Monday, June 8, 2020

Policing Practices, Law and Economics, And The Values Of Justice And Efficiency

In the full story of how things in American policing became so completely fucked up, I would like to read an analysis that explores connections among 1) theoretical issues in the framework known as "law and economics," 2) local legal structures that appear to use policing to generate revenue, 3) policing practices, and 4) racism.

For those not up on these things, law and economics is a legal framework that understands laws through the lens of efficiency: good laws bring about good consequences. For example, laws related to civil wrongs could be crafted with an eye toward what would work most productively moving forward, rather than thinking about background rights and values like fairness. This framework emerged around the mid-twentieth century out of work by neo-classical economists (many at the University of Chicago) and legal theorists like the influential Richard Posner, and has a wide range of contemporary applications.

"Positive law and economics" is about explaining and predicting laws, with the hypothesis that, other things being equal, laws that produce efficiency will be adopted. "Normative law and economics" says that such laws not only would be adopted but should be adopted -- so that existing laws can be improved by being made more efficient.

What "efficiency" means here can be complex; it can be the maximizing efficiency of utilitarianism, in which the thing to do is the thing that brings about the best consequences overall, but more typically it is "Pareto efficiency" that is used -- a set up is Pareto efficient when there is no way to one person better off without making another person worse off.  (I wrote about various forms of efficiency here and here.)    

You might be thinking that it's odd to have a legal framework based on efficient future consequences rather than justice and fairness. I do too, though we won't have time to get into that here. If you're interested I recommend this excellent book review.

One can apply the theoretical approach of law and economics in a wide range of ways: even when it comes to something like "efficiency" and the "good" in "good consequences," for instance, you might be trying to promote preference-satisfaction or well-being or you might be trying to create, you know, actual money.

This last bit brings us to 2): legal structures that appear to use policing to generate revenue. This book review by the always brilliant Moe Tkacik explains the idea in vivid detail: the sanctions for crimes are set up so the accused have to pay; the state then raises money while leaders claim not to raise taxes. Judges become like tax-collectors whose subjects are in no position to complain.  

The theoretical connections can be a bit complex, but as I understand it, the reasoning goes  something like: if the fine for driving without a license is X dollars and you drive without a license, you must have in some sense preferred to drive over losing X dollars; the state can set the fine in such a way that it reaps more from the fine than it lost from the crime being committed. In this way the crime is disincentivized but the interaction is kind of a win-win, and is efficient all around.

And thus to 3: I remember after Michael Brown was killed in Ferguson, I kept seeing references to the ways that the over-policing of the citizens there could be traced partly to policing as a way to raise revenue. This post gives a great overview and explains: "In its 2015 report on policing in Ferguson following the killing of Michael Brown, the Civil Rights Division of the United States Justice Department concluded: “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.”

And 4) now you add both individual and structural racism into the mix. Because of structural racism, Black people are much more likely to be poor and powerless than white people. The poorer and less powerful people are then over-policed and abused into becoming ATMs for the government's revenue needs. Among other things, modern algorithms for crime prediction and sentencing actually factor in past arrests so that the original injustice is perpetuated further. And, of course, individual racist police then have a framework for their abusive actions.

I don't know how all of these interrelate -- theoretical law and economics is complicated and I don't know how its theoretical development has impacted practices of policing-as-revenue. But I hope to have shown here why I see them as conceptually interconnected and mutually supporting.

Anyway, if you want to read something else on racialized impacts of framing laws in terms of future consequences instead of past actions, I cannot recommend enough this searing personal essay by classicist and political scientist Danielle Allen about her cousin Michael, who enters the criminal justice system as a result of minor crimes at age 15, gets derailed in life, and ends up dead -- murdered at a young age.  

From a theoretical point of view, proponents of efficiency-based reasoning sometimes cast "justice" as a kind of artificial virtue, something to be explained away, something that reflects prejudices of an evolutionary past, where punishments were needed to keep people in line and bring about good consequences. The implication is that once we see this, we can go right to the consequences and skip the justice part altogether. I don't know all the ways that 1)-4) interrelate, but I'm sure the part about skipping justice altogether must be wrong.

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