still put those resources to use working on reducing the other 90%.
As the crime rate has gone down in this century, prosecutors have had more time for jury trials so they are less likely to plea bargain down to a light sentence than during the peak crime era in the late 20th Century.
Not exactly on topic, but AMF’s lives per dollar seems to be cut in half since the last time I looked. Is that a revised projection, AMF getting worse, or low hanging fruit having been picked, possibly due to better funding?
I would love to get more clarity on this. I’m not clear if what happened is that GiveWell truly revised their QALY per dollar estimate for AMF or if they just started making it explicit that it costs one amount to actually prevent a death but half that for the QALYs associated with one life. Here are their 2016 evaluations and here is their spreadsheet calculations. Still seems to show a ~$3500 Cost Per Life Saved Equivalent so I’m not sure what’s going on. I have definitely heard from others that it’s $7000 now, but I’m not sure if they’re talking in terms of Cost Per Life Saved Equivalent or if they’re talking explicitly about the cost to prevent a single death. These are different things.
Semi-seriously… anyone want to help fund a kickstarter to establish a joint-purpose seminary/prison, where the seminarians are the guards?
If the estimates I’ve seen are correct, that post-secondary education costs about the same amount, or maybe 2x or 3x as much as incarcerating a person for the same amount of time, then you can fund a lot of seminarians if they’re looking after convicts.
Edit: Okay, not-at-all-seriously.
> I think it might be tied with drug reform for the easiest.
I’m skeptical you can convince the rightwards side of the country to do anything that might be remotely framed as helping criminals.
Remember, the right is defined by their belief in personal responsibility over systemic causes. If there’s a lot of crime they think the criminals are to blame. They don’t think “more community colleges and workers’rights”, they think “more punishment”, nevermind how un-effective that is. Consequently, criminals are dehumanized, in the textbook sense of the word.
Well, the way trends are moving regarding cannabis suggests that this isn’t necessarily impossible.
I get the impression that there are really two sorts of ‘rightwards’ people here – those who conceptualise the idea of experiencing pleasurable altered states of consciousness induced by chemical means to be inherently evil, and a transgression to be punished regardless of harm caused, and those who only care to the extent that drug markets and drug users are associated with violent and/or predatory acts (and accidents) that harm others.
The first – call them ‘puritan prohibitionists’ cannot really be argued with, but the second, call them ‘pragmatic prohibitionists’ can be open to arguments that gifting a lucrative market to criminals creates more violent crime than it prevents – i.e. that prohibiting the sale of drugs does help criminals, by giving them a much more reliable (and worth-fighting-over) income stream than most predatory crimes … and indeed that the typical consequences of the use of a particular drug are made more worrisome by the fact of prohibition removing all regulatory (as opposed to prohibitory) control over the way it is sold and used.
This is probably easiest to make the case for with cannabis, which would explain why there is a much stronger ‘end the war on cannabis’ contingent than ‘end the war on all drugs’, but the same sorts of arguments can be made.
I am generally sympathetic to attempts to repeal what are described below as the “stupid laws” regarding drugs, especially cannabis, but I realize that there are negative consequences to repeal which means that we need more of a plan than just ‘repeal the laws prohibiting use of controlled substances’, which I guess makes me a ‘pragmatic prohibitionist’. Part of coming to a negotiated solution that is agreeable to all parties is recognizing that there will be negative consequences to any solution, in this case, regarding crime as either a personal or a systemic problem.
Drug abuse is a risk, and a risk with negative consequences both to the user and the people around them. The more the costs of those risks are borne by others, the more incentive people have to push that risk away using the blunt instrument of law. Crime is but one of those risks, and it doesn’t go away with legalization. (See https://www.washingtonpost.com/local/public-safety/forty-three-people-indicted-on-charges-of-organized-crime-scheme/2017/05/05/7362f00e-3198-11e7-8674-437ddb6e813e_story.html?utm_term=.40293120c29c)
Sure. I’m all in favour of prohibition being repealed gradually and cautiously, and I’ve literally lost count of the number of times I’ve linked to this publication in these here comment threads; recommended as a sensible outline of the sort of regulatory schemes we could expect to be an improvement on the prohibitionist status quo. Long, but worth reading for anyone interested in these issues.
(though your linked article doesn’t really go into the costs of smoking despite tobacco not being a prohibited drug – it’s more of a warning that sufficiently disparate taxation regimes can be as much of an incentiviser for organised crime as outright prohibition)
Disclaimer: I haven’t read the whole thing. I skipped to the “Regulated Drug Markets in Practice” chapter. I dropped the whole file in my long list of things to read in full, but this is currently only a partial response.
Their plan for regulation of hard drugs is two parts massive optimism and one part question avoiding. One example of where they express massive optimism is in their claim that people use more potent drugs just because less potent drugs aren’t available. They analogize the fact that since alcohol is legally available, some people choose to drink beer/wine instead of liquor. Sure, and some people currently choose cocaine instead of crack. That’s not going to be some new feature to the market that saps demand for more potent drugs. Anyone who has watched The Wire knows that the demand goes where the potency goes. They adopted specific strategies to obfuscate the fact that they had weak product.
Tied to this is the optimism that their volume limiting won’t result in exactly the same problem we have today! Joe Crackhead wants 5 units of crack on Tuesday, but Government Bureaucrat is only allowed to sell him 3 units. Do you think he’s going to just throw up his hands? When he goes back to sucking dick in order to buy the remaining two units off the black market, are you going to arrest any of the parties involved? Will you let those cops carry guns in case any of the parties gets violent?
Finally, (and this section is the most highly caveated, because I haven’t read the whole document), but I haven’t seen any analysis (or acknowledgement) of one of the basic laws of economics – if you make something cheaper and remove the barriers to transactions, consumption will go up. Most ‘plans’ I see for legalization really like to handwave over this, and some even try to give wholly unpersuasive reasons why it won’t hold. Given that it does hold, we’re not analyzing a situation where we can assume consumption is constant and that any measure of harm reduction from the status quo is a free benefit. We’re analyzing a situation where the harm reduction we’re able to accomplish trades off with new harms that flow from increased consumption across a larger user base.
Well, I think the proper comparison is more like coca tea / chewing coca leaves / milder coca preparations as being at the beer end of the spectrum – milder but harder-to-smuggle products which are only unavailable because of the iron law of prohibition.
(As an aside, I’m a little disappointed that the second image in that page didn’t go for maximum stereotyping … surely they could have found a charango used to smuggle cocaine instead of a ukulele 🙂 )
Regarding Joe Crackhead trying to buy more than legal limits, they are pretty clear that some activities would need to remain prohibited, including those involving violence. But most cocaine users are not Joe Crackhead, and reducing the harms associated with the illegal market supply the otherwise non-problematic consumers would be worthwhile – as they put it on p.11: “Even a partial reduction in illicit markets and prohibition related harms still represents a huge net gain for society as a whole”.
Regarding the possibility of increased use … well, yes, we would expect use to rise. But we would also expect average harm per instance of use to drop, and to drop considerably when we consider that legal regulation would allow more safe preparations to come to market, purity and dosage controls etc, before you even consider the harms to others that would be avoided by the most lucrative sector of the black market being largely taken out of the hands of criminals and terrorists. As they say, they favour a cautious, phased introduction, and if it becomes apparent that the use of a drug under legal regulation is so much more disastrous for society than the harms caused by that drug being supplied by the criminal market, then that drug, or that version of the drug can continue to be prohibited.
But it is at least plausible that, say, the ongoing carnage in Mexico, the rivers of cash flowing to the Taliban, the questionable commitment to human rights and the rule of law shown by the current president of the Philippines, etc, are too high a price to pay to combat a problem that could be managed at the cost of far less blood if we were only willing to let governments regulate the market so as to optimise for public health, and let non-criminals enter the market where they can be expected to behave more responsibly.
I imagine coca tea probably does more what you’re implying – compliments some and substitutes some for beer, not cocaine or crack, which was what they tried to claim.
Of course, you can detail all kinds of harms that flow from the black market. I never disputed that those exist. Without making a similar, scary sounding list on the other side (others here have stats on all kinds of crimes that are committed in order to afford their chosen drugs, and there’s very little reason to think that this will suddenly stop), I’ll just leave it with at least you’re acknowledging that the trade-off space exists, even if I think you’re probably being rosy eyed about how much the harm per user will drop. I think we have approximately zero good data in this space, so it’s mostly just advocates in an echo chamber getting more and more vehement that it’ll totally reduce harm a bunch!
@Controls Freak:
Huh. Does the end of alcohol prohibition in the US and the decriminalization of various drugs in other nations count as “good data”? If not, why not?
Under alcohol prohibition, whiskey was cheaper than beer because it was easier to smuggle higher-concentration illegal substances. When alcohol was re-legalized the economics no longer favored higher-concentration substances. Post-prohibition it no longer mattered so much to smugglers that they have a large arrest risk per unit volume of alcohol or to bar proprietors that they have a large arrest risk per sale or per unit time the bar is serving alcohol so a huge economic incentive to ship and consume harder drugs is removed. Buying alcohol did get cheaper – and more people did consume – but buying less potent alcohol (beer and wine) got much cheaper relative to the price of more potent alcohol. So economic incentives led to lighter drinking post-Prohibition.
Under alcohol prohibition when alcohol was scarce, people went blind or got liver failure due to drinking wood alcohol or other unsafe substances in a context where the people serving alcohol can’t be held legally responsible for serving bad products to customers. That problem also went away with the end of prohibition.
Under alcohol prohibition competing distributors who got into business conflicts sometimes resolved them using machine guns instead of lawsuits.
When “Heroin” was the brand name of a legal product produced by the Bayer company, people took heroin safely in pill form. A heroin habit wasn’t prohibitively disabling or expensive and the chief long-term negative health effect was constipation. After heroin was made illegal the drug became so expensive that shooting up became the preferred delivery method, adding a great many additional negative health effect possibilities (HIV, infections…) which would mostly go away again if it were made legal.
Portugal decriminalized all drugs in 2001 – sales was still illegal, but possession and use stopped being considered a criminal matter. This experiment went extremely well and the harm done by drug use has not increased – overdose deaths are less common there than almost any other country.
Spain and Italy have also decriminalized drug use, and have similarly not seen any negative effect in terms of increased drug harms. My theory says that decriminalization should have a similar kind of effect as legalization. If decriminalization had strong negative effects we might reasonably predict legalization would too…but it doesn’t.
We might also look at Amsterdam’s pot policy – teenagers there are less likely to use illegal drugs than they are in the US despite the existence of pot cafes which the authorities pretend not to notice. (There are current efforts to make pot production legal there as well.)
In short, all the evidence I’m aware of involving specific recreational drugs being legalized and/or decriminalized suggests less rather than more social harm caused by the affected drugs. Do you know of any examples to the contrary?
You can’t just treat all prohibitions as identical when there are salient differences. Make your argument without this, please.
…is a Rorschach test. Pretty much everyone looks at that data and sees what they already thought. People on both sides pick out particular stats with lots of qualifiers attached. The other case countries are similar. (Also note that if you want to make the alcohol comparison, historians believe that the effects of prohibition on consumption extended a couple decades after repeal, soo…)
If the most demand was for low-potency heroin, surely the black market is capable of providing it, no? I’ll note that this is a moment where salient differences between alcohol and other substances pops up. Alcohol can easily be manufactured in common concentrations that span a twenty-fold difference in volume. Given the quantity that must be consumed for the desired effect, that can be a significant barrier to smuggling. This is not the case for heroin. It is not significantly more difficult to smuggle your proposed pills of low-potency heroin.
Instead, what is the vastly more likely explanation for this phenomenon is that (like many other markets) the demand for these drugs follows a Pareto distribution. 50% of the consumption is done by 10% of users – problem users. In a world where the only heroin available is low-potency Bayer pills, these are the folks who smash up 20 pills to consume in a moment… or maybe they alter the substance on their own in order to change the delivery mechanism. If high-potency heroin were also available in the drugstore, they’d just buy that instead. Then, when prohibition happens, drug smugglers/dealers make the obvious choice – focus on the few, high-dollar users. Not only does it make them the most money, but it reduces the number of customers they must interact with, which reduces their chance of being arrested. Low-potency users substitute with other, readily-available substances anyway.
