Ladies and gentlemen, the President of the United States.
If you, like me, have a twisted sense of humor and limited compassion, it’s rather funny to see all the Republican politicians and conservative pundits decompensating in the face of the rather predictable outcome of King v. Burwell.
Not that it’s unreasonable for them to be disappointed that the court didn’t once again make up legal principles out of whole cloth in order to serve right-wing prejudices and policy preferences. But the reaction isn’t the “Well, it was worth a try” that might be expected when a long-shot didn’t come in. It’s sheer uncomprehending grief and outrage. Instead of saying “Too bad, I guess John Roberts decided he couldn’t stretch reality far enough to let us win this one,” the right wing is saying “John Roberts betrayed us! He was never really a conservative!”
More than anything else, it reminds me of Karl Rove on Election Night 2012, insisting that Barack Obama hadn’t really have carried Ohio (which, when all the votes were in, he carried by a reasonably comfortable 3 percentage points) and thus the Presidency.
In 2012, then The Republicans had spent so much time “unskewing” the polls that they’d really convinced themselves that Romney was going to win. Recall that Romney was so confident he hadn’t even drafted a concession speech. This time, they’d convinced themselves that the fundamentally frivolous challenge in King - asserting that the Congress had deliberately set up Obamacare to fail – was obviously valid. (As Roberts points out in a footnote, Scalia’s dissent in NFIB, the previous Obamacare case, specifically asserted that the subsidies formed an essential part of the law.)
So when John Roberts, in effect, called “bullsh*t,” Fox News viewers, including the pols and the professional chatterers, were utterly blindsided, and reacted by insisting that the problem was with Roberts rather than with the plaintiffs’ case.
In a purely partisan sense, it’s an advantage for Democrats to be running against a fundamentally unhinged party. But from a patriotic viewpoint, the realization that the country no longer has two political parties that can be trusted with the reins of government is pretty damned scary. It’s possible that a convincing Clinton win and a Democratic recapture of the Senate in 2016 will shock the GOP back to reality. But I wouldn’t bet on it. Feeding right-wing fury is a profitable venture financially, and it works well enough electorally in off-years to keep the hustle going. My guess is that it will take a Clinton re-election landslide in 2020 to do the job.
Three things to like about Ross Douthat’s Sunday column on incarceration:
1. He starts in the right place: the sheer scale and horror of mass incarceration, especially as practiced in this country. (Douthat is right: by any reasonable definition, SuperMax is torture.)
2. He acknowledges the key fact: there aren’t enough harmless prisoners that releasing them would solve the problem. If we want to get to civilized levels of incarceration we need to let out some seriously guilty and possibly dangerous people. Just to get back to the U.S. historical level – already about 50% above European rates – we would have to let out four out of five current inmates. That means freeing large numbers of armed robbers, rapists, and murderers.
3. And he asks the right question: how to do that without ending our twenty-year winning streak in crime reduction.
Fortunately, I think there’s an answer to that question: learning to manage offenders without putting them behind bars. The key to that – and, it turns out, to de-brutalizing the institutions themselves – is a system of rules and sanctions based on swiftness, certainty, and fairness.
The evidence for success in swift-certain-fair community corrections is pouring in. The next step is to extend it to the currently imprisoned population through some form of graduated re-entry. Since that’s a new idea, we can’t be sure in advance how well it would work, or which version of it would work best in any given population. But once you ask the right question – how to reduce incarceration while improving public safety – you’re well on the road to finding the right answer.
Footnote Douthat makes the implicit assumption that keeping someone who might commit crime behind bars naturally tends to reduce crime. That would be true if incarceration didn’t have criminogenic side-effects, both at the individual-offender level and the community level. But in fact it does, and as the scale of incarceration grows the crime-control benefits shrink (since you’re locking up less and less dangerous prople) while the costs grow. Useem and Piehl estimate that in the median state the marginal prisoner somewhat increases the crime rate. If this is right, then the first slice of de-carceration won’t come at any cost in the form of increased crime even if it’s not coupled with improved community supervision. But that surely wouldn’t be true of making the reductions we actually need to make in the prison headcount.
At today’s meeting of the National Research Council’s Committee on Law and Justice, I learned that the House of Representatives has voted to “zero out” core funding for the National Institute of Justice and the Bureau of Justice Statistics. That wouldn’t abolish those agencies; instead, the Office of Justice Programs would be invited to take money out of program funds (mostly grants to states and localities) to fund the research mission. (See p. 43 of the committee report.)
