On government intrusion and addiction.

On government intrusion and addiction.

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?fbi

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?


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.

melonThe 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.”



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.US_incarceration_timeline

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.

pdil 1.jpg

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).

pdil 2.jpg

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.


Here’s Daniel Dennett’s supposition, presented in Freedom Evolves:

9780142003848When 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.

On punishment as criminal deterrent.

On punishment as criminal deterrent.

crimeLike a lot of people interested in prison reform, I am skeptical of the idea that draconian punishments are good crime deterrents.

The basic logic behind the belief in crime deterrence is totally sensible.  If people are rational, they’re probably weighing the costs and benefits of their actions before making any decision.  If you’re considering whether to go to college, you’d consider the tuition bills and your lost wages while you’re sitting in classrooms instead of working and the effort it’d take to pass all your classes, then you’d balance that against increased earning potential and personal satisfaction and whatever else you might hope to gain (incredible beer pong prowess?). 

If you’re considering whether to stab somebody and steal his wallet, you’d consider the risk of being caught, the likely punishment you’ll face, the moral qualms you’ll feel later, and balance that against how much cash you think the dude is carrying.

For that latter calculation, increasing the length of prison terms, and making prisons more miserable places to be in, should make potential criminals less likely to stab & rob people.

All very sensible.  Unfortunately, it doesn’t seem to be true.  There’s some empirical evidence suggesting that it’s false, like similar crime rates in adjacent states with differing severity of punishment, and similar crime rates before and after bills affecting the severity of punishment were passed.  The data suggest that actual criminals simply are not making that sort of risk/benefit calculation.

(For someone else’s take on this, check out p. 11 of this reference from the Federal Judicial Center… from 1994.  And yet only now, over a decade after we realized that mandatory minimums weren’t helping, is there tentative talk from politicians about fixing them.)

paddleAnd there are reasons why we might’ve anticipated that the relationship (the “more punishment = less crime” idea) would not hold.  For one thing, behavioral economists have documented countless ways in which humans are not very rational creatures.  We pay too much for gym memberships.  We eat poorly, even though we know we don’t really want to eat that whole bag of jellybeans tonight (I too spend many evenings roiling in bed, clutching my belly, moaning whhhyyyyy ).  Males routinely underestimate risks and overestimate rewards, especially if there’s money involved, and especially if there’s sex involved.

That’s for the populace as a whole.  None of us are very rational.  It’s probably reasonable to assume that the sort of person whose circumstances are so dire as to make petty crime seem like the only option is even less likely to make accurate, level-headed assessments of risks and rewards.

Furthermore, a lot of criminals act upon the passions of the moment.  Not everyone –hardly anyone, I’d say — who commits murder is like Raskolnikov, plotting out the perfect crime in advance.  If you feel mad, pick up a gun, and shoot someone, there’s hardly time to think about how many years you might spend in prison, or whether or not you’ll receive the death penalty, or even how much remorse you’ll feel ten minutes later.

I attended a class at Bloomington Woodworks recently, and the instructor gave an interesting answer to the question, “If the joiner can do all that in a minute, why were we leveling all those boards by hand?”

He told us, “The machines make your work go faster.  But, if you make a mistake?  They make your mistakes go faster too.  While you’re working by hand, you can stop and check your progress and if something looks wrong, you can fix it.  If you made that mistake on a machine, it’d already be too late.”

firearm-409000_640Violent, impassioned people often kill people with guns.  Yes, they could kill people with knives or hammers or their bare hands, too.  But guns kill people faster.  That’s why the risk of successful suicide skyrockets in homes with guns — the time from a bad thought to being dead is so short.  Similarly, if you get angry and pick up a gun, there’s little time to think.  If you grab somebody by the neck, there’s at least a few extra seconds for the little voice in your head to ask, “Um, dude, what are you doing??”

So I’m skeptical that the absurdly long mandatory minimums in the U.S. actually accomplish anything.  Huge numbers of people in prison should not be there still.  I don’t think anyone whose behavior caused no harm to others should’ve ever been incarcerated.  But, beyond that, a lot of harmful people shouldn’t be in prison still.  Their sentences are often too long, too.

A big problem is our country’s dismal efforts toward rehabilitation.  We put convicted criminals into stressful, violent prisons, let them languish for many years, spend little or nothing on their education or job training… and then don’t want to let them out because they’re still “scary.”

Instead, criminals should be locked away for shorter periods of time, treated better while they’re in prison, and given the training they’ll need to successfully re-enter the outside world.  But few politicians would vote for that.  The problem is, people would argue that curtailing punishment makes crime more attractive.  They’d base their reasoning on that same inaccurate theory that criminals are making cold calculations of the risks and benefits of each illegal act in advance.

As I mentioned, for most crime, that theory doesn’t seem to be true.

And that’s why I was so pleased that Gretchen Morgenson’s recent “Fair Game” column brought my attention to a study documenting a type of crime for which that theory does hold.  Apparently there are some criminals out there who appear to be making nuanced risk / benefit calculations before their misdeeds.

Kedia et al., in their study “Evidence on Contagion in Earnings Management” (which I haven’t had a chance to read, sadly.  It’s still in press, so even though I can read all the fancy academic journals through the local university library, I can’t access it yet), showed a significant inverse correlation between regulatory action and earnings manipulations by others within an industry.  In other words, more punishment = less crime.  Exactly what politicians had been claiming was true for poor people selling drugs or stealing socks or vandalizing alleyways.

handcuffs-257995_640The relationship does not hold in general, but Kedia et al. provided evidence that high-level financial crime can be held in check by the threat of punishment.

In a way, it makes a lot of sense that this would be the case.  Humans aren’t very rational, but I think it’s safe to say that accountants are more rational than the rest of us.  Financial crimes also take a long time and only slowly build enough momentum as to seem irreversible.

If you get mad, pull out a gun, and shoot your spouse, it doesn’t matter how you feel that evening.  Your spouse is dead.  You screwed up.  The end.  But, if you’ve cooked the books?  You could go back the next day and correct the spreadsheet.  You could fix it next week.  You could probably fix it next year.

Many financial crimes require constant renewed commitment to criminal behavior.  Another good example is the — thankfully illegal, unfortunately still common — tendency for lenders to deny mortgages to black borrowers, or charge them much higher interest rates than they charge whites.  If you’re a banker and you turn away a qualified black borrower, well, maybe you can’t call that person up later that day to say, “I’m sorry, I was a racist jerk, I’ve reconsidered.”  But you could very easily approve the loan of the next qualified black borrower.

Criminal lending practices afforded the perpetrators hundreds, sometimes thousands of opportunities to stop breaking the law and instead do the right thing.

So, yes, it seems sensible that for these types of crime, the threat of punishment really would alter how much crime occurs.

Is it time for the sad coda to this essay now? 

For types of crimes that are not deterred by heavy punishment, the U.S. ruthlessly pursues draconian sentences.  But for the sort of financial crime that would be deterred by the threat of serious punishment?  In the U.S., perpetrators are typically let off scott-free.  They’re treated more gently than kindergarteners: they’re often not required to admit they did anything wrong or offer an apology.

(“Associated Bank denies any allegation that it engaged in discriminatory lending on a prohibited basis…”)