It is exceedingly unlikely that removing drug prohibition is going to simply solve the issue of problem users. They’re not going to just up and realize, “Hey, maybe I should consume fewer drugs!” Instead, you’re absolutely right that there will be a market for low-potency heroin, but it will be in addition to high-potency heroin, and it will partially complement and partially substitute for products like beer.
Let me break my rule about comparing prohibitions, so that I can appropriately blow your mind – prohibition of alcohol is a great example. From here:
People like to romanticize organized crime, and while they certainly benefitted from prohibition, they didn’t just start up only because of prohibition. They just added to their business. Also, we have good reason to believe that it didn’t meaningfully impact things like homicide rate. Teasing out details of lower crimes (and figuring out what can be attributed to prohibition-fueled organized crime and what can be attributed to intoxicated guys) is much more difficult to analyze, and I don’t trust most attempts.
But seriously, you shouldn’t think that all prohibitions are identical. Prohibition of marijuana is different from alcohol (one way this is true is that alcohol can be made from just about any food). Prohibition of either is different from heroin. And so on. The “all prohibition is the same and bad” crowd just bugs me. (It almost bugs me as much as the “Everything is solved if I use the word ‘treatment'” folks.)
“I’m skeptical you can convince the rightwards side of the country to do anything that might be remotely framed as helping criminals.”
That’s why I’m hopeful that something framed as “helping suspects who are innocent until proven guilty” might be easier.
The bail system does seem pretty stupid, to be honest. Especially because of how necessarily variable it is; a 1,000 dollar bail wouldn’t cause me to care enormously, but some people can’t pay it. I also feel that those who are going to outright run away aren’t going to care about the loss of some money, insofar as it beats losing their freedom; if you think you can beat the rap, then you would probably stay just to avoid getting jailed merely for running from your trial, right? I’m not saying there are zero cases where the money stops you from running but it doesn’t seem like there are many.
I have to say, though, that none of the studies really convinced me that getting off on bail helps your case in any significant way. Do the stricter judges that assign bail not also hear your subsequent case? And why didn’t anyone think to just create a randomized test by purposely bailing out some people and seeing what happened; cost? That experimental design only has the theoretical problem of, I don’t know, psychological factors induced by having someone else bail you out, which I guess is something but otherwise seems pretty legit. Cost doesn’t seem too unmanageable either, though you might have to limit the results of your study to inexpensive crimes.
Bail is kind of a test of whether you have loved ones who trust you enough to pay 10% of your bail to a bail bondsman.
Apparently, a lot of people who get arrested don’t.
Hmm
Can you actually not pay the bail yourself? How does that work? Or does being in jail sort of shut that whole thing down? If you can pay it yourself, then it’s also a test of whether or not you can afford to pay the bail bondsman.
A convict may have a lot of loved ones, but unless 10% of their bail is less than, say, $100, an awful lot of even nominally middle class people will have a hard time meeting that expense, given the atrocious savings and consumption habits we have. I recall a spate of articles coming out a few months ago trumpeting that a majority of Americans didn’t have cash on hand to cope with a $400 emergency. And a lot of people might reasonably prefer to worry about illness or mechanical failure rather than bailing cousin Schmucko out of the clink cuz he shot his mouth off and got in a bar brawl/got busted slinging meth/got a DUI.
Here’s the study. The numbers aren’t good, but I don’t think it’s fair to say that a majority of Americans don’t have cash on hand to cover $400.
The question let people check multiple categories if they would use a combination strategy to cover $400, so it’s hard to say, but 47.6% said they would pay cash, and 28.6% said they would cover with a credit card and pay in full next bill. (I’m in the second group)
The authors say that of the people who would pay by means “other than cash or its functional equivalent”, 22% reported they have the cash on hand, but they don’t clarify whether they consider using a fully paid credit card is the fuctional equivalent of cash.
https://www.federalreserve.gov/econresdata/2014-report-economic-well-being-us-households-201505.pdf
(See Question E3A on page 97 and the discussion of page 19).
According to the survey, if faced with a $400 emergency,
47.6% of the respondents would pay in cash;
28.6% would put it on their credit card and pay in full at the next statement.
17.9% would put it on their credit card and pay over time.
4.1% would use a bank loan or line of credit.
12.6% would borrow from friends or family.
2.5% would use a payday loan, bank advance or overdraft.
9.9% would sell something.
2.1% checked “other.”
14.3% wouldn’t be able to come up with at least some portion of the money.
1.7% refused to respond.
And worth noting that this is presumably one question out of many in a lengthy survey which most people want to complete reasonably quickly.
There’s a big difference in terms of the amount of thought and effort that will be put into figuring out a way to raise $400 when the scenario is “someone asks you and you want to give a prompt answer in five seconds” and “if the answer is no, you get locked in a cage where you will likely be raped and assaulted and miss your next day of work and lose your job, etc etc”
My guess is that making bail is the absolute emergency to end all emergencies. You sell the wedding ring, you call the loan shark, you do WHATEVER you have to do to figure it out…
Whoops – I should have read page 18. I’d love to see the data, but the authors address a couple of my issues above, so we can say a little more about the survey’s findings.
– A total of 53% of respondents said they would pay the $400 entirely through one or more of cash, check drawn on an account with the funds to cover it, and/or credit card bill paid in full at the next statement. (The authors characterize these three as “cash or its functional equivalent”)
– 47% percent of respondents* said they would pay at least a portion of the $400 through other borrowing, selling items, and/or would not be able to pay a portion. Of that 47%, 22% of that group said they had the cash but would borrow.
So of the respondents, 53% would pay with cash or equivalent, and 10.3% have the cash but would use borrowing or sale to cover at least a portion.
It’s definitely not good, but it’s not technically accurate to say that a majority don’t have the cash on hand to cover $400.
* Since 53+47=100, I assume the authors adjusted for the 1.7% who refused to respond.
It’s like ransom, but to the government!
Bail is a little like homelessness, which in practice is often a test of whether anybody you know would let you crash on their couch for awhile. It turns out that some people aren’t trusted by anybody who knows them well.
The bond is supposed to be based on the person’s means. If they want proof that Bill Gates will show up, they ask for a billion dollars.
That’s why the bail amounts in Scott’s post seem bizarrely low: we’re more familiar with stories about rich people or middle class people getting arrested and bail being set in five or six figures. Those kind of Bonfire of the Vanities-type stories are less depressing than the typical arrest.
They’re not saying $39 will cover someone’s bail — they say right at the top of the page that “bail [] is often as low as $250.” They’re saying $39 helps. Of course, by this standard any positive amount helps; the aim is presumably to anchor donations at some kind of optimal point.
I wondered about that too. “$39 can help us secure someone’s freedom” is awfully loose language. You might be right that they’re just saying it helps, but that would be kind of sketchy.
I bet what they’re saying is that $39 is the average total cost of paying someone’s bail once they get their money back. I noticed that Scott’s calculation was that, based on how much of their money they get back, providing an average bail costs about $30. If the $9 is how much it costs in overhead to get the money applied to the bail and collect it again on the back end (which seems reasonable) then the $39 figure would be right.
That is, for each additional $39 they raise, they’d be able to pay one more person’s bail. Not because the bail is set at $39 but because that’s the all-in cost of paying a $790 bail and getting paid back 96% of the time.
I think that the difference between “can help” and “will help” is that the former suggests that in the best case in the past, $39 was enough.
I’m really conflicted about this.
The libertarian in me sees the incarceration numbers as abnormal, hates the drug war, suspects that the state is up to no good and is probably harassing a lot of fundamentally decent people, etc. Whenever I read stuff like this, my emotional reaction is “This charity is a great idea and I should definitely contribute!”
But then when I start to think about it, my brain says, “Wait a minute, surely the population of ‘people who are arrested’ are significantly more likely to be criminals than the average population as a whole. Even if I concede that some of them are innocents being punished for no good reason, SOME of them are surely guilty. Why should I give my money to a cause that helps a decent amount of probably-guilty people when the amount of bad hombres benefiting from my malaria nets is assuredly much lower?”
Does anyone have a good response to this? I feel like I’m not thinking about this the right way, but I’m not entirely sure why….
Well, a lot of effective altruists fundamentally reject the notion that it is good or neutral for guilty or “bad” people to suffer – rather, suffering is bad, period.
Except if they’re good “shut up and multiply” utilitarians, saving someone from suffering in a way which will predictably allow them to go on causing more suffering should be bad period.
This is the antithesis of effective altruism: purchasing a hit of sweet sweet virtue signalling at the likely cost of human lives.
Per this post there is no real evidence that letting people be free pre-trial would significantly increase the harm they do to others.
Actually, per this post there’s evidence that being in jail pre-trial increases sentence length by as much as 10% and conviction rates by around 13%. The BFF gives even more favorable figures: a 400% increase in convictions.
That adds up to a lot of time when these guys aren’t capable of harming anyone in civilized society. Unless some dope pays to reduce their odds of ending up in prison that is…
If a criminal’s innocence or guilt is doubtful enough that how he arrives in the courtroom makes the difference between whether he gets convicted or goes free, how sure are you that he’s actually guilty?
Don’t equivocate between “convicted criminal” and “person on trial for a crime.”
I think Nabil’s thesis is that a high enough proportion of those acquitted are factually guilty for it to be worth imprisoning some of the ones that aren’t as an unfortunate side effect of locking up more actual criminals. I disagree, but it’s not exactly an incoherent view.
If they’re guilty, they’ll do the time, so the only failure mode is if they’re guilty AND they run away and don’t get caught thanks to your bail. I suppose they could also be guilty and get away with it, in which case they dodged some unauthorized punishment in the form of being jailed pre-trial.
But on the other hand, your money saves people from having to languish in jail if innocent, which is pretty big, and keeps innocent people out of jail for longer periods (potentially; like I said I don’t necessarily buy the studies listed here, but it could be true). On top of that, the money you give isn’t even used up in the same way; employee pay and operating expenses are, but since the bail comes back your donation could easily mean 10 or 20 people kept out of jail – as long as your guys come back to the courthouse you get to keep saving more of them.
Your argument gets much stronger if “the system” can tell bad from good guys and only lets the bad guys rot in prison because they can’t afford bail.
Having thought about this a bit more – I still feel like I cannot support such a charity.
But I would reconsider IF such a charity existed and promised to pay bail for those accused of victimless crimes only. I would happily contribute to paying bail for anyone whose sole charges were things like drugs, prostitution, gambling, firearms possession, etc. But I am not particularly interested in doing so for those accused of theft, assault, vandalism, etc.
You could make a similar argument about the right to legal counsel and the resultant system of public defenders :
Surely the population of ‘people who are arrested’ are significantly more likely to be criminals than the average population as a whole. Even conceding that some of them are innocents being wrongfully punished, SOME of them are surely guilty. Why should we secure for ourselves the right to legal counsel, if that helps a decent amount of probably-guilty people, when our efforts (constitutional and otherwise) could be better spent elsewhere? For example, by sending our public defenders to aid people in legal battles not pertaining to their having been accused of crimes.
Something I’ve never understood about bail: Why do we allow bail bondsman? Like, the way it works without bail bondsman (in theory) is that the judge picks a an amount of money that the defendant would be reluctant to lose by running off. And then the defendant puts that money up, and loses it if they don’t show up (and gets all of it back if they do). That isn’t a great system, as this post illustrates, but at least it makes sense.
But then bail bondsmen enter the picture. Suddenly, the defendant only has to risk a fraction of the bail set by the court (traditionally 10%). So now the judge has to wonder if the defendant will show up for court even though they’ve only stand to lose a fraction of their own money. So, naturally, the judge thinks that the bail needs to be higher . . . in equilibrium, it seems like the defendants end up paying exactly the same amount, but they don’t get it all back thanks to bail bond costs.