This is of a piece with the earlier House vote to slash the National Science Foundation’s social-science budget.
Of course I felt like a fool for not knowing about the NIJ/BJS budget disaster. But a fairly thorough Google search turns up no media mention of that vote. I suppose by now “Republicans vote for more ignorance” is a dog-bites-man story, not worth reporting. But when this sort of maneuver goes on in the dark, it’s harder to mobilize any sort of protest.
The actual work of government depends crucially on career civil servants. There’s no public task more vital than recruiting, retaining, and managing a corps of smart, honest, dedicated people who believe in the jobs they’re doing and have the respect of those around them.
And there’s no one less likely to do that task well than Scott Walker. Don Kettl explains why. And Ed Kilgore points out how Walker’s union-busting strategy is a big winner with the increasingly Koch-eyed GOP activist-and-donor class.
Like much contemporary Republican ideology, there’s nothing about bashing public employees that fits any sane definition of the word “conservative.”
James Kwak demonstrates that Greg Mankiw is talking through his hat on the trade issue, quoting Mankiw’s own textbook:
Trade can make everyone better off. … [T]he gains of the winners exceed the losses of the losers, so the winners could compensate the losers and still be better off. … But will trade make everyone better off? Probably not. In practice, compensation for the losers from international trade is rare.
We can now see why the debate over trade policy is often contentious. Whenever a policy creates winners and losers, the stage is set for a political battle.
To put it formally:
Reducing barriers to trade creates potential Pareto improvements: making them actual Pareto improvements requires redistribution. But of course it’s precisely the people loudest in their support of “free trade” who are most vehement in their opposition to income redistribution, insisting (mostly falsely) that in a globalized economy capital and the people who own it are necessarily too footloose to be adequately taxed.
There’s no reason in principle that the same web of treaties that reduces tariffs couldn’t also restrain tax-dodging and the associated money-laundering, but that’s not what Greg Mankiw, or the people who support his work, are interested in, so it mostly doesn’t happen. If the corporate-lobby “free traders” were prepared to talk seriously about shared prosperity, most of the opponents of TPP would be more than willing to meet them halfway.
To be clear, I don’t have a clue about whether TPP is, on balance, good policy. If it helps strengthen a Western Pacific coalition against Chinese attempts at regional hegemony, maybe it’s worth doing for that reason alone. And on an international scale the distributional consequences are way positive; the Vietnamese workers who benefit from better access to U.S. markets for their products are pretty damned poor, and – despite how badly they’re treated in the exporting industries – even very bad factory work kicks the crap out of tending a rice paddy.
But the Theory of Comparative Advantage doesn’t answer the question, and pretending that it does is an insult to everyone’s intelligence. In the absence of a redistributive mechanism, the claim that “economics” proves that “free trade is good for everyone” is no better than a verbal trick.
Footnote All that is aside from the fact that deals like the TPP embody not very much actual reduction in trade barriers (which are pretty low by now to start with) and lots of less desirable (except to special interests) provisions such as imposing the absurdly inefficient and unjust “intellectual property” regime the patent- and copyright-holders have bought from the U.S. government on the rest of the world, and subordinating local health and safety rules to the whims of unelected international tribunals dominated by servants of big business. (For example, the international tobacco companies are challenging Australia’s plain-pack rule for cigarettes as a WTO violation.) In principle, trade deals could also require respect for labor rights and environmental interests, but those provisions are mostly for show.
Megan McArdle defends the Graduated Re-Entry proposal against critics who would prefer to replace prison with nothing, or perhaps with a menu of social services and income supports designed to help offenders straighten out their lives. She does so on “second-best” grounds: even if you were a prison abolitionist in principle, you ought to prefer Graduated Re-Entry to the status quo, and full-on prison abolitionism isn’t politically feasible and probably never will be. In particular, the rhetorical strategy of shifting the blame for crime from criminals to voters (for supporting policies that generate concentrated multi-generational poverty) strikes McArdle as a sure loser.
On the one hand, I agree. Even from the prison-abolitionist stance, Graduated Re-Entry might look like a reasonable second-best option: the best feasible result even if you don’t think its the best imaginable result. And surely the attempted moral re-framing is unlikely to command majority support outside the cocoon of activists and their academic sympathizers. If some of the abolitionists want to support Graduated Re-Entry faut de mieux, I’m only too happy to have their backing.
