Saturday, March 12, 2011

He Really Doesn't Understand

Another politician with his hand in the cookie jar.  Or so it is alleged.
Are we shocked?  Are we, even the least little bit, surprised?
It depends, I guess, on who "we" are.
If "we" are me and most of the people I hang out with (criminal defense lawyers, of course, but relatively normal people, too), then the answer is that we're not.  Not a bit.  There are, no doubt, honest and honorable men and women who hold elected office.  People of integrity and decency who do not find in public office ways to lard their own coffers (savor, if you will, the taste of the word "lard" in that overused phrase) or cheat on their spouses or otherwise treat the office as a bit of personal aggrandizement.  But there's no shortage of the others.  It goes with the territory.  The old joke about lawyers (How do you know when one is lying?  His lips are moving) is as often targeted at those we elect to office.
If, on the other hand, "we" means the righteous prigs who live in marbled halls with fancy seals on the walls and have no idea how actual human beings think and behave, perhaps there's plenty of surprise.
Carl Kruger is a member of the New York State Senate from Brooklyn.  He's been in office for some 16 years.  Yesterday, he turned himself into the feds.
From the New York Times.
On Thursday, federal prosecutors unveiled a 53-page criminal complaint against Mr. Kruger, 61, that unlocked many of the mysteries of his life — but deepened others. It portrayed a man who had amassed at least $1 million in bribes in return for political favors: helping hospitals seeking to merge, obtaining state money for real-estate developers, expanding the business hours of liquor stores.
And it revealed, prosecutors say, that the seemingly measured senator was using the bribes to bankroll a lavish lifestyle, financing a four-door Bentley Arnage and a $2 million waterfront home originally built for a boss of the Luchese crime family.
Mr. Kruger and seven other defendants — including Assemblyman William F. Boyland Jr., a fellow Brooklyn Democrat, and a prominent lobbyist, Richard Lipsky — were charged by federal prosecutors in Manhattan with what United States Attorney Preet Bharara called “a broad-based bribery racket.”
I don't know any of these folks.  I haven't a clue whether Kruger or any of the others ever came within a hair's breadth of violating a public, or even a private, trust.  This post isn't about them.  It's not about the public trust (though it does sort of seem that way so far when I review it from the top).
It is, instead, about what may be the greatest myth of criminal law.
Go back to the question I began with, whether anyone is surprised.  Then listen to Preet Bharara explaining why he is.
Mr. Bharara expressed exasperation over the unrelenting corruption in Albany, saying lawmakers did not appear to learn.
“Every single time we arrest a state senator or assemblyman, it should be a jarring wake-up call,” Mr. Bharara said. “Instead, it seems that no matter how many times the alarm goes off, Albany just hits the snooze button.” 
You'd think they'd get it.  You'd think they'd be deterred.  Or, at least, he'd think so.  And he just can't understand why they're not.
Don't they understand deterrence?  Don't they get it that they'll get caught?  Don't they understand the humiliation they'll suffer? The punishment?
  • No.
  • No.
  • No.
  • No.
Of course they don't.
On the one hand, that's just the obvious fact that the people who commit crimes (and of course Bharara assumes everyone charged is actually guilty) were not deterred.  I mean, it's always possible to imagine some state senator who gets deterred.
Damn.  I'd sure like to get rich on graft.  I mean, that's why I ran for office and won this job.  But now that I'm here and see that you can get caught and exposed, I guess I'll do the people's business instead.
We can imagine all kinds of things.  But the reality of deterrence is that it assumes that before committing crimes (or engaging in any sort of misconduct), the potential miscreant conducts a cost-benefit analysis and decides otherwise.
I'd be a fool to say it absolutely never happens.  But I'd be a naive twit to think it happens with any sort of frequency.
See, most people aren't inclined to serious misbehavior.  And those who are - whether state senators taking graft, governors cheating on their spouses, cashiers shortchanging customers (or the boss) and pocketing the difference, or armed robbers, rapists, and murderers - they don't get deterred because they don't believe they'll get caught or are acting on impulse rather than contemplating consequences and doing cost-benefit analyses.
And the getting caught thing.
That only works when there's a cop on the corner watching.
Drive the interstate sometime.  When people see a cop, they slow down to somewhere near, maybe even below, the speed limit.  They do that whether the cop is working the radar gun or actually giving a ticket.  The moment the cop is out of sight, traffic picks up speed again.  Drivers don't slow down because they're reminded they could get caught.  They slow down while they think being caught is a real risk, i.e., while they see the cop.
Our legislators (even while they're taking graft) don't understand that lesson.  So they keep cranking out new crimes and increasing punishments.  
Now the bad guys will be put off.
Except, it doesn't work that way.
Preet Bharara knows it doesn't work.  He just doesn't understand why not.
Really, it's not that hard to figure out.
You just have to talk to psychologists rather than economists.


  1. I would be a bit circumspect about taking Preet at his word on this one. Notice the wiggle in the allegations, and veiled allusions to being near other evil folks, as if staying at a home originally built for a mob boss makes one a mobster too?

    I would also be a bit disturbed by the nature of Preet's comments to the media, given his ethical responsibilities. A lot of smoke but not much fire.

  2. Of course, his comment was really just the excuse for my own ramblings about deterrence.

  3. The failure of deterrence is that no one believes it will be there turn next. It's the same problem as feeling concern for the illegal search of some street kid. Nothing counts until it touches them.

    In Kruger's case, the concept of politics begs for this give and take, as it requires a never ending stream of favors and payments to fund the wheels of campaigns. One can make it sound dirty or one can reoognize it as the nature of American popular politics. Pick yer poison.

  4. See, most people aren't inclined to serious misbehavior.

    I'm not certain that I agree with you here. This depends on your own definitions of serious and misbehavior. If by misbehavior you mean an action that every single law-abiding citizen can point to and state that this is a crime, then I would tend to agree. On the other end of the spectrum we have yards of criminal law, most of which should be reduced to ashes and scattered in The Anointed One's private swimming pool. If misbehavior as defined by Jeff Gamso, esq. refers to The Anointed One's source of annoyance, then I'd have to disagree. In fact, I'd go so far as to say that most people don't give a damn, which should be reflected in the criminal code.

    Any halfway competent headshrinker can tell you more about behavior modification than you'll care to know. Suffice to say that it's the immediacy and surety of the punishment that modifies behavior, not the severity.