The only difference in the two scenarios is that with the bail bondsmen in the picture, people who don’t show up have private bounty hunters looking for them, not just the cops. But, of course, the state could just pay private bounty hunters. Is this all just a sneaky way to privatise hunting for bail jumpers without admitting to it? Or am I missing something?
I thought the smaller amount you paid to the bail bondsmen was non-refundable. Not sure if they can then charge you additional money if you fail to show, might vary by state.
Right, but that’s why it’s such a screwy system. Without bail, you are required to show up, and if you don’t, someone (the police)comes and finds you and you get in worse trouble. The idea of bail–as an alternative to just letting people go–is that people aren’t scared enough of someone dragging them back, and we can incent them to show up by holding their money hostage–and giving it back if they show up.
But with a bail bondsman, you’re right back to where you were before there was bail! The only reason to show up is that someone will come after you and drag you back, and things will be worse for you after they do. You’ve already lost the money you paid to bondsman, so no one is holding that hostage to get you to show up. And you haven’t risked the rest of the bail–that’s the bail bondsman’s money.
Which is how I get to the theory that it’s just privatising the function of chasing after people who don’t show up. But if we’re going to do that, it seems like we should fund bounty hunters through tax revenue or something, rather than pretending it’s part of bail.
I think they just didn’t realise that bail bondsmen exist and now bail bondsmen are viewed as a general good insofar as bail is bad, so no one wants to get rid of them
but this does of course bring up the question : why not get rid of bail, so I’m not disagreeing that the system is screwy or anything.
You need to be able to persuade a bail bondsman that you are a good risk.
If you look like the sort of person who won’t go, the bondsman won’t put up any money for you (edit: as Steve says above). My experience (below) makes me think they’re needed; they’re really accurate, on the whole — which makes one wonder why judges aren’t setting the bails that people end up paying bondsmen.
I, for example, got a bail so ridiculously high no bail number listed in this post gets up to even a fraction of it. Most bondsmen laughed in my family’s collective face, so to speak, just because of the sheer amount — but one fellow put it up.
We got everything dismissed before trial, so the bondsman got his cash back in short order; he clearly made a good choice — but if he could tell I wasn’t a flight risk, why couldn’t the judge? I feel like something crooked is going on.
The bail bondsman has a strong financial incentive to accurately determine who will or will not skip bail. The judge has a fixed salary, which is secure so long as he isn’t e.g. credibly accused of being a racist bigot. Depending on your goals, one of those incentives will lead to better outcomes than the other.
When you pay a bondsman, you willingly sign away rights that I don’t think the police could make you sign. When I got bail one time I was pretty shaken by what I was inviting a bounty hunter to do: come on to my property, “peep in windows”, et c. So they do have the ability to be much more effective that cops could.
While I can’t point to how the collusion originated organically, the cops/bondsman/local defenders (even private)/prosecutors are all essentially in it together. The one time I got arrested accused of a minor crime, I totally had a friend who had enough cash to make the (ridiculous-for-the-crime) $3000 bail, but the phones at the station couldn’t dial long distance, which means that most cell phone users can’t get called, so you have to get a bondsman with a toll-free number. I was able to leave a ~3 second message on a friend’s answering machine, and when she called the station they just told her to call the local bondsman! I ended up having to pay for a bond that I didn’t really need, hired a lawyer who chatted with the prosecutor; they determined yeah I was definitely innocent, but why don’t I just write the prosecutor a personal check for a few hundred bucks so the charges would be dropped? I had to of course pay fees to be held at the station overnight when I was arrested. So the station made some money, the defender made some money, the bondsman made some money. For those actors at least, there’s no reason to change anything.
Yes, it’s absolutely privatising the function of the hunting for bail jumpers.
That doesn’t sound right. Since you now have added private bounty hunters, the probability of people jumping bail goes down, and the number of people who jump bail who are then caught goes up. (My impression is that private bounty hunters are way better than the police, because the police have other things to do.) So you don’t need to set the bail such that the defendants end up paying the same amount, you can set it so that they pay a lower amount than they would have otherwise. However, now that lower amount of money is lost (whereas previously you could get it back) because it pays for private bounty hunters.
I’m not sure whether or not I would prefer to have the state pay bounty hunters. It seems almost Pareto-better to have the state hire more police, and then for the police to work on whatever public safety thing seems most important, which may be searching for people who skipped out on bail. I’m not sure whether this would be better than the existing system.
The problem is that there are two competing things going on with police: public safety, and revenues. So cops have priorities for really important work, and they *also* have priorities to make sure people are paying their car registration taxes and parking fees. Increasing the number of cops beyond their current numbers does not automatically provide labor to replace bounty hunters because of this tension.
except it inevitably ends up being “swat team raids for anonymous tips of having smelled marijuana, online prostitution stings, and traffic tickets”
It’s probably an evolved system. I imagine it went something like:
In the beginning, the defendant paid his own bail. But sometimes a relative would put up the money. That’s something that should be allowed, right? Then maybe a relative who couldn’t afford bail went to a lender and borrowed money to pay the bail. Given that you get the money back fairly quickly if the defendant shows up, and the loan was to a law-abiding family member, it probably wasn’t a bad risk for the lender and so they agreed. Eventually the lenders started skipping the relatives and loaning the money directly to defendants.
So each step seems reasonable, but then you get bail bondsmen in the end, which seems a bit weird. But if you outlawed them, you’d probably just get relatives borrowing the money for the defendant. That seems a little unfair to those defendants who don’t have willing family.
With regard to the comparison between BFF and AMF, and the issue of preventing suffering vs preserving life, keep in mind that a portion of the good from preventing malaria is in reducing suffering for survivors, not just in preventing deaths due to the disease. https://malariajournal.biomedcentral.com/articles/10.1186/1475-2875-9-366
And
http://www.givewell.org/international/technical/programs/insecticide-treated-nets#Possibledevelopmentaleffects
Is there any practical reason that things like GPS trackers and having people make regular checkins at police stations aren’t an option? If the main fear is them running away. Would be interesting to look at how successful these are for their cost
I’m not sure if this is still true, but the last time I checked many of those home-arrest time features require the arrestee to have a landline (the police plug something into your landline, and then it detects when your ankle bracelet or whatever is gone for too long). Since a lot of the same people who can’t afford bail also don’t have landlines, this could end up with the same issue of people being stuck in jail because they’re too poor to afford the jail-alternative.
Those systems were probably developed during the era when the landline was king, and using a radio signal to a base station was the best way to determine location in consumer electronics. Now, GPS is a thing, and the anklet itself should be able to talk directly to a cell tower.
I don’t know if there’s a firm that is making a GPS w/ no base station anklet, but if they do, looking at the price of the system vs. the costs of jail would be a good idea.
It seems like newer technology ought to be able to help out here.
GPS tracking devices would probably not just keep people from running away but also keep them from being at the scene of crimes since they wouldn’t have an alibi if the GPS reported that they were, say, in the liquor store at the time a man in a hoodie robbed it.
In general, new technology should be lowering the crime rate every year. The recent spike in homicides — up 29% since the year of Ferguson in the 30 biggest cities — was due to a massive ideological/political blunder by the ruling class.
“In general, new technology should be lowering the crime rate every year. The recent spike in homicides — up 29% since the year of Ferguson in the 30 biggest cities — was due to a massive ideological/political blunder by the ruling class.”
Can you elaborate on this? To me, this sounds like you’re saying that a poor, black ex-con is more likely to commit to an armed robbery because Hillary Clinton doesn’t understand him. I am always weary of the alleged effects of income inequality, “elites,” or other abstract, high-level factors on the rest of society.
I think the idea is that Ferguson caused a top-down change in urban policing approaches which led to an increase in violent crime – see Wikipedia.
I haven’t looked into the matter in enough depth to take a position on the truth of this claim.
The homicide rate has shot up in heavily black cities since 2014, especially in cities like Baltimore and Chicago with large scale Black Lives Matter protests.
I realize you may have read a lot of articles claiming that the Ferguson Effect doesn’t exist, but, how should I put it, they were trying to fool you. This is one of the clearest social statistics phenomenon I’ve ever seen.
That’s surely some of the problem, but https://en.wikipedia.org/wiki/List_of_U.S._states_by_incarceration_and_correctional_supervision_rate suggests that even the whitest states have very high incarceration rates compared to Europe and other First World countries.
Although there are 15 other countries with incarceration rates higher than white America, most of them are tiny random islands. The white rate is still about four times the total rate of France, a country not exactly known for its total absence of crime-prone minority groups.
From the Texas Department of Criminal Justice 2016 Statistical Report, p.1, they had 47,974 inmates classified as White on-hand as of Aug.31. Worldpopulationreview.com gives the 2016 White population of Texas as 21,889,275. Doing the math, I get a White incarceration rate of 219/100,000, a little more than double the French rate (given as 101/100k by prison policy). Doesn’t sound too bad for the state that produced John Wesley Hardin.
Your inmate figure excludes hispanics, but your total population figure includes them. For non-hispanic whites, your sources yield 47,974/11,821,951=406/100k. For hispanics, maybe 487. Blacks, 1523. Also, the numbers would probably go up another 10% if we included people in jail without conviction, the topic of this post.
I read through a few thousand homicides in Los Angeles County in 2007-2010 as written up by Jill Leovy for the Los Angeles Times. My impression is that most of the homicides involving whites were crimes of passion, often murder-suicides, where the killer had little chance of getting away. In contrast, Leovy’s recent book “Ghettoside” documents how hard it is to get convictions in South Central LA for homicides because snitches get stitches. Witness-murdering happened every couple of months or so in South Central.
It could be that the handful of very white states like Vermont and Wyoming could afford to have laxer laws but the whole process got federalized a long time ago.
It seems to me like there is a positive correlation between incarceration rate and population/geographic size, with the vast majority of the world’s prisoners being in China, Russia, and the US. To continue beating my decentralist drum, I tend to expect lower social capital in larger polities, all else equal, which probably also results in the culture having less of a problem erring on the side of harsh justice.
How do your expectations account for cases like the New England Puritans, where social capital ran very, very, very high, but deviation from strictly-policed communal norms was punished quite harshly?
What was the typical punishment for community norm deviation in Puritan New England? I could be wrong, but I imagine it wasn’t as unpleasant or dangerous as spending time in today’s maximum security prisons, relatively speaking. Also feel like going back so far in time risks a bit of not apples to apples comparison. There is a very big confounding factor, for example, if the punishment for homosexuality seems insanely harsh by our standards but the people meting it out were also all thoroughly convinced that homosexuality led to the eternal damnation of your immortal soul.
Also depends on what sort of deviation we’re talking about; sure, a very tight-nit intentional community based on belief in a certain brand of Christianity is going to be a lot less tolerant of people not believing in, or acting in accordance with, that brand of Christianity than a big, diverse city or state.
At the same time, I could imagine that same community being less willing to throw its members under the proverbial bus for offenses or suspicion of offenses not deemed threatening to the community ethos (hence witchcraft is a better false accusation to level in such a community than, say, theft, in addition to having the advantage of being hard to prove or disprove).
When I say that maybe a very big, impersonal polity with low social capital is going to have less problem with erring on the side of harsh justice, I also don’t mean just tough sentences, but the issue of how careful you want to be not to imprison the innocent in particular. For example, if the offender is a vague, criminal “other,” it’s a lot easier to say “well, if he didn’t do this bad thing, he probably did some other bad thing; either way, I feel better with him off the streets,” than if he’s “Joe from next door,” whose wife and kids you know, and the impact of whose imprisonment on e.g. his family, you can easily imagine.
Thank you 🙂
What? No.
According to the article, the only large countries (area > 1 M km^2, pop. > 100 M) in the top ten are the USA and Russia (with Russia in the 10th position). By contrast, 4 countries in the top ten are island states with a pop. < 1 M. If you count the American Virgin Islands and Guam as part of the USA, then two medium countries (Rwanda and Panama) enter the top ten.
Well, duh, that’s not a per-capita rate.