And, indeed, a substantial fraction of prison inmates – less than half, I think, but still a very large number of people – and even larger shares of jail inmates and probationers, could benefit from a good leaving-alone on the part of the criminal justice system. As Marty Horn has remarked, “Go, and sin no more” is a sentence of great antiquity with a highly respectable provenance, and we should use it more than we now do, assuming we can manage to reconcile its use with the need to maintain general deterrence and with the just claim of the victim not to have his victimization treated as a triviality beneath official notice.
But that leaves the question of how to handle the hundreds of thousands of people who are now in prison because they did something really, really bad, and who are as likely as not to do the same sort of thing in the future unless something gets in the way. It is not merely “politics” in the pejorative sense of that term that ought to make us care about the victims: both the past victims, who want to know that the crimes committed against them were not merely shrugged off as “boys will be boys,” and the potential future victims who will suffer if nothing arises to convert current offenders into ex-offenders.
Nor is it obvious that immediate and unconditional liberty would serve the long-term interest of today’s prison inmates, though it would surely accord with their current preferences. A substantial number of those inmates have serious drug problems (especially if we count alcohol as a drug, as we surely should). Evidence from swift-certain-fair community corrections programs shows that testing and the threat of swift-certain-fair sanctions way outperforms any drug treatment program – whether the treatment is voluntary or mandated – in terms of actually getting its subjects stably abstinent. (We’re talking about the difference between 20% success and 80% success.) The freedom to pursue the life of a heroin-addicted burglar is not, in fact, an especially valuable freedom to have; as Ron Corbett remarks, in thirty-plus years as a probation officer and probation manager, he never met a happy probationer.
It would suit my prejudices to find that supportive services turned out always to be the best solution to the problem of people leading disordered lives. But, as far as I can tell, that simply is not the case. What Larry Mead calls “supervisory approaches” also have their role. I hate it when Larry is right, since I have a strong distaste for pushing people around. But that distaste isn’t evidence of anything but my upbringing; it doesn’t provide information about the actual likely results of choosing one course of action rather than another. For that sort of information we have to turn to theoretically-driven empirical investigation, and it seems to me those results are mostly in. I’d still prefer, on principle, services to supervision, and by the same token voluntary services to mandated services, where the observable outcomes are comparable. But where supervision clearly does better, I – along with my fellow liberals – need to swallow hard and just try to make the supervision as helpful, and as consistent with the self-respect of the people subjected to it, as possible.
Footnote Swift-certain-fair community corrections tends to be supervision-only. That’s not true of Graduated Re-Entry, which proposes to use the money not being spent on a cell on a mix of heavy-duty supervision and an expensive package of supported housing and transitional (we hope) supported work.
Sam Hampsher asks an excellent question: Do we want to send police into schools to set students up for marijuana stings? It’s not easy to imagine what could justify that practice, other than the relentless pressure to “make cases.”
This country has about five times as many people in prison and jail (per capita) as it ever had before 1975, and about seven times as many as other economically and socially advanced countries. Unfortunately, and contrary to current myth, most of those people aren’t innocent, and aren’t harmless “NonNonNons.” More than half are currently serving time for a violent offense, and many of the rest have prior convictions involving violence. So we can’t escape the mass incarceration trap by releasing “low-risk” offenders; to get back to a civilized rate of imprisonment, we need to get some seriously guilty people out of cellblocks. The current system of taking someone who is locked up (and fed, clothed, and housed at public expense) one day and turning him loose the next day under sporadic supervision, with $40 and our very best wishes for success in his future endeavors, is obviously idiotic, and the results are predictably rotten.
Angela Hawken, Ross Halperin, and I have proposed an alternative system of early release under tight supervision and with supported transitional work and housing, plus strong incentives – in the form of gradually increasing liberty – to find and hold non-supported employment. Since nothing precisely like this has been tried before – that’s true of any genuinely original idea – there’s no way to predict precisely what the results would be, but there’s enough data on specific elements of the plan, including the swift-certain-fair approach to sanctioning misconduct and rewarding compliance and achievement, to give us reasonable confidence that some version of “graduated re-entry” would outperform the current system.
Leon Neyfakh at Slate runs the idea past a distinguished criminologist and a leading advocate of decarceration. Their responses illustrate that the use of Albert Hirschman’s “rhetoric of reaction” is not restricted to one side of the political spectrum. Every new idea, Hirschman says, is attacked on three bases: futility, perversity, , and jeopardy. That is, the idea can’t possibly work, will actually have the opposite of its intended effect, and will create appalling risks.
Of course, all of those things might be true about any given proposal – there are a lot more bad new ideas than there are good ones – but they can also serve as mere reflex reactions, designed to cut off debate rather than foster it.
