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?

Answers:

• 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.

Measuring the Body Count

The studies all suck.

After decades of studies demonstrating that the death penalty deters murders, that it increases murders, that it has no effect on the number of murders, we're pretty much left back where we started. The anecdotes are, for once, as meaningful as the data.

Here's what the anecdotes show:

• Some people say that they would have killed but didn't want to risk the death penalty.
• Some people say that they did kill in order to get the death penalty.
• Most people never thought about it. Either they acted out of sudden passion or, if they did think about it, figured they wouldn't get caught.

No shit. You don't have to be a scholar to figure that out. You just have to pay a bit of attention and then think about it for a few minutes.

Anyway, there's a new study about to be released in the American Journal of Criminology. Carefully done and peer reviewed, it indicates, according to a report in the Houston Chronicle, that executions in Texas, where they kill enough people to have a noticeable effect, have some slight deterrent effect. When you run the numbers, though, that slight effect adds up to maybe 10 or 12 a year. That's a fair number of dead bodies.

There are a few things to say about this.

First, there's no particular reason to believe it. I'm sure the authors were painstaking. The authors of bunches of studies have been painstaking. They generally stand behind their conclusions. But their conclusions disagree so much that about all you can do is throw your hands up in the air in frustration.

Besides this study has a couple of other curious points. I'm particularly taken by this one: Executions deter killings even if they get no publicity. That is, murders will go down as a result of an execution even if nobody knows about the execution. Maybe it's something in the air. Or maybe it's evidence that the study is BS. My money's on the BS theory.

Second, while 10 or 12 people a year is a lot, we'd save a whole lot more people if we got a few more drunk drivers off the road. Or if we hired a few more cops. Or if we actually made some efforts to rehabilitate. Or if we offered people an alternative to just hanging out. (I've said before that Bill Clinton's much maligned idea of midnight basketball was actually one of the most sensible proposals that ever got shot down.)

This part of the math is clear. Whatever you think about whether it's a good idea, executions fail the cost-benefit analsyis test. Scott Henson explains:

Perhaps there is some vanishingly small, short-term deterrent effect to the death penalty. Like the existence of a God that created man in His own image, I doubt it but won't rule it out. But in its current form, the death penalty is a political boondoggle and distraction involving a miniscule number of cases - a costly sideshow carnival act of the first order that distracts from more important discussions. Any legitimate cost-benefit analysis would find death-penalty deterrence doesn't measure up compared to underfunded but less-expensive programs that would save more lives and do more to reduce crime and deaths.

I'm all for the academic enterprise. I believe in it deeply. But I've yet to see a study of deterrence that made any sense. There may be plausible arguments in favor of the death penalty. (I don't buy into them, but they may exist.) That it deters enough crime to be worth keeping isn't one of them.

Death and the Dollar Sign - Part II (The Pinto)

I suspect that like so many of the hotly contested social issues (abortion, school prayer, same sex marriage, etc.) the death penalty evokes strong feelings among a tiny portion of the population.

A few people are enthusiastic supporters, convinced that we don't kill nearly enough people. Among them are some who feel that government killing is so important that it's the sole basis on which they vote. A few others are passionate abolitionists, deeply committed to the position that the government ought never kill. Among them, too, are a smattering of single-issue voters. Most people fall somewhere in the fuzzy middle. They don't think about the death penalty much. If pressed, they'd say we should probably have it on the books. But they don't much care if it never gets used. It's just not on their radar.

Mark Draughn, one of WindyPundit, describes himself as comfortably within that broad majority. But the recent DPIC study of costs may be changing his mind. His argument is interesting because it is both compelling and deeply disturbing.

Let's start with compelling. He begins with the numbers.

[W]hen you ignore the hyperbole and fake(ish) survey, the report makes an interesting economic case, starting with the estimated cost of a death sentence:

The high costs to the state per execution reflect the following reality: For a single death penalty trial, the state may pay $1 million more than for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further down the road, only one in ten of the death sentences handed down may result in an execution. Hence, the cost to the state to reach that one execution is $30 million.