@vV_Vv
One expects smaller population countries to have greater random variance, so that doesn’t tell anything. One would have to measure average rate of imprisonment on smaller population countries versus higher population countries to see if mr onyomi claim holds water.
I think if you haven’t engaged with the work of Bill Stuntz, you’re missing an important aspect of the policy problem of mass incarceration.
As a law student I sometimes soapbox about “The Collapse of American Criminal Justice” by Bill Stuntz, because lawyers headed for either the defense-side or the prosecution-side of the criminal justice system should be familiar with the points he makes, and the basic implication for how absurd our criminal justice system has gotten.
Here’s one of my polemics, from an email:
“Stuntz does a really great job of taking a historical and law-and-economics look at why the criminal justice system right now is so depressing. It’s hard to encapsulate the whole book in one little paragraph, since there are so many informative details. E.g. I had no idea criminal prosecutors were usually private hires until long after the Constitution was written. Stuntz also considers how things could have (and in other countries, actually have) gone differently, e.g. most constitutions written after ours have substantive protections written into their equivalent of the bill of rights, while ours does not; our bill of rights provides procedural protections only. (Except for the proscription of “cruel and unusual” punishment, which our courts have interpreted into almost no proscription at all.)
[This is where I usually gulp for air, before launching into the real screed, with asides for Lens Bias and solitary-confinement-as-disciplinary-tool but what follows is a short emailed version with relatively few digressions.]
Anyway, the central theme is about how modern procedural protections (such as Miranda) were invented to shield black defendants from Southern racism, with the unexpected consequence that legislatures, both states and Congress, have adjusted to the expense of these procedural protections by passing new laws, such as tough sentencing, mandatory sentencing, “possession-implies-intent”, and other changes of this kind to force plea deals, with the result that more than 90% of sentences are plea bargains, not tried to a jury at all. (With unfortunate, perverse results when you look at the role judges end up playing in the process.) Sure, it saves money on prosecutions, but the upshot is a criminal justice “system” of police officers’ and prosecutors’ discretion, rather than a system of judges’ and juries’ discretion. Just like draft board discretion tended to mean that well off folks–anyone middle class or better, for much of the war–got out of going to ‘Nam, discretion in the U.S. is how we put 1/3 of black men between 20 and 30 in jail without the rest of us thinking there was a war going on.” (I admit I added the popehat link just now, otherwise this is true to an email I sent. I kind of regret some of the tone.)
For me, there are a lot of limits on Stuntz’ narrative, not least that he didn’t have as many clean numeric data points as I would have liked. Plus, I’m not really qualified (yet) to evaluate this. But I think it’s worth engaging with.
Anyway, if Stuntz’ narrative is correct, or an important component of the problem, then one of the most likely routes for solving the problem is to re-empower local communities to set the priorities for their police and prosecutors.
Lots of room here for someone to figure out how you evaluate, from an effective altruism model, an effort to pass a ballot initiative to split over-size prosecutor offices into smaller ones… or even measure whether this is part of the problem. I don’t know where to even start with figuring out a methodology that I’d trust.
Anybody want to hazard some sources or methods for figuring out if being from a county with relative homogeneity for race and class makes you less likely to end up in jail, as opposed to being a poor person from a county with a highly heterogeneous-for-race-and-class community? Or for articulating that idea in a way that’s less hand-wavy?
I mean, one important aspect of Ferguson was that the office holders were all white, middle class or at least long-term stable folks whose community’s main interest in policing may be that it be cheap and effective at locking up baddies (and anybody else from the wrong side of the tracks). The people on the wrong side of the tracks, of course, had a different outlook…
The reason Ferguson had few black officers was because it couldn’t afford to pay enough, while having an increasingly stressful work environment as blacks moved in and the crime rate went up. Blacks who can qualify as police officers are much in demand in modern American: they can work for higher paying big cities or they can work for outer ring suburbs where there is negligible crime to deal with.
To add to my rant, Stuntz offers a very strong counter-point to anyone who is inclined to jump to conclusions of hominid uniqueness, or whatever we’re calling it. Specifically, this same dynamic emerged at another time: Irish incarceration spiked during the years after the potato famine caused a surge in Irish immigration (and consequent racist and economic isolation of many young Irish men, for whom desperate circumstances had predictable consequences). What’s more, the consequence of spiking Irish incarceration was Irish grannies going door-to-door building unassailable political machines that elected fresh faced young Irish men to sheriff, mayor, and prosecutor offices, with predictable results for Irish incarceration results. What’s more, these ballot-box results (in Stuntz’ telling) parallel ballot-box results for African Americans in northern cities after those cities saw spikes in black immigration (as African Americans, and black men especially, moved north to escape Jim Crow) and, not unrelatedly, spikes in incarceration. The limiting factor, which has prevented the “pendulum” from swinging back the other way to limit hopelessness in black communities is that they haven’t had quite as much political success as the Irish did, especially in terms of wresting control of the very important power center: prosecutors.”
Edit: I moved this out of the larger comment; seems better organized this way.
Interesting arguments. As a fellow law student, thanks for turning me on to Stuntz…I’ll have to read him even though I’m looking to go civil, not crim.
If your central thesis is that decentralized and local control of prosecution and policing would result in less incarceration, how do you respond to Michael Javen Fortner’s description of black support for the Rockefeller drug laws?
The reason Stuntz doesn’t have many examples of black politicians taking control of racist criminal justice systems and reducing the incarceration rate is because:
A. Blacks who bother to vote actually tend to like law and order. See the new book:
LOCKING UP OUR OWN
Crime and Punishment in Black America
By James Forman Jr.
Illustrated 306 pp. Farrar, Straus & Giroux. $27.
B. Black-controlled cities that don’t maintain strict criminal justice tend to depopulate, such as Detroit and East St. Louis.
@Steve Sailer
Glenn Loury recently interviewed the author.
@Schmendrick:
I haven’t read Fortner’s description that you mention. I will look for it.
At a broader level, I think getting familiar with Stuntz’ proposed mechanism (judicial activism => administrative expense => legislative cost-cutting via end-runs around judicial power => more injustice prompting judicial activism) is a good thing for any law student to get firmly nestled in their heads, as another tool for thinking with. Plus, for the right professor, using this tool well can be a straight-forward way to show one is a reflective student, not a memory bucket.
Added to my reading list, thanks.
A lot of people are classified as white whom you might not expect to be classified as white (see linked picture). I read a study that showed the incarceration rate for people of various European backgrounds to roughly match the incarceration rate in their parent European country, although I can’t find it at the moment. If someone could find the study or a similar one, I’d be very interested.
https://i.redd.it/arujkuhk4w8x.jpg
If you want this to be clear to a general audience, rather than people familiar with EA, you probably should add “per dollar” or something.
This might not be true. The high relative imprisonment rate of African Americans would make it politically incorrect to complain about whites be imprisoned at too high a rate.
I don’t think this is correct. As you note above, people who are convicted of crimes are typically given credit for time served. So, if they pay the bail for someone who is ultimately convicted, then they didn’t keep that person out of jail for 15 days in any long-term way; that person still serves the same length of time total, just starting and ending their sentence 15 days later.
This may still be a good thing–as you point out, pre-trial detention can be worse than post-conviction imprisonment. And there’s something very harsh about “presuming” someone innocent while still putting them in jail.
But I think it does throw off the numbers you cite. If you’re trying to calculate a number for dollars/day of imprisonment avoided, you should count only the savings from preventing convictions. (Which in turn raises the question of whether this is the most cost-efficient way to prevent convictions. It might be, but you haven’t compared it to any other interventions aimed at preventing convictions.)
If bail was paid, aren’t we expecting them not to be in jail for very long? I thought that most of the reason people were spending those long times behind bars that eventually got credited against their sentences was because they couldn’t afford bail.
Right. But compare two scenarios:
Scenario 1
Joe is arrested and can’t make bail. So he spends X days waiting for trial. At trial (or, more realistically, when he pleads guilty) Joe is sentenced to six months. The X days count as part of the six months, so Joe has to serve six months minus X days, for a total time in jail of six months.
Scenario 2
Joe is arrested and the Bronx Freedom Fund pays his bail. He spends 0 days in jail waiting for trial. After the trial/guilty plea, Joe is sentenced to six months. He has no time served to count against that sentence, so he spends a total of six months in jail after getting sentenced.
So, either way, Joe spends the same number of days in jail (assuming he gets the same sentence). The only thing that the Bronx Freedom Fund accomplished was to have Joe start his sentence later; they didn’t change the total length.
(All this is ignoring the effects on his odds of conviction/average length of the sentence, which you account for elsewhere in your calculation.)
I see, good point. Although this is assuming the sentence will inevitably involve jail time. I’ll edit the post, but I don’t think it changes the (already large-error-barred) estimate much.
Another hard-to-measure effect: Maybe “time served” is just a handy sentencing Schelling point for judges? E.g. guy was in jail pre-trial for 30 days, convicted. Sentenced to time served (I mean, it’s not like the judge can give him time back and retroactively sentence him to 20 days, right?). Vs. same guy bailed out – does he get sentenced to 30 days, 15, or 45? Or just probation?
Good point about this not applying when the likely sentence won’t involve jail time. I don’t know how frequently that comes up. If there are places keeping people in jail when they’re accused of committing a crime that doesn’t put you in jail when you’re convicted–well, that’s really unconscionable.
But as to crimes where a jail sentence is likely, I think the issue I pointed out changes the analysis a lot. What it means is that the only effect this intervention has on days-in-jail occurs because its a good way to help people avoid being convicted or cause them to be sentenced to a lower term of imprisonment.
But there are a lot of competing interventions that have the goal of reducing the days-in-jail by reducing sentence length or odds of conviction. Most obviously, better funding for public defenders is a competitor intervention that reduces total days-in-jail by reducing sentence length or odds of conviction. Anecdotally, state public defenders tend to be very poorly paid/overworked (varying dramatically with the state). If Good Ventures gave a local public defender organization $404,800 to hire more lawyers, would that reduce the average length of sentences by more or less than giving that money to the bail organization? I’m not sure, but I don’t think we have the evidence to conclude it would be a lot less.
I know of one case where that happened. Friend of mine spent 6 months in psychiatric review or whatever its called pretrial. Prosecutor offered time served and the judge shot it down on the grounds that he had to have some additional punishment after pleading out.
@gbdub
That seems to happen a lot in my country, possibly also because people can get compensation for the time they spent incarceration innocently. So if the final sentence is the same as time spend in jail pre-trial, the judge will save the government money.
But note that six months in jail starting on a random Saturday night, and six months in jail after two weeks to get one’s affairs in order, can make a huge difference in whether one is going to have a home, a job, or a family when one gets out. Even if the suspect is actually guilty and the sort of scoundrel that we need to punish severely, that particular sort of punishment seems almost perversely calculated to maximize the probabiliyy of recidivism.
This is a good point, but I don’t think this part is correct:
You should count all the cases where there is no conviction even if there still would have been no conviction if the BFF hadn’t gotten involved.
That’s absolutely right and a good point. I was implicitly assuming that everyone gets convicted/pleads guilty absent BFF’s involvement. That’s obviously incorrect (though depressingly close to correct, based on the numbers in Scott’s post–BFF says that only 10% of people in jail are cleared of all charges without BFF’s involvement).
So, let’s try to put some
numbersplaceholders for numbers we don’t really have on this:The effect BFF has on days in prison not through changing people’s odds of conviction/length of sentence are equal to:
[average length of pretrial detention]*([odds of being cleared of all charges without BFF's involvement]+[odds of being convicted of a crime with no jail time]+([odds of being convicted of a crime with that would have carried a sentence of less than the average pre-trial confinement period]/[% of the pre-trial confinement period served in these less-than-pretrial-confinement-period cases]))So, using the numbers we have:
15 days * (.10+(?+??/???)To totally pull a number out of thin air, maybe 20%?This is a very good point. If 20% of people in prison are there pre-trial because they can’t afford bail, but 80% of those end up being convicted and that time gets counted as time served, then paying everyone’s bail will only reduce the prison population by 4%, not 20%.