The standard “perversity” argument against more effective community corrections systems is that they will “widen the net”: instead of substituting for incarceration, they will be added on top of incarceration. They are said to be futile on the grounds that punishment has been demonstrated not to work. And the jeopardy is that, since attempts at control are doomed to fail, closer monitoring and more consistent sanctioning will only further entrap offenders in the web of the carceral state.
In fact, properly implemented swift-certain-fair approaches demonstrably succeed in changing behavior, and demonstrably reduce recidivism and days-behind-bars. But the rhetoric of reaction is designed to be fact-proof.
Otherwise it would be hard to figure out how anyone could imagine that a program that starts with people currently in prison and not scheduled to get out would possibly “widen the net.” Obviously, a graduated re-entry program is more restrictive than unconditional release: that’s the whole point. And insofar as we can identify current prisoner who would be good candidates for unconditional release, using graduated re-entry on that population instead of letting them out unconditionally would involve unnecessary expense, unnecessary intrusion, and, yes, the risk that people who would have made it on their own will instead get tripped up in a cycle of technical violation and re-incarceration. But surely there must be some population not safe to simply turn loose but safe enough to turn loose under the right sort of close monitoring. Maybe that population is small, in which case the benefits of graduated re-entry will be limited, though it still might turn out to be true that a phased re-entry will work better than a sudden re-entry.
Here’s my challenge to those who oppose graduated re-entry on the grounds that it’s too tough on offenders: Imagine that you were in prison, or that your son or brother was in prison. Would you prefer having the next year of that sentence be served in the new “super-min” program, or on a cellblock? Once you ask the question that way, the answer should be fairly obvious.
Josh Barro’s report in the New York Times starts with the debate about the Washington D.C. grow-and-give system and opens out into the broader question of whether it’s possible to create a system of cannabis controls that:
(1) Allows adult access;
(2) Substantially eliminates the harms from organized illicit business;
(3) Minimizes arrest and incarceration;
(4) Minimizes the increase in heavy use and use by minors.
Those seem to me to be the four key objectives in designing a cannabis policy. (Of course supporters of the current laws don’t regard #1 as an objective at all; tax revenue is relatively unimportant substantively, though a winning argument politically.)
Prohibition is a disaster in terms of illicit markets and law enforcement. Decriminalization might reduce the number of arrests, but wouldn’t reduce the extent of the illicit traffic (currently $40B/yr.) or do much incarceration (about 40,000 behind bars at any one time). No one seriously proposes mounting the sort of enforcement effort that would be required to shrink the illicit trade back to the level of 20 years ago.
So prohibition is no longer a viable option, and the question is what to do instead. There’s no reason to think that commercialization on the alcohol model will have acceptable results in terms of heavy use and use by minors. “Grow and give” is one among a family of options for non-commercial legalization, alongside state-monopoly retailing, cooperative and other not-for-profit production, or production by public-benefit corporations.
Barro quotes David Frum, an adviser to an anti-legalization group, as praising grow-and-give as an “elegant” approach to finding a middle way, but doubting that it’s sustainable in the face of lobbying pressure. I share that doubt. But if a possibly workable option such as grow-and-give is politically unsustainable, what does that say about trying to hold the line on an increasingly unworkable prohibition?
If the voters are given a choice between the current system and commercial legalization, it’s increasingly clear that they will choose to treat cannabis the way we treat alcohol. So if, like Frum (and me), you’re worried about the bad consequences of commercialization, you ought to be working hard at building a political coalition to support some non-commercial option, even if (like Frum but not me) you would really prefer prohibition.
Twenty years ago, the anti-pot forces made the historic blunder of resisting the development of cannabis-based medications, leaving the political field clear for the “medical marijuana” bamboozlement. Now they’re doubling down on that mistake, resisting non-commercial legalization and paving the way for the very Big Marijuana they most fear.
When the predictable upsurge in problem use arrives, the prohibition forces will have the gloomy consolation of being able to say “I told you so.” But what will console the victims of the avoidable increase in cannabis use disorder, and their parents?
John Kenneth Galbraith once defined politics as “the art of choosing between the disastrous and the unpalatable.” I appreciate that Frum finds the thought of people getting stoned unpalatable. But I hope that he, and his allies, will figure out – before it’s too late, if it isn’t already too late – that the results of allowing cannabis to be pushed the way alcohol is pushed are likely to be disastrous.
Standing athwart history yelling “Stop!” is picturesque, but not productive.