That's a lot to pay to execute somebody, and it may be worse than that:

In 2008, the California Commission on the Fair Administration of Justice released an exhaustive report on the state's capital punishment system... The report found that the state was spending $137 million per year on the death penalty... Since the number of executions in California has averaged less than one every two years since the death penalty was reinstated in 1977, the cost for each execution is over $250 million.

Then he asks the question the numbers compel:

So is an execution worth $30 million? Or $250 million?

And then he answers it by measuring the cash value of saved lives (he assumes some net deterrent effect) against the cost. I won't repeat the calculations here. They're interesting and worth some thought. I encourage you to go and read them yourself. But here's the bottom line:

Understand that I'm not saying we shouldn't spend tens or hundreds of millions of dollars to save lives. What I'm saying is that resources are scarce (economic crisis or not), so if we decide to spend money saving lives, we should be careful to spend it in a way that will save the most lives possible, which probably isn't on executions.

It's an actuary's test. It's the calculation of the guys who signed off on the memo suggesting that the benefits in lives saved were outweighed by the costs of installing an $11 part in a Ford Pinto to prevent it exploding into flames on a rear impact. It's the sort of test that economic analysis says we do and maybe should do. And as he works it out, it's surely right.

But it's also deeply disturbing - and for the same reason the Pinto memo was disturbing. Nobody except accountants and actuaries (and corporate executives trying to avoid spending a few bucks) is particularly happy about doing cost/benefit analyses of human life. Mark knows that:

It's easy to say that human life is priceless, but as economists have shown, that's not how we behave.

And that's fair enough, but it doesn't make the point any less disturbing.

The argument (I'm not saying it's right; I'm just saying it's the argument) for the death penalty as deterrent, after all, isn't that there aren't any other things we can do that will save more lives. It's that there are lives we're throwing away because we don't kill more. And even if there's no net deterrent effect (say, there are as many additional killings from the brutalization effect as there are saved lives from the deterrent effect) from the death penalty, that's probably true.

But you know, if it's wrong to kill people, it's wrong to do it. And if it's the right thing to do, then damn the cost. Of course, that's the view of one of those pure abolitionists who simply can't countenance any state killing. Ever. I don't like the cost/benefit analysis because it's ugly and offensive.

But if it convinces a few people, I can live with that. Happily.

Saluting Mwai Kibaki

I know what happens when you look at international law (those who don't like your position scream invectives). But I'm not doing that. Just reporting the news, with deep thanks to Doug Berman for posting it first. AP reports that President Mwai Kibaki of Kenya has just commuted the sentences of the more than 4,000 people on death row in his country. And he's ordered a study on whether the death penalty has any impact of fighting crime.

Would that some leader in this country had the same political courage. Perhaps someone of, say, Kenyan heritage?

Dream on, Gamso.

FEAR AND DETERRENCE

Over at Sentencing Law and Policy, Doug Berman directs attention to this column from the NY Times and wonders what his readers think about the 150 year sentence handed down to Bernie Madoff.

In response, I posted this comment.

I suspect, based on very little empirical evidence (though there might be studies), that significant prison sentences can serve as a deterrent to white collar crime where they really don't to street crime (about which I have somewhat more empirical evidence). But sentences that cannot be served seem silly rather than forceful. A formal sentence of life might be more meaningful than any absurd number of years could be. If it required rewriting the statutes, though, I'd be wary, since once Congress gets at that, they're liable to wreak all sorts of havoc. And I don't have much faith in the Sentencing Commission, either.

I'm not changing my mind about that, but I want to say a bit more.

I addressed an aspect of this a couple of weeks ago (here), after his lawyers filed their sentencing memorandum suggesting that he should get 12 years. Then I was looking at victimology and the personalization of criminal law, the idea that the prosecutor and the judge are somehow agents for the victims of crime, that their job is to make victims feel better. But I want to focus now on the effects of sentences.