Does anyone know the ultimate conviction rate for people who can’t afford bail?
One notable point here: I’m pretty sure that in the big pie chart at the top, in the state/federal slices, you’re looking at the most serious crime that people are *convicted* for–i.e., the highest charge that they pleaded *down* to. So many people plead down from drug dealing to drug possession, illegal use of a gun to illegal possession of a gun, from robbery to trespassing, etc. As Scott notes, plea bargains are almost everyone who ends up in prison, so we’re looking at statistics that could be heavily skewed to reflect on criminals more favorably than their actual deeds would.
This doesn’t detract from the main point of this article, which is great and worthwhile. But it does mean that when it comes to the rest of this graph, the prison population have collectively committed worse crimes than it shows them as committing, and even releasing everyone in the block with “drug possession” as the most serious offense could have serious social costs.
I’m pretty sure ‘overcharging’ is a thing as well- where prosecutors deliberately charge crimes they couldn’t prove in court, to secure better deals.
You’d think this wouldn’t work, because overcharged defendants would have an incentive to go ahead to trial, but most defendants aren’t legally knowledgable (in addition to being risk averse), and the public defenders have no incentive to push ahead toward trial if they can avoid it- more work for them with no reward. Also, even outside general laziness, most public defenders have such heavy workloads that they couldn’t possibly afford to take a sizable percentage of their cases to trial, and prosecutors know this.
Also also prosecutors and public defenders have to deal with each other again and again, while public defenders tend to only deal with specific clients once- even if a former client gets arrested again later, ze probably won’t draw the same public defender. This gives any given public defender an incentive not to antagonize the prosecutor, if they can avoid it.
I don’t actually have good numbers on how strong and consistent these effects are, but I think they complicate any claim that defendants are being routinely under-charged as a result of the plea system. This is one possible explanation for the data suggesting evidentiary strength affects plea deals less than we’d naively expect (ie http://link.springer.com/article/10.1007/s10940-011-9147-5).
Is it really more work for the public defender? If a PD has 50 cases a week, and all 50 of them choose a plea, does he get to take Friday off? If all 50 cases decide to go to trial, does the PD need to put in a 200 hour week?
Do we have any evidence that a world without plea bargaining would lead to less time spent in prison? Prosecutors have a game-theoretic incentive to overcharge, but they also have an offsetting incentive to drop charges to get the plea bargain. Without plea bargaining, both incentives would go away.
To consider the social value of bail reform you need to factor in the social cost of the crimes that would be committed by the people who get bail. Let’s say that only 2% of people on bail get arrested for committing a violent crime but the police only apprehend half of those who do commit such a crime. If we furthermore estimate the average social cost of a violent crime at (and this is just a guess) $30,000 this puts the expected crime cost per person who gets bail at $1,200.
Are you suggesting that 2% people on bail commit a new violent crime while on bail? That seems way too high. If you include misdemeanours, I’m sure that might be the case, but then the average ‘social cost’ is nowhere near 30k
I’m referring to the 98% stat that Scott gives us, which from the linked article (I think) refers to the 98% “of Defendants Who Remain Arrest-free During the Pretrial Release Period” for “Violent crimes”. Since violent crimes include murder and rape I think 30k might be an underestimate.
And from a moral perspective, it’s not as if violent crimes are the ONLY crimes worth caring about.
I wouldn’t want my charitable donation going to releasing someone who goes out and breaks into cars, either.
According to the linked article, 2% of the people released pretrial are re-arrested for violent crimes, and 9% for other crimes.
To most people, the fact that imprisoning someone before trial reduces their chance of committing an unrelated crime doesn’t count. They have a deontological rule called “justice” which says that you’re not supposed to count such a thing as a benefit for the same reason that we shouldn’t jail people for Minority Report-style precrime.
It’s only utilitarianism that forces you to count it.
I disagree as evidenced by the wide support for our current system which sure does look like “if someone is poor and the police think they belong in jail let’s just keep them in jail for a few months and ignore the part about our legal system when you are only supposed to go to jail if you have a trial or admit guilt.”
I actually think that, like Scott, most people do not realize just how much time innocent(until proven guilty) people spend in jail. I think this is a good issue to raise awareness on because I would assume that most Americans would not actually be ok with a man spending 60+ days in jail waiting for a trial that, IF he is found guilty, will sentence him to 60 days in jail. It seems like a gross miscarriage of justice, by American standards as I understand them.
Edit to avoid nitpicking I understand that the 60 days was a plea deal and he might get more time if found guilty by trial but I think the principles if applied to a hypothetical case where the above is true, still stand.
I’d argue that your social cost is more relevant to the direction of bail reform – if it’s socially costly to let bailed defendants out of jail pending trial, then maybe we should abolish bail altogether and hold all defendants, and if it’s not socially costly, maybe we should abolish bail and let defendants go pending trial. Unless bail deters crime or is seen as some kind of tax to recover the costs of pre-trial crime, I’m not crazy on equal protection grounds of letting wealthier defendants go and not poor defendants.
I guess the question I’m interested in is the degree to which bail ensures that defendants show up. If you have a bail bond and the bondsman tracks you down, it’s basically insurance against the costs of recovering you. If you have a bail bond and the bondsman just eats the loss, then I’m not sure what good it does.
I would think that the value of *not being in jail* for a few months is greater than $1,200, so your calculation suggests we should pay for the average person’s bail.
A simple algorithm could probably identify a population with a base rate of offending in the 4% range for the relevant time period, and you surely don’t advocate throwing all of them in jail based on such a calculation.
My guess is that this argument is heavily influenced by status quo bias.
“I would think that the value of *not being in jail* for a few months is greater than $1,200, so your calculation suggests we should pay for the average person’s bail.”
As a simple economist I define the value of something as what people are willing and able to pay for it so no for lots of poor American criminals, and for EAs who don’t intrinsically value Americans more than Africans.
This seems like a strange way to define value. Is it a sort of ‘revealed value’ in that if I don’t spend all my money feeding the homeless then I obviously value a few dollars above food for a starving man?
https://en.wikipedia.org/wiki/Revealed_preference
“Is it a sort of ‘revealed value’ in that if I don’t spend all my money feeding the homeless then I obviously value a few dollars above food for a starving man?”
Yes.
Spookykou:
Remember, we’re not talking about moral values or some kind of God’s eye view of values here–we’re saying that if you personally spend $20 on lunch for yourself rather than feeding a homeless guy standing on the corner next to the restaurant, you’ve demonstrated that you preferred spending that $20 on your own lunch rather than on feeding the homeless guy.
This system of evaluation seems rather fickle.
I would readily concede that I would rather lose a quarter than physically hand it to a homeless person, this says a lot more about how I feel about interacting directly with homeless people than it does about how I value money vs homeless peoples utility.
The ‘value of a dollar’ is deeply bound to the context in which that dollar is mine and the context in which I would ‘spend’ it. It seems to me the risk that by simply observing my behavior you are capturing interaction/contextual barriers/costs rather then a more generally applicable understanding of how I value money is too high.
I would readily concede that I would rather lose a quarter than physically hand it to a homeless person, this says a lot more about how I feel about interacting directly with homeless people than it does about how I value money vs homeless peoples utility.
I guess you mean that because the people in question often fail to pay bail amounts <$1,200, by revealed preference they don't value their freedom that much. But I assume that people mostly fail to pay relatively small bail amounts because of liquidity constraints, not because they value their freedom at less than this amount. Of course, I could be mistaken about this.
Now if you're right that the problem isn't liquidity constrained, but simply that the person in question prefers $1,200 to their freedom, then you are also correct that the efficient outcome is for them to stay in jail. Simply put, there are gains from trade from them hanging out in jail.
But this raises a rather interesting question. You're effectively suggesting that society should just pay a certain segment of the population to hang out in jail. Setting aside the political feasibility of such a proposal, it strikes me as quite ethically wrong, suggesting the calculation went wrong in some fashion. But if you are willing to endorse this proposal, then I will concede the point (under your assumptions).
(Of course, your calculation neglects the expense of incarcerating a person, which is also borne by society. Google suggests it will be more than $1,200, making this policy a net loser for society. This suggests that the government should just post bond for accused who can't afford it.)
I also thought that 30k was an overestimate so I did some googling.
According to this
http://achalfin.weebly.com/uploads/8/5/4/8/8548116/chalfin_econcost.pdf
The economic cost is 310 billion a year, including undereporting, and 200 billion a year reported.
So I would guess the caught/total is more like 66% and not 50%, and there is also the possibility that people on bail receive more scrutiny so it might be even higher. I doesn’t matter much thought because according to wikipedia rate of violent crime this gives a cost estimate of 250k for each crime (including unreported), and a 7.5k cost per person who gets bail. Around 80% of this cost is murder and aggravated assault, so even modest differences in distribution of crimes on the population of people on bail could make a big difference, but most likely James Millers’s is an underestimate.
Now the cost of keeping someone on minimum security prison according to this
https://www.bop.gov/foia/fy12_per_capita_costs.pdf
is something like 60 dollars per day, considering that the average given in scott’s post is 51 days that gives ~3k cost of keeping someone in prison. Putting the additional consideration of labor lost might be something like 2k*”the number of minimum federal wages on a job he otherwise would get”.
Depending on the differences in profitability on jobs from someone who can’t get bail versus someone who can, it would seem that bail is the better system from a utilitarian perspective precisely because it is explicitly discriminatory against the poor. Making this politically palatable is an exercise to the reader ;). (All this pending more accurate data, or maybe some factor I’m not seeing, the numbers seem close enough to swing one way or another).
Oops. It seems I implicitely assumed that most people in bail get innocent veredicts. Ignore that last part about labor lost. Considering that, per scott’s post, both guilty veredicts and lenght of sentence is affected by being in bail, then in any case the net cost of the bail system is negative. Also there’s the difference of whether harsher sentences increase recidivism, and this is getting more convoluted than I want it to. So, pending further work, I revise my conclusion, bail system seems to be pernicious though maybe for non-obvious reasons.
You misread the NPR article. The guy almost took the plea deal, but at the last minute decided as an apparent matter of principle not to. He finally got bailed out (for $400 to pay the bail bondsman), and when the article went to press he was on the outside waiting for his case to go to trial.
Thanks. Fixed.
(currently the paragraph in question appears to have a confusion of verb tenses)
Americans are VERY CONCERNED about the possibility that a dangerous person might not be in gaol, and are more likely to think this is worse than putting the odd innocent in by accident than people in most other OECD countries.
America also has way more murders than other OECD countries. I’m sure these aren’t unrelated.
but which do you think effects the other
Is this a serious question?
It could be. Our harsh prison system definitely ruins some people’s lives enough to push them toward further crimes, which could include murders. I strongly suspect that’s a smaller effect than the other way, but I’d be interested in seeing any studies on either topic.
if there are more criminals you probably are more interested in punishing criminals
but more punishment of criminals may well create more criminals, and also the attitude may
so yes it’s a serious question
Shouldn’t the baseline case be that punishing criminals creates fewer criminals? If you make an activity more costly, you generally get less of it.
I’m pretty sure there have been studies showing that harsher sentencing reduces crime (at a minimum, since it keeps criminals off the street). I know some people allege second-order effects, but I’ve never found these particularly plausible. If you know of some evidence, please point it out.
Also, I understand that sentencing and law enforcement got much harsher in response to the crime wave in the 1980s. Tough on crime prosecutors were elected, mandatory minimum laws were passed, etc.
So I think there should be a strong presumption that the causality runs from high crime to harsher laws.
Isn’t this one of those well-known factoids that go against the naive intuition?
I’ve heard about claims of at least two effects: Most of the people who are on the margin of committing a crime do not often consider harshness of prison sentence that much. How reliably they think the police will catch them, however, does have more effect.
Second one: the prisons are often far too good at teaching the inmates the skills how to to be even worse criminal (or better, depending on your view point) and providing them with a social peer group. The prison sentence will hurt their chances of getting a respectable job afterwards, just by a virtue of being a prison sentence, and if the prison sentence is long, the marketable skills they might have had will deteriorate.
