Midway through his review of Akhil Reed Amar’s pop constitutional law book, Jeremy Waldron introduces the following scenario:
An FBI agent starts attending a particular mosque. After each visit, he writes down everything he saw and heard and reports to his superior.
Is this a search? Should the FBI agent need a warrant?
I assume that many people feel icky about the idea of government agents attending a religious service in order to snoop. I do. But it’s unclear whether we should call this a “search.” If not, the Fourth Amendment offers no protection.
Even if we decide that this is a search – in which case an FBI agent would not be allowed to do this without establishing probable cause – this snooping would be totally legal if done by a private citizen. If you attend a church service and hear something suspicious, you’re well within your rights to report to the authorities. Our constitution permits more intrusion by the general populace than by government employees.
But… what qualifies someone as being in the government’s employ?
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In jail recently, we read Virginia Adair’s “Cor Urbis.” This poem trudges through urban decay with stanzas like:
And so to the cubicle of stench
Past rats running for offices
Roaches and flies feeding like bankers
We come fast to the heart
the heart of the great city.
The men loved this. The insects were being insulted… by comparing them to human bankers. The imagery throughout this poem is simultaneously realistic – as we walk the corridor rats skitter away and duck inside the adjacent offices – and surreal – the city has fallen so far that the very rats stand on streetcorners, shaking hands, announcing their platforms, swearing “If you vote for me, I’ll clean this place up!”
After discussing the poem, we tried writing about cities we’ve lived in as though they were bodies – in “Cor Urbis,” Adair writes that the “guns have human eyes,” the streets are “varicose thoroughfares,” and building “facades ooze and peel like scabs.” Cancer imagery is common in literature, too, conveying that one aspect of a city or society has careened out of control…
For the exercise, I wrote a short poem about Silicon Valley as a Stepford Wife: dyed platinum blonde hair, surgically-enhanced physique, immaculately styled, exhaling money… with no soul. One man wrote that his home town was dead.
And another participant wrote a piece that began with the line, “Bloomington, full of rats and lies.”
Bloomington: full of rats? A large rat does live behind my compost bin. This monstrous rodent feasts on vegetable scraps. Each evening with our leavings I pay tribute to the Rat King!
But that’s not what our writer meant. He was talking “rat” as in “police informant.”
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If a police officer snoops around your home, spots drugs, and then files for a warrant, we have a problem. The officer has violated the Fourth Amendment. Any evidence of wrongdoing is supposedly inadmissible in court, per the “exclusionary rule.”
If a private citizen snoops around, spots drugs, then tells the police… and then the police file for a warrant, based on this private citizen’s tip… they’re in the clear. This is a perfectly legal sequence of events. The Fourth Amendment doesn’t apply to people who aren’t working for the government.
Even if, suddenly, they are.
With mandatory minimums hanging over their heads, people break. Many, brought into jail, become informants. They aren’t considered government employees, because they receive no monetary compensation for their tips… but they receive something more valuable. They’re being paid with their lives.
Let’s say a person’s car was searched, and the police find a few grams of a white powder… and this person has priors, and kids… and the prosecutor starts rattling off threats, if you take this to court, we can put you away for twenty years… twenty years? For that? When no one was hurt? In twenty years, those kids will have kids of their own.
Of, if you cooperate, you could walk today…
In game theory, there’s a famous scenario called “the prisoners’ dilemma.“ Presumably you’ve heard the set-up: two people are each being interrogated separately by government agents. Prosecutors have enough evidence to convict each on a minor charge, but would rather pin a major crime on somebody – that’s what brings prosecutors the publicity they need to stay in power.
If both suspects stay mum, they’ll each land five years in prison. If both betray each other, they’ll each get ten years. But if one stays mum and is betrayed, the talker walks and the hold-out gets fifteen years.
According to an economist, each should betray the other. When we draw out all the possible choices and the payoffs, we see that, no matter what Prisoner B chooses, Prisoner A will serve less time by talking (either Prisoner B has chosen “Betray,” in which case Prisoner A gets 10 years instead of 15 by talking, or else Prisoner B has chosen “Silent,” in which case Prisoner A gets zero years instead of 5 by talking).
And so that is the choice Homo economicus – an imaginary “perfectly rational” being – would make. Homo economicus betrays friends. And both players serve more prison time than they would’ve if they’d managed to stay mum.
Economists agree that there is a better strategy – in the outcome described above, both suspects land more prison time (10 years each) than they would’ve if they’d managed to stay mum (5 years each) – but only in the context of the “repeated prisoners’ dilemma.” If we play many times with the same partners, there is a powerful incentive to cooperate. We are building a reputation. We can signal to our friends that we are not rational. We can stay silent when Homo economicus would not.
Of course, the mandatory minimums for drug crimes are so egregiously long that people only play this game once. The sentences can be measured in decades – huge fractions of our lives – and we each have just one life to live.
I assume that’s why so many dudes in jail – especially the young dudes – have the words “Death Before Dishonor” crudely inked on their forearms. In a world where people might only make these choices once, we need ways to signal our irrationality in advance. You can trust me because I am not Homo economicus and will not act in my own self interest.
This same principle might explain why we humans are so emotional. Most animals will fight: there’s only so much food and territory and premium nookie to go around. And they’ll fight when threatened. But humans launch all-out irrational vendettas.
Why?
Here’s Daniel Dennett’s supposition, presented in Freedom Evolves:
When evolution gets around to creating agents that can learn, and reflect, and consider rationally what they ought to do next, it confronts these agents with a new version of the commitment problem: how to commit to something and convince others you have done so. Wearing a cap that says “I’m a cooperator” is not going to take you far in a world of other rational agents on the lookout for ploys. According to [economist Robert] Frank, over evolutionary time we “learned” how to harness our emotions to the task of keeping us from being too rational, and – just as important – earning us a reputation for not being too rational. It is our unwanted excess of myopic or local rationality, Frank claims, that makes us so vulnerable to temptations and threats, vulnerable to “offers we can’t refuse,” as the Godfather says. Part of becoming a truly responsible agent, a good citizen, is making oneself into a being that can be relied upon to be relatively impervious to such offers.
Not everyone is sufficiently emotional to give up five years in order to stay true to an ideal, however. It’s especially hard while sitting around in jail, sweating through withdrawal, sleep deprived, nineteen hours a day of fluorescent light and even the brief dark merciless since that’s when the nearby schizoid man spends two hours straight rhythmically kicking his cell door…
Tortured this way, people break. They start dropping names.
Despite the fact that we’ve given our police officers millions of dollars worth of military-grade equipment to fight the “War on Drugs,” most preliminary evidence is gathered by shaking down impoverished addicts. They’re hauled in, locked up, and then offered a brief reprieve of freedom – during which time the police know their informants are planning to use again, which is why the offer is so tempting – in exchange for betraying their friends and neighbors.
The use of informants evades the strictures of the Fourth Amendment. But, as a tactic in the “War on Drugs,” this is absurd.
For people to get clean and stay clean, we need stronger communities. We need to foster more trust in people’s friends and neighbors. Several of my friends have sobered up over the years – from meth, pills, heroin, pot, or alcohol – and every single one of them would readily acknowledge that he couldn’t have done it alone.
But the use of police informants saps trust. Which means that, when people get out, and they are struggling to stay sober… they won’t have a community they trust to catch them.
The opiate epidemic is, in many ways, a symptom of a bigger problem in this country. And the punitive way that we’ve been trying to fix it? We’re making it worse.
Frank Brown Cloud 