In Sunday’s Ask Ms. Crissie Feature, I snarkily noted a rising wave of righteous – or not – anger sweeping the nation. (More)


Last week I shredded a conservative talking point: the “moral hazard” of distressed homeowners not “bearing the consequences of their bad actions,” a topic I’ll return to tomorrow, from a different perspective, offering a Requiem for Homo Economicus.

But today I’ll look at a progressive talking point: the “moral hazard” to our Constitution and the rule of law if Bush officials are not prosecuted for their bad actions.  There are good reasons to investigate those acts and, if investigation reveals evidence of crimes, to prosecute.  But the “moral hazard” argument isn’t one of those good reasons.

Punish the Evildoers – Justice and Myth

HARRY:  So Bob, should we kill her?

BOB:  Well, it would sure feel good.  But there’s a 41% chance we’ll be arrested.

HARRY: But only a 10% chance we’ll be convicted.

BOB: And the average sentence for homicide is about 30 years.

HARRY: So figure she’s worth an average 3 years.  Is it worth it?

BOB: Well, I mean, how good would it feel to kill someone?

HARRY: I dunno.  Three years worth of good?  Okay, let’s … what the hell?

BOB: She got away while we were calculating.

Those statistics are real.  The L.A. Times reported a 2007 homicide arrest rate of about 41% in L.A.  I’ve no idea if that’s higher or lower than the national average, but the Bureau of Justice Statistics reported a recent homicide rate of about 6 per 1000, and a homicide conviction rate of about 0.6 per 1000.  And a 2001 study by the Illinois Department of Corrections showed an average 33-year sentence for homicide in that state.  Again, I don’t know if that’s higher or lower than the national average, but I’d guess it’s close to the norm.

Still, the conversation is absurd, and it points to one of the myths surrounding the criminal justice system: the myth of the rational criminal actor.

Sociologists study whether it’s true, but my eight years of practice in criminal law led me to conclude it’s a myth.  In my experience, people who commit crimes don’t use game theory to calculate optimum pleasure:punishment ratios, and people who use that reasoning don’t commit crimes.  That should tell us a lot about deterrence theory.

General vs. Specific Deterrence

Deterrence theory has a long and checkered history.  But it’s important to distinguish the two basic classes of deterrence:

  1. General deterrence focuses preventing crime in society as whole.  It says that if the likelihood and severity of punishment are greater than the pleasure derived from the act, fewer individuals will commit crimes.
  1. Specific deterrence focuses on preventing repeat offenses by individuals who have committed a crime.  It says that individual is less likely to commit another crime if he/she is in prison, or has previously been punished.

Specific deterrence works while the individual is in prison, at least as regards crimes against ordinary citizens.  But crimes within prison are very common, and the recidivism rates are staggering.  In fact, the only thing that seems to seriously deter crime is age: both arrest and conviction rates drop by about 90% once an individual passes the age of 25, and even lower once an individual passes 35.

As for general deterrence, however, the data suggest it doesn’t work.  Does that mean people are irrational?  I don’t think so.  I think sociology and game theory combine to offer a better reason.

Criminal Cultures

I’ve opined before that homo sapiens sapiens is a herd species.  Some have disagreed as to zoological specifics – whether we’re a herd or a pack species – but that’s a definitional dispute.  I should note that is not a criticism.  Cape buffalo have surprisingly complex and nuanced social structures that are very similar to ours.  But regardless of the specific sub-classification, we’re certainly a social species.  And we generally make decisions that are rational, as viewed within our own cultures.

That italicized language is important.  Put an ordinary human being into a criminal culture, and there is a higher probability that he/she will be criminalized by that culture.  Philip Zimbardo demonstrated this in the Stanford Prison Experiment, but you’ve probably experienced it yourself in driving.  If the speed limit is 55, but everyone around is driving faster than that, most of us tend to keep pace with the flow of traffic.  We know we’re breaking the law, but it seems like the “right” thing to do.

Game theory offers some insights there.  Driving faster than the speed limit, but with the flow of traffic, offers a marginal gain: we get to our destination a bit faster.  (The time saved is usually smaller than you think, however.)  More important, it seems to offer much less risk, for two reasons.

First, we feel we’re at less internal risk of being constantly overtaken, and it feels unsafe when people are zooming around us.  And in fact some of that risk perception is real, as cars much slower than the flow of traffic do disrupt that flow and lead to more accidents.

Second, we feel we’re at less external risk of being stopped and ticketed.  If everyone is driving 65 on a 55mph zone, the cops can’t stop everyone, and why would they single out you?  So long as you’re not the fastest or most erratic car on the road, they’re likely to pick someone else.  And again, that’s not merely perception.

The same dynamics apply in criminal cultures.  By going along with the culture, the individual may gain some benefit by the criminal acts, and there is less risk of punishment – the internal risk of punishment from within the group and the external risk of punishment by law enforcement – because “everyone’s doing it.”

And the dynamics apply whether the criminal culture is a drug gang on Mean Street, a greed gang on Wall Street, or a surveillance and torture gang from National Security Street.  Those within the culture are not acting on the rational structures of society as a whole.  They’re acting on the rational structures within that culture.

We need to prosecute, yes.

Both Wall Street and National Security Street have become criminal cultures.  Conservative narratives celebrating materialist greed bred a criminal culture on Wall Street, and conservative narratives celebrating necessity – the ends justify the means, so do “whatever it takes” – bred a criminal culture on National Security Street.  Those narratives are immoral, and the cultures built on those narratives foster immoral acts.

Let me be clear: I agree that we should investigate wrongdoing on Wall Street and National Security Street.  And if the investigations develop evidence of crimes, we should prosecute those involved.

That’s because I believe specific deterrence works.  Punishing those who committed crimes of greed on Wall Street, or who ordered or participated in illegal surveillance and torture on National Security Street, will deter those individuals from committing repeat offenses.

But I don’t think it will deter anyone else, now or in the future.  The data show that general deterrence has almost no effect within a criminal culture.  To restore the Constitution and the rule of law, we have to change the culture on Wall Street and in government.

We need to preach.

For too long, progressives have been reluctant to preach.  We’ve allowed conservatives to own the field of moral discourse.  But conservative morality is inherently immoral.  It allows criminal cultures to thrive, while trumpeting the narrative of “personal responsibility” to punish individual actors.  Cultural conservatives focus on the minutiae of who has sex with whom, and ignore the malignancies of greed, power, pride, and the morally toxic belief that noble ends justify ignoble means.

We progressives need to preach morality: that we’re all in this together, that the law of the jungle is not the law of our nation, that even noble ends cannot justify ignoble means, that to be a virtuous people is to be responsible to and for each other.  We need to preach that on Mean Street, on Wall Street, and on National Security Street.

Prosecutors can offer only specific deterrence, and yes we do need that.  But for general deterrence, we need to change the criminal cultures.  Prosecutors can’t do that.  Preachers can.

Happy Tuesday!