There’s also a third plausible, indirect one. If a parent sends much time in prison, it can make life both emotionally and especially financially more unstable to any family they might had. It’s probably a stretch to claim that there’s effect (because I can’t be bothered to spend my day searching for statistics), but it will probably not make it easier for their children to grow up to be upstanding citizens.
Well, “factoid” implies something that is widely believed despite being false, so maybe yes.
I have only passing familiarity with the literature, but my understanding is that while deterrence effects are controversial (though many people claim to find them), there is lots of evidence that putting more people in jail reduces crime, due to the incapacitation effect (i.e. keeping criminals off the street).
Here is one relevant paper:
https://academic.oup.com/qje/article/111/2/319/1938359/The-Effect-of-Prison-Population-Size-on-Crime
Another Levitt paper which takes for granted that higher arrest rates reduce crime, and asks why; concludes it’s deterrence:
http://onlinelibrary.wiley.com/doi/10.1111/j.1465-7295.1998.tb01720.x/full
This paper found a strong deterrence effect from the death penalty:
https://academic.oup.com/aler/article/5/2/344/131680/Does-Capital-Punishment-Have-a-Deterrent-Effect
Here’s a review article from 2006, also by Levitt. The abstract:
http://annualreviews.org/doi/abs/10.1146/annurev.lawsocsci.2.081805.105856
I wonder how the complexity of the justice system affects deterrence. Most crime is apparently committed by people with little education and low IQs, so complicated rules based on law, police procedures, etc., determining how harsh a punishment you can expect for committing crime X probably look, to a lot of the criminal class, like a random number generator.
America has more *murders* but not more violent crime. For example, the U.S. has ~400 violent crimes per 100,000 whereas the UK has ~900. I don’t see how you can blame the increased lethality on anything other than our gun culture.
http://www.criminaljusticedegreehub.com/violent-crime-us-abroad/
Bottom line, we like our prisons brutal, we like our prisoners exploited and raped, and we want them to be locked up a long time. The key issue with our murder rate is the gun culture and the key issue with our incarceration rates is severity in sentencing.
You need to tackle the fundamental inhumanity and length of our prison system rather than hoping that non-violent offenders will save the day and get our incarceration rates back to normal. IMO this is one of those issues for which there is no fast and easy technocratic trick — it requires a change in culture and some national soul searching about how we deal with criminals.
@rsj:
I don’t see how blaming gun culture helps. Is that premise falsifiable? Does data bear it out? All the data I’m aware of doesn’t seem to support it.
For instance, if you divide out the US murder rate by state you might notice there are several US states with a lower murder rate than the UK; two of the states in this category are Vermont (with the least restrictive gun laws in the union; neither open carry nor concealed carry require a permit) and New Hampshire (home of the Free State Project and thus, oodles of libertarians).
If you look at a geography-based map of homicide rate, you might notice that the trend is highly regional and doesn’t seem to track particularly well with “gun culture”. California, New York, Maryland and DC have a lot less of a gun culture than Vermont, New Hampshire, Idaho, or Montana but have much higher murder rates than any of those. A few trends I’m aware of include: (1) low-population density states tend to have more “gun culture” and LESS murder; (2) low-latitude states tend to have more murder; (3) poorer states tend to have more murder.
If “gun culture” were responsible for the higher murder rate of the US overall, wouldn’t we expect that relationship to show up in the state-level data as well? Looking at the map…do you believe it does so?
Is there some evidence that Americans do care more about this than inhabitants of other OECD countries? Eg surveys? Because I’m one of those other inhabitants and in my vague observation my fellow citizens are fairly concerned about this too.
This isn’t a rigorous explanation, but Americans have living memory of major cities becoming uninhabitable by crime. Once it reaches some threshold that the cops cannot keep up, criminals know they are unlikely to be caught and everything breaks. Americans care about crime the same way the Dutch care about maintaining dikes.
Who were the criminals preying on, in the then-uninhabited cities?
Less hyperbole, please.
It’s not unbelievable or hyperbolic to claim that criminal elements can render cities unlivable to such extent that law-abiding citizens have to vacate the area, resulting in urban decay. Indeed, large-scale migration of people from urban regions to suburban or exurban regions is a pretty well-documented phenomenon. if you’ve never heard about this, just ask nicely and I’m sure Edward Scizorhands will give you many examples.
As far as I can see, this is a completely natural meaning of uninhabitable. If the local council declares a dwelling unfit for habitation, do you write an angry letter chastising them for hyperbole (assuming that the building did not become extremely radioactive, filled with toxic fumes or otherwise immediately incompatible with life)? If the answer is no, then perhaps you could extend the same charity to SSC comments.
I am used to comments like this on contentious issues, where hyperbole is used to say, overstate the plight of the poor, living wage (they are not literally dying!) etc, but I am curious why overstating, in as you point out a trivially obvious way, the level of inner city crime in America would generate such a response.
Yehonatan Givati, “THE COMPARATIVE LAW AND ECONOMICS OF PLEA BARGAINING: THEORY AND EVIDENCE” at p 14.
Note I do not think this is a total explanation.
No, 98% avoid getting arrested for violent crimes while free. DC has 50+ unsolved homicides per year (in 2016 that was out of 162 homicides) and innumerable unsolved assaults and robberies (they ever catch the guys who beat up Matt Yglesias?). Maybe DC police are so especially incompetent that almost all crime there goes unsolved and at the same time lots of innocent men get prosecuted but it isn’t the way to bet.
^This
Also, there’s a certain perversity in describing reducing the odds of a criminal being convicted as “helping people.”
If you put a predator back on the streets, you’ve helped one person at the cost of harming the other people who will be his future victims.
The kind of guy who ‘may or may not’ have attacked cops is a menace as long as he’s free. Regardless of whether or not he committed that particular crime he’s definitely done something. One way or another he needs to be kept away from civilized society and paying his bail just makes us all worse off.
Did you just advocate framing people for crimes they didn’t commit because you don’t like the way they look?
It can be argued under the same reasoning one would use to argue that you should kill one patient to use his organs to save several people. It is statistically likely that some people will commit crimes, and if you’re a pure utilitarian, imprisoning someone who hasn’t committed a crime might save, on the average, more than one other person. If so, you should imprison that person.
I am not a utilitarian, by the way.
That was a bad example, but look at the other arguments Scott gives in favor of paying the bail:
Preventing people who may well be guilty from being convicted because you made it more difficult for them to make incriminating statements, or because the witnesses disappeared/were bribed/threatened, or because they managed to do some last-minute BS “pro-social” activity and get a nice suit for the trial instead of showing up in a prison uniform/gang attire or just because the prosecutor got bored, doesn’t strike me as a particular effective way of doing good.
I think Scott lives in a high-security liberal bubble: he may get mad when the SJW talk shit about the Silicon Valley, where his friends work, but because of their socioeconomic status, he, his family and his friends are very unlikely to deal with the kind of people who would benefit from that kind of intervention (he may have to deal with them professionally, in a highly controlled environment, but he doesn’t have to live next to them). Therefore, he supports this kind of interventions because “reducing incarceration” is a standard liberal virtue signal, here dressed in the effective-altruism utilitarian pseudo-math.
EDIT:
In case I wasn’t clear, I’m a big fan of “innocent until proven guilt”, but reducing incarceration by primarily increasing the false negative rate of the justice system is not the way to go.
“Incriminating statements” can mean things that don’t really prove guilt, but are portrayed that way in court. E.g. a suspect says something slightly different from what they told the police, or they make a claim which is contradicted by another witness. Even if the other witness is wrong, calling into question the suspect’s honesty can be enough for a conviction. See examples in this video: https://www.youtube.com/watch?v=d-7o9xYp7eE, particularly around 15:30
If it is the case that judges and juries are swayed by the suspect wearing a suit, the solution to that is not by preventing poor suspects (and only poor suspects) from wearing a suit.
Alternatively, “incriminating statements” could be something completely made up by another inmate who has a grudge, or who wants to help the police in exchange for some expectation of better treatment.
So, you’re saying that increasing the likelihood of conviction and length of sentence by making the defendant appear worse (unshaved, has said some self-contradicting things, hasn’t been able to show his goodwill) is a good thing.
I strongly disagree with you on that, but even assuming you are right, why only do that to poor people? How is it remotely fait that if you’re middle-class you get to avoid pre-trial detention and if you’re not, well sucks to be you? How does such a system even come into existence if not to screw the poor?
Also, if you’re such a big fan of “innocent until proven guilty”, you should not favor blackmail like “since you can’t pay for bail, you’ll have to plead guilty or spend more time than the plea bargain in jail”.
I think it’s pretty obvious that reducing incarceration in America is unusually likely to be a good thing, given America’s absurdly high incarceration rate comparable to other Western countries.
Something is going wrong in the US legal system that’s leading to far more imprisonment than is actually optimal.
[EDIT: also, note that the benefit of bail reform is apparently mostly via reduced plea deals.]
I think it’s pretty obvious that reducing incarceration in America is unusually likely to result in great harm, given that most of the people incarcerated in America are murders, rapists, robbers, thieves, and the like. It’s possible that you may be able to release only the harmless ones, and it’s even possible that releasing a proportional share of the dangerous ones will still do more good than harm, but I wouldn’t call it “unusually likely”
Strike “legal system”, because whatever is going wrong probably happened a few steps before the legal system was called in to deal with all the murderers, rapists, etc.
> I think Scott lives in a high-security liberal bubble
Doesn’t Scott work in a psychiatric hospital outside Detroit? He’s posted repeatedly about how he has to periodically remind himself that sometimes people aren’t sexually abused growing up.
If everyone you encounter in daily life is either a rationalist, a nurse or medical doctor, or someone undergoing treatment for mental health issues, you aren’t living in a standard-issue upper-middle-class liberal bubble, but you aren’t getting an unbiased sample either.
No one is getting an unbiased sample though.
Regardless of whether or not he committed that particular crime he’s definitely done something.
Wait…what? Because someone is accused of one crime, they’ve definitely committed others?
What basis is there to assume this?
Well, statistically speaking it is true that a person accused of a crime is more likely to have committed other crimes, but presumption of innocence and the right to a fair trial before being punished are important principles that we should defend.
There are people who live as career criminals. The police and their neighbors all know who these guys are and for the most part they’ve already got records going back to when they were kids. They’re not particularly intelligent or even very discrete about their lifestyle.
But despite all of that, charges that can stick only come along fairly irregularly. They spend long periods outside of prison until someone can put together a solid case on them. Blackwell’s maxim is operating in full force: ten guilty men get to run free for every innocent man saved by criminal justice reform.
Anything which reduces the active population of career criminals is a public good.
President Duterte thanks you for your endorsement. The rest of us will pass on the vigilantes and death squads, thank you.
It doesn’t seem as though Duterte’s methods are necessary. Bratton et al seem to have done just as well here, as evidenced by the fact that the ghetto my father grew up in is clean and trendy enough that I’m seriously considering moving there.
But yeah, enjoy your moral superiority. I’ll pass on the riots and gangs myself.
Your opposition to the most fundamental principles of Anglo-American justice are a bit concerning.
Minor nit, but it’s Blackstone.
@’There are people who live as career criminals’
Every drug dealer I’ve met had a straight job- for benefits, and so they’d have an excuse for having some cash and rent money, and because if you are a hard worker at dealing drugs you probably work fairly hard in general. And to expand the ring of friends they trust enough to supply with drugs.
‘bail reform might be tied with drugs for the easiest reform’
Lot of institutional resistance to both. Ghettoside can be criticized -crusading reporter in search of crusade interviews a bunch of mid-level bureaucrats and discovers evidence we need to hire more mid-level bureaucrats- but hiring more homicide detectives to get more homicide convictions might work. It’s got institutional support. It’s cheap.