Let me be clear about this. I'm offering a view from the trenches and a lot of gut feeling rather than any sort of academic analysis. The studies I've read about sentences (not all that many, frankly) have mainly been about whether the death penalty or executions (they're not the same thing) serve as a deterrent.

While some of the studies are suggestive, I think a fair reading is that none of them really prove much of anything. There studies showing that the death penalty and executions deter homicides. There are studies showing that executions actually increase homicides. I think they're a wash. The academic analysis just can't be done properly. The conclusion, then, is that there's no good evidence the death penalty deters homicides, but also no good evidence it doesn't.

So we leave academics and enter the real world. There's no question that some people have killed because of the death penalty. They've killed witnesses in the hope that they wouldn't be convicted and face death. They've killed as part of a plan to be sentenced to death and thereby get, in effect, an assisted suicide. By the same token, it strikes me as self-evident that at least a few people have refrained from killing in order to avoid the risk of a death sentence. On balance, again, it's a wash.

But why? Why shouldn't the ultimate penalty reduce killing? For that matter, why do horribly long sentences not seem to reduce drug trafficking or sexual abuse of kids - or homicides?

CAVEAT: The rest of this is broad generalizations. Lots of street criminals aren't like what I'm about to write. Plenty of white collar criminals aren't like this, either. Don't take any of it personally.

Because people don't expect to get caught. Because people don't think it through and do the cost-benefit analysis that the economists think people do all the time. Because so much street crime is really acting out of passion or fear or bravado rather than calculation. And because the people who do the actual calculating tend to imagine that their calculations will ensure they'll never be convicted.

Moreover, my clients are my clients, for the most part, because they made terrible choices. If they were good at making choices, they wouldn't end up being my clients. Why would we think that harsher penalties will make more thoughtful criminals?

And there's this. The repeat offenders sort of understand that prison is part of the process and just the price of doing business. Hey, if half your family is in custody and the other half has been or likely will be, it may not seem all that daunting. But that's street crime.

Bernie Madoff isn't your basic street criminal. The folks who embezzle and commit tax fraud and engage in multi-million dollar securities shenanigans - or multi-billion dollar ones - the guys at Enron and Adelphia, the Bernie Madoffs of the world, they're different.

They don't expect to get caught, either, of course. And they're quite sure that if they do get caught, they'll get at most a slap on the wrist. (And they don't think much about any of this, anyhow.)

But for them, prison - at least serious prison surrounded by what they'd think of as "real criminals," is something else. You know about real criminals. They're those street criminals I was talking about. The folks Arlo Guthrie was put next to at his draft physical (in his song Alice's Restaurant) when he was asked if he'd ever been arrested, people who

may not be moral enough to join the army aftercommitting your special crime, and there was all kinds of mean nasty uglylooking people on the bench there. Mother rapers. Father stabbers. Fatherrapers! Father rapers sitting right there on the bench next to me! And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench next to me.

The Bernie Madoffs of the world are, mostly, terrified of those guys. They may not exist, but the fear is real.

You give Bernie a life sentence. You hand out a few others. You make clear that life means life and that it means hard time. Maybe, just maybe, you can deter some of those guys.

Now, let's think for a few minutes. Person on death row killed a couple of people without much remorse in the midst, say, of a spree of robberies. Horrible. Deserves condemnation. Bernie Madoff destroyed the lives and hopes of thousands, inflicted some sort of real harm to millions. He did it with a pen and a smile and a string of accountants. Guy on death row did it with a gun.

Who did more harm? Who's more callous? Who is deserving of more punishment?

We don't kill the Bernie Madoffs, and we shouldn't, not any more than we should kill the vicious street punk or the guy who got in over his head and got scared and . . . . Heck, you know the story.

But 150 years? We know that's a sham. It's not a real sentence. He can't serve it and it doesn't really make any broader point. Now, a life sentence, that's something else: I sentence you to die in prison - however long it takes.

That's frightening. Might just deter a few of the white collar criminals.