I don’t know, but I hope that that wasn’t what Nabil had in mind as their central example of a career criminal anyway – it’s just so different from most of the other things we commonly think of as crimes (and so weird how not-weird we find it). A ‘career criminal’ suggests as its central example someone who makes a living by victimising others … theft, mugging, burglary, extortion, possibly hitmanry, which by and large speak of a callous disdain for one’s fellow humans that is part of a very different skillset from those required to be a successful retail provider engaging in voluntary transaction which are, for what are pretty arbitrary reasons, obliged to take place outside of the legal marketplace.
(Yes, of course the fact of prohibition draws shady characters into the market, such that your median seller of, say, cocaine, is likely on average to be a much less upstanding citizen than your median seller of alcohol or tobacco under the present regime, but that’s not a result of any properties inherent to those three drugs)
@Winter Shaker,
Yes, you captured my meaning there. Also for future reference I’m a man.
I won’t defend the drug war per se: I’m straight edge and would like a wholesome neighborhood but I’d be satisfied with one little corner of the world being drug free. I’m more anti-anti-drug war in that the people opposing it don’t seem to realize that this is the modern equivalent of getting Capone on tax evasion. A lot of crooks will go free if there’s no pretext to arrest them.
Most criminals aren’t career criminals. Criminality follows a textbook power-law distribution, where 20% of criminals commit 80% of crimes.
But in that model surely most crimes are committed by career criminals? Meaning the people caught committing crimes are more likely to be career criminals?
Career criminals are probably better at it than amateurs, too. Meaning they’ll be less likely to get caught on a crime-by-crime basis.
Whether this is enough to make up for the underlying power law, I don’t know.
I believe criminality follows a fairly classic 80-20 rule (20% of criminals commit 80% of crimes), so a random crime is significantly more likely to be committed by a repeat offender, but not overwhelmingly so.
(I’m glossing over some details here. That 80/20 rule refers to convictions, and bail is for people who have been charged but not convicted. P(random person who has been charged is a repeat offender) may be higher if previous criminal record is taken into account, lower if they are charged for multiple crimes at once, and probably other factors as well.)
There are people who live as career criminals.
I don’t doubt these people exist, but the fact that there are career criminals in the world doesn’t mean anyone who is accused of a crime is probably a career criminal. False accusations happen, and I don’t think they’re particularly rare. Acknowledging that is compatible with acknowledging that there are people who commit lots of crimes and get away with it.
So you’re against any bail at all: if arrested, you’re in jail until trial, period?
That’s going to be bad for everyone. You’ve got to suspect trollery here.
I’m not against bail as a general rule. I’m against clueless upper middle class people signalling virtue by paying the bails of random criminals.
There’s a kind of “see no evil” thing going on here where people shut their eyes tightly rather than see an, ahem, black and white situation. A guy who can’t scrape together $500 and is accused of trying to jump a cop is not some poor waif in need of assistance. We’re talking about men who have gone feral.
If you want to help people for the love of God at least help people who aren’t going to go on to harm others!
Unless of course he didn’t jump a cop and was just rounded up because he’s one of “the usual suspects”.
Though upper middle class people might want to save some sympathy for themselves; another part of bail is that if the persecutors DO get a hold of an upper middle class person rather than an indigent career criminal, instead of allowing for the routine low bail amounts, they’ll push for a much higher bail (on the grounds that the UMC person has resources which make them a flight risk), one the UMC person also cannot pay. Since unlike the career criminal, the UMC person is very afraid of jail, this will “encourage” a guilty plea. (For an extra bonus they can hold out for a felony and perhaps get a self-inflicted death penalty)
Jesus, dude. What the fuck ever happened to “innocent until proven guilty”? It’s so bizarre to see someone actively endorsing trial-by-media around here.
55% of the people supported by Bronx Freedom Fund are eventually found not guilty.
A guy who can’t scrape together $500 and is accused of trying to jump a cop is not some poor waif in need of assistance. We’re talking about men who have gone feral.
This is an incredibly absurd generalization for which you have provided zero evidence.
Which doesn’t demonstrate their actual innocence, and certainly doesn’t demonstrate that they are not “feral” (i.e. poor and low-status).
Personally, my feelings are that people should not be punished for not committing crimes, and it’s better to let perhaps a half-dozen guilty persons go free than punish an innocent person. But Nabil ad Dajjal seems to take the view that the role of the “justice” system is to keep the lower classes in their place, and that’s not exactly incoherent, or incompatible with the way the “justice” system is implemented in the US.
But a guy who CAN scrape together $500 and is accused of trying to jump a cop is a fine fellow and should be released pending trial?
Guilty until proven innocent?
Whether or not someone is punished for a crime should be determined by whether or not the prosecuting entity (typically, the government) can legally obtain strong evidence they committed the crime, not by whether that entity can strongarm them into pleading guilty by making the process of a trial more harmful than the sentence. The US Constitution specifically has clauses to prevent this issue, such as the right to a speedy trial and the limitation on bail in the 8th Amendment, and it seems the problem is that they aren’t strong enough and/or are not enforced properly.
Implemented correctly, sometimes this justice system will allow the guilty to go free. That’s better than cops breaking into innocent people’s homes, rummaging around until you find something, and throwing them in prison for it.
If you put a predator back on the streets, you’ve helped one person at the cost of harming the other people who will be his future victims.
This is something I agree with. However, it implies you know that Victor is a predator. In practically all of the cases of injustice famous enough to reach my attention, the system went off the rails when it concluded guilt on someone later discovered to be innocent. Or, conversely, it concluded innocence on someone later discovered to be guilty. In other words, if my observations are a valid cross section of reality (corrections welcome), injustice is very often a product of an erroneous finding.
Meaning that the primary problem is one of accuracy.
What if the narrative portraying someone as a multiple offender who never quite served the time he should have turns out to be because he was in the wrong place at the wrong time one day when he was 18, the system implied guilt but couldn’t prove it in court, and every pick-up since then was nothing more than a reinforcement of that reputation? (How often does that actually happen?)
Is the incarceration problem due to a noble system dutifully putting away true predators? Is it due to a flawed system rounding up thousands of souls on the fence, killing their prospects, and creating such predators? Is it a combination of both? How would we tell? How do we know a finding about a person on the margin won’t be found false much later?
Anytime you want to test something, you are going to get false positives and false negatives. You can decrease both by spending more time and money collecting data but most of the time you’re trading one off against another.
I realize this must sound condescendingly obvious but there really isn’t any way to ensure that no innocent person will get caught in the wheels of Justice. And the system we have now already focuses far too much on those type I errors at the expense of the majority who will never even be accused of a crime.
If you want to spend more on policing, I’m all for it: that’s win-win. But biasing the justice system even more towards making type II errors is a bad idea and needs to be opposed.
So far you’ve only asserted this and hand-waved something about each criminal who goes free having multiple other victims.
Others pointed out that this same utilitarian calculus implies we should kill people and harvest their organs to save multiple other people.
I think you have not made a very good case for this conclusion of your so far.
I realize this must sound condescendingly obvious but there really isn’t any way to ensure that no innocent person will get caught in the wheels of Justice. And the system we have now already focuses far too much on those type I errors at the expense of the majority who will never even be accused of a crime.
My thinking is that in the SSC crowd, you can stipulate that a 0% false positive rate for finding guilt is impractical. I see little wrong with making a point as if to remind us of something we all already know, and to establish we’re on the same page.
That done, you need to then move on to logistics. E.g., you need to now discuss how much money would now be required to reduce the false positive rate beyond what it is now, and show that that money could not make things better if spent in another way. Or, talk about how we might go about finding these things out.
I think the claim that false positives are currently outnumbered by false negatives is not yet something you can stipulate. Furthermore, it’s not clear whether this is the most important factor. For instance, a procedure that incorrectly convicts ten innocents of murder at the expense of letting a hundred off for petty theft might still be argued as erring too far toward the conviction side.
I read this as “Our system does far too much to prevent innocent people from going to jail, because this results in criminals going free, and then innocent people are the victims of crimes.”
IE, “It is better to send some innocent people to jail than to let innocent people be the victims of crime.”
This could be expressed in terms of probabilities :
P(J) = probability of being in jail
P(V) = probability of being a victim of a crime
P(I) = probability of being an innocent person
P(J|I) = probability of being in jail, given that you are innocent
P(J|I) = P(I|J)P(J)/P(I)
U(J) = negative utility of being in jail
U(V) = negative utility of being the victim of a crime
Obviously, sentences and crimes will vary. Consider these vector sums. It is assumed that utilities are the same for innocents and criminals.
We can develop a ratio to examine the conditions in which your thesis is correct.
R(J,V,I) = U(V)P(V)/(U(J)P(J|I)). When this ratio > 1, the harms caused by crime are greater than those caused by jailing the innocent.
R(J,V,I) = U(V)/U(J) * P(V)/P(J|I)
R(J,V,I) = U(V)/U(J) * P(V)/(P(I|J)P(J)/P(I))
P(J) and P(V) are known at least for the recent past. In 2016 : 2.23 million prisoners per 320 million citizens, 716 violent crimes per 100,000 citizens. So conveniently enough, both are about 0.7%. P(V)/P(J) is close enough to 1 and can be canceled out.
R(J,V,I)|2016 = U(V)/U(J) * P(I)/P(I|J)
It is obvious that P(I) > P(I|J), but by how much? Even very liberal estimates put the number of innocent prisoners at 120,000, or, 5% of the 2.23 million prisoners. Even if every prisoner is imprisoned for a single unique crime, the percentage of people who are innocents is 1-(felons per capita), or, 93%. So, P(I)/P(I|J)|2016 = 0.93/0.5 = ~17
R(J,V,I)|2016 = 17U(V)/U(J)
Therefore : when your thesis is correct, R > 1. This necessitates that the harm caused by going to jail is not more than 1.2 orders of magnitude worse than the harm caused by being the victim of a crime. (Again : vector sums.)
While I’m not sure how we would begin to estimate these, it’s at least something we could discuss.
rashid.din:
Nitpick #1: Property crimes also matter, though they’re less damaging than violent crime in general. That should bump U(V) up a bit.
Nitpick #2: Pervasive crime has a lot of knock-on effects–people move away from their family and friends to avoid it, buy locks and guns and mean dogs, etc. My intuition is that this is pretty substantial, and should also raise U(V).
Nitpick #3: I think a large fraction of prisoners are also victims of violent crime inside prison, which ought to raise U(J).
Despite the nitpicks, this seems like the right way to at least do some back-of-the-envelope thinking about this stuff.
albatross11,
I agree! This could only be a starting point. It’s possible that both U(V) and U(J) exhibit non-linear growth in response to increasing prevalence of crime and incarceration, respectively. IE, pervasive incarceration could have other knock-on effects due to destabilization of the community.
That is probably a weakness of this very basic approach. It could equivocate between benign scenarios in which the harm of crime and the harm of jail time are both low, and harsh scenarios in which they are both high.
What’s your evidence for this? America has one of the highest incarceration rates in the world.
And it’s worse than that. If ability to make bail is actually predictive, removing it as a factor can increase both Type I (holding the innocent) and Type II (releasing the guilty) errors. (ignoring, for the moment, that the main purpose of bail is to get people to show for trial, with protecting the community being only secondary)
FWIW, I’ve been arrested for assault on a police officer, in a state rather far from my own. It was several months between arrest and dismissal. Had I not made bail, I would have lost my job and my home, so when I got out (if the case had still been dismissed) I’d have been a thousand miles from anything I knew with no place to live and very little money (having spent a good deal of it on lawyer’s fees, with no income coming in). Probably would have just walked out onto the highway and taken care of things that way; I wasn’t too far from that as it was.
This is also why I’m very skeptical of these supposedly fairer systems which don’t use cash bail. OK, plug the variables into the system… violent crime, check. Officer involved… ooh, double check. No ties to the area, check. Ties in foreign states… check. Damn, this guy’s a major flight risk, better hold him for trial.
For anyone who knows the criminal justice statistics: does being caught with a weapon while selling drugs count as a violent crime? I know this gets tacked on all the time, even when said gun is legally owned and held at the time of the arrest. I wonder if it would move the needle on the overall statistics if “carrying a gun while soliciting drugs” got moved from a violent crime to a drug crime?
you have to consider the reverse possibility, that the person gets caught with drugs while leaving the scene of some violence, and it was easier to prove the drugs than the violence.
No, violent crime is just murder, rape, robbery, and assault. Scott’s pie chart lists weapons as a “public order” offense. But whether a joint offense is categorized as public order or drugs, I don’t know.
What “moves the needle” on overall statistics like these is plea bargains. Before trial, criminals frequently are offered a deal which lets them plead down from a more serious charge to a lesser one. So the “carrying a gun” part of “carrying a gun while soliciting drugs” is probably often pleaded out of, and it’s likely that such people are already listed as drug criminals, since that’s the highest crime they were convicted of.
The picture that pie paints might seem grim; compared to real life, it’s probably rosy.
I’m curious if D.C.’s algorithm has been challenged under a disparate impact theory for recommending release more often for white people than black people – facially-similar algorithms have been challenged on such grounds in the past. The Electronic Privacy Information Center filed a pretty detailed FOIA request on these grounds against the DOJ last month, and features have been written about COMPAS and other criminal justice predictive tools in the Atlantic and ProPublica.
I’m not a programmer, and not smart enough to figure out how these things work, but my “we can never have nice things” pessimism is kicking in and telling me that even if this kind of bail reform did in fact reduce the amount of time people spend in jail, it would be inevitably attacked as racist.
Does D.C. count as a state for purposes of equal protection? They might be able to get away with things that real states can’t.
Yes.
Or rather, they count as the federal government, and the federal government counts as a state for purposes of the 14th Amendment through Reverse Incorporation
It will almost certainly be dishonestly attacked as racist. ProPublica’s own R-script in fact shows the algorithm is highly accurate and not statistically significantly racially biased. (This is in spite of the fact that they didn’t correct for multiple comparisons, and were basically begging for a false positive.)
https://www.chrisstucchio.com/blog/2016/propublica_is_lying.html
http://www.crj.org/page/-/publications/rejoinder7.11.pdf
https://github.com/propublica/compas-analysis
More evil, I realized, is how ProPublica got this result. They exploited an impossibility theorem. Theorem: you can’t have a classifier (except in the trivial case) which is both well calibrated and racially balanced.
https://arxiv.org/pdf/1609.05807v1.pdf
ProPublica checked the classifier for well calibratedness and racial balance, found that in fact one property (racial balance) wasn’t present, then declared it racist. That’s a nice way to be 100% certain you’ll get a great headline!
also known as: the really hot way to argue that racism is in fact correct, but progressives don’t notice this because they are so insulated from reality that they accidentally create pro-racist arguments
seriously, the thought experiment: if racism is an accurate way to judge reality, then it is Good. So either the algorithm is simply inaccurate (and that could be an angle, but doesn’t seem to be true) or the methods it uses (including, apparently, racism) are accurate
but progressives don’t notice this because they and their target audience A) automatically reject the idea of racism and B) consider it to be wrong in a terminal-value kind of way such that better results through racism are not an option for them
maybe we’d all be better off if everyone was like that but since they aren’t…hotness. And the best part is that you can’t explain any of this without looking super racist yourself, so I can only do it on the internet and probably only on this forum, on an anonymous account. God bless america
Although in many cases “racism” increases accuracy, this doesn’t appear to be one of those cases. The algorithm in question shows no sign of being biased by race or using race in any way.
didn’t say that it did
just said that progressive arguments imply that it does, but they don’t notice because they think everyone else thinks like them
There are distinctions between the following:
* The algorithm was programmed to use race as a determining factor (i.e. makes different decisions depending on race, all other factors being equal.)
* The algorithm (assuming it uses some variant of machine learning, I don’t know for certain that it does) evolved to use race as a determining factor
* The algorithm does not use race as a determining factor, but ends up recommending release more often for white people than black people because of statistical differences between the population of white suspects and black suspects.
I don’t think these situations should be conflated.
OK, now that we’ve identified black people as the problem, what’s the next step?
I don’t know why I waste y time responding to troll, but in the eventuality you’re just confused..
Currently if you’re not white your likelihood of being arrested and convicted for a bunch of crimes is higher. I say it’s because cops (and society as a whole) are racist, you say it’s because white people don’t commit crimes. Let’s not go into that, I don’t feel like banging my head into a wall.
But anyway the point is, because of that, any accurate algorithm will assigne more likelihood that a black person gets arrested and convicted for a crime than a white person. But that algorithm would not be less racist in doing so than the society it observes and tries to predict. And because the algorithm’s reasons for keeping someone in pre-trial detention aren’t human-readable (assuming it’s done with a neural network), they can’t be contested like they can in case it’s a judge’s motivated decision.
Depends how the algorithm works, certainly? An algorithm that correlates on, say, magazine subscriptions and thereby works out that subscribers to Jet were more likely to be arrested than subscribers to Martha Stewart Living could reasonably be called racist, assuming that the underlying reasons for disparate impact go through racial bias (a big assumption, but one I don’t feel like litigating right now).
But if you imagine an algorithm that aggregates convenience store security footage and thereby works out that, say, Scottish or Hmong people are more likely to knock over convenience stores, I’d have a hard time calling that racist, no matter what’s going on in the wider culture. None of the inputs could plausibly be affected by racism, unless the local Klan has a habit of dressing up in Hmong-face and knocking over convenience stores before their cross-burning parties.
And a whole range of options in between, of course. I don’t know enough about this algorithm to say which of these it’s more like, but there definitely isn’t enough information to call it racist on its face.
Should we care about input? I know that people have tried calling credit scores racist, and the general defense is that their output is unbiased. That is not interpreted as, “Different races have proportional representation at each level of creditworthiness.” It’s interpreted as, “For any given level of credit score, the actual default rates are equivalent regardless of race.”
The analogy would be to judge the algorithm not by whether it includes inputs which could be proxies to race (or even race itself, TBH), but whether each level of likelihood to appear given by the algorithm actually matches real data on appearances, regardless of race.
Depends what you care about. If you’re only looking to minimize flight risk, then you’re talking about a well-defined action by the defendant; the only thing that matters is how accurate the algorithm is. But if you also care about the probability of the defendant committing further crimes while out on bail, then re-arrests are an imperfect proxy. Subb4k thinks the algorithm might be picking up arrests for e.g. driving while black. I’m more skeptical, but it’s a reasonable thing to be concerned with, until we know the algorithm’s inputs wouldn’t lead it to factor those sorts of arrests in.
The Post article doesn’t explicitly say what the algorithm’s trying to do, but that cute little infographic sure implies that further crimes are a consideration.
are you speaking to me or him
GOD this comment system is hot
Your critique – namely that the algorithm is trying to predict arrests by racist cops – applies equally well to the human judge who is doing the same exact thing.
However, the human judge has additional biases – old fashioned human racism – that the algorithm lacks. In fact, the algorithm is explicitly race blind, unlike a human judge.
@Controls Freak, this is actually incorrect:
In reality (see table 7), race is predictive of default rates even after you know credit score. As it turns out, credit scores are biased in favor of blacks (strongly) and against Asians (weakly).
https://drive.google.com/file/d/0B-wQVEjH9yuhanpyQjUwQS1JOTQ/view
As a rule of thumb, you can assume a bottom-level comment is replying to the last bottom-level comment unless context makes it obvious that it isn’t. It’s not a great system, but I don’t think it’s designed to handle the volumes we see here. And at least it doesn’t do the
extremely
compressed
columns
of
text
that e.g. Tumblr themes with unlimited nesting do.
Subb4k:
I think that your argument is slightly wrong, but the problem is subtle, and maybe I’m missing something.
TL;DR version: If the justice system is very racist, then being sent to prison means something different for blacks and whites. White inmates will tend to be much more serious criminals than black inmates. And that means that when you want to predict whether someone will re-offend, having been in prison is a lot more powerful in helping you predict whether a white guy will reoffend than whether a black guy will reoffend.
Let’s imagine we live in a world where blacks and whites commit crimes at the same rate[1], but blacks are way more likely to get arrested. Given the huge skew in arrest rates, this almost mathematically *requires* a lot of the blacks who get arrested to be innocent[2].
Now, what information can we take from the fact that someone’s been in prison, in this world? Pretty obviously, the fact that a white guy’s been in prison means a lot more. You could write this as
P(criminal | prison, white) > P(criminal | prison, black)
That is, we want to know the probability you’re actually a criminal given that you’ve been sent to prison. But since a huge number of black prisoners are actually innocent (or maybe are small-time criminals who are no danger to anyone), but few white prisoners are innocent, we can be sure that this probability is higher for whites that for blacks. In this world, you should be much more worried about (say) hiring a white guy with a criminal record than a black guy with a criminal record.
What this means is that having been sent to prison is a much *weaker* signal about the likely future actions of blacks than whites.
Let’s make two more assumptions that seem pretty plausible:
First: Both blacks and whites are more likely to commit new crimes once out of prison, if they committed crimes before they got sent to prison. That is, the guy who actually robbed a liquor store and got sent to prison, when he gets out, is more likely to rob another liquor store than the guy who got falsely convicted and sent to prison for some liquor store robbery he didn’t do.
Second: For both blacks and whites, the probability of getting re-arrested is a lot higher if you’re committing crimes than if you’re not. So the guy who actually goes back out and robs another liquor store is more likely to get re-arrested than the guy who doesn’t, even if the cops go on arresting a lot of innocent blacks.
If those assumptions are more-or-less true, I think we should see a predictive algorithm put *less* weight on prior convictions of blacks than of whites, because
P(rearrest | innocent) < P(rearrest | criminal)
and
P(criminal | prison,black) < P(criminal | prison, white)
So if the huge difference in arrest rates or per capita prison sentences between blacks and whites is due to racism in the justice system, I think that should lead predictive algorithms to put less weight on previous prison time for blacks than for whites.
[1] I don't think the evidence supports this, but let's assume it for the sake of argument.
[2] More-or-less the same analysis works if you assume that most people in prison are criminals, but that the justice system sends blacks to prison for much less serious things. In that case, white prison inmates will generally be much more serious, scary criminals than black prison inmates.
it’s funny because I was actually talking to subb4k who was in all likelihood talking to me
i repeat: this comment system is HOT
I watched a documentary on police militarization a few months back, can’t recall the title. It mostly approached the issue from a fairly biased left-wing perspective (very sympathetic to Ferguson rioters, zero sympathy for cops ever).
At one point they randomly went off into a tangent about criminologists using predictive analytics to identify potential criminals. Interviewed some well known professor who basically said something like “We’re pretty good at this, the formulas exist and are very effective, the problem is that race is a major input” and eventually boiled it down to “Based on the data we have today, we can either have highly effective and accurate algorithms, or we can be color-blind and insist that race is never a factor in criminality, but we can’t do both”
I would like to know what information is fed into the algorithm before I decide whether it is dishonestly attacked or not.
This is great, stucchio. I noticed a lot of the same problems with that Propublica piece. I wrote about it here and here. I remember finding your piece and you made a lot of the same points.
I’ll have to read that arxiv paper on the impossibility theorem. I think I figured out this same point: an unbiased model will have more “false positives” for a high-risk group and more “false negatives” for a low-risk group. It’s not because the model is biased, it’s just a statistical fact. So you can tell a story where a perfectly unbiased model “goes too easy on (low risk demographic) and is way too hard on (high risk demographic).”
Propublica is pulling the same trick again recently. They are claiming that auto insurance territorial rating is overcharging predominantly minority zipcodes and undercharging predominantly white zipcodes. I won’t do them the favor of linking to the piece, but I’m sure you (stucchio) would get a kick out of it. I’m a property and casualty actuary, and at work a discussion group was discussing this article and tearing it apart. Several state departments of insurance (charged with regulating insurance and ensuring that rates aren’t “unfairly discriminatory”) repudiated the piece. I want to say, “Now you come up with some territorial rate differentials based on the data you’ve collected. Then hand them over to a third party and see if they can pull the same trick and prove that your proposed rating plan is ‘racially biased.'”
Archive.org is useful for this.