Isn't the difference that the cases we let people pay more for are things that are only constrained by resources (so naturally we let people use their resources to increase them) while we forbid things that are already the "the right level"?
Ideally, the chance of catching any criminal would be 100% and everyone would have a brilliant lawyer, but we would want every crime to have infinitely long punishment.
Empirically, it seems that criminals are deterred much more by a high probability of punishment rather than a very negative expected value of being caught.
We should also care though about the cruel punishments being cruel - this is a bad thing in an of itself. For instance, your logic would dictate that if you paid enough you should be able to torture someone forever. Which seems bad.
Let's say that deterrence = p(getting caught if guilty) * p(fair trial) * [magnitude of punishment].
I think Brendan is saying that the ideal level of the probabilities is 1, so we let people pay to improve them. So the ideal level of deterrence just reduces to the magnitude of punishment. And the ideal level of that is (in theory) the existing sentencing standards.
(I also think Brendan meant to say "we would NOT want every crime to have infinitely long punishment.)
I'm not sure if I agree with this, a world where you are 100% likely to get caught for a crime and serve 1 year in prison seems better than a world where you are 10% likely to get caught and serve 10 years. It seems fairer. It also decreases the effect that individual people's risk appetites have on the subjective level of deterrence.
I think you might be conflating "the optimal level of deterrence given limited resources" and "the level of deterrence we'd want if there were no tradeoffs". The level of crime deterrence I want is 100% (every crime gets caught), but I don't necessarily want to increase punishment, or to spend more money on catching crimes.
But if *someone else* wants to spend money increasing the chance of catching crimes without me needing to do anything, then that's a pure win for me. From my perspective, their spending isn't *optimal*, but it's still *good*, and I'm not paying for it so why would I stop them?
(And these levels have a feedback loop, where if the chance of catching criminals goes up and crimes goes down, it will become more politically feasible to reduce punishment)
I’m unsure whether this matters for your overall point, but do you have references for the claim that chance and level of punishment "both contribute the same to deterrence”? I’ve not looked at this literature, but I remember being told that the chance of punishment matters more than level. My first result on Google for ‘punishment severity frequency’ is this paper, which suggests that chance is more important than level. https://www.pnas.org/doi/10.1073/pnas.2108507118
On your 'pay for increased punishments' proposal: people might be willing to tolerate inequality in cases where the inequality sufficiently improves the chance of justice, because they believe (e.g.) that allowing people to hire private investigators or install cameras is more likely to lead to correct pronouncements of innocence/guilt. If you allow people pay to increase the severity of punishment, there isn't a comparable increase in the probability of a correct outcome. Admittedly, 'allowing people to pay for better lawyers' doesn't obviously increase the probability of a correct decision either, but I expect that most people who'd denounce the 'pay for punishment' proposal would also object to the status quo where rich people can hire better lawyers.
If the probability of correct verdict is low, does the severity of punishment deter in any way? If I commit a crime, they'll catch a random guy and do bad things to him. So what?
In other words, the effect of substituting severity of punishment for good verdict is likely to be a lot of crime combined with a lot of innocent people serving long sentences.
Is the primary (supposed) virtue of an adversarial legal system that it is the most efficient way of reaching the truth of any conflict? If yes, I don’t think many feel the adversarial legal system achieves this. I wonder how often this is true: Before a civil trial, the public is often in agreement that the deciding factor in the trial will not be 1)not the truth of the issue but instead 2)the quality of the lawyers. Yet after a trial, the public seems often in agreement that the truth of the matter was the deciding factor.*
*This seems to be qualified by many big exceptions, maybe enough that it is not at all an accurate general description.* But if it is an accurate general description, it displays an interesting phenomenon of the public’s ex ante realism about prospective inequality but ex post reluctance to acknowledge such inequality. Folks seem to have caught on though, so maybe it is more accurate to say that, when not the center of attention, which for most people is 100% of the time, the courts provide a tolerable appearance of equality, at least on a superficial level.
Paying more for a lawyer seems obviously different to bribing a judge. A good lawyer can present the best argument for your case, whereas a bribed judge can simply rule in your favor even if you have no case.
Might the difference be the “potential” of equality rather than any particular incidence? For example with lawyers, hypothetically any given lawyer could perform as well as any other, but if they were operating under distinct rules for plaintiff and defendants it eliminates some of the “level playing field” under which that potential could be realized. The same in sport with performance enhancing drugs, even though natural talent and training provide similar means of distinguishing performance. Hypothetically anyone could train to similar levels of excellence.
Assigning lawyers at random, and somehow equalizing how much litigants and defendants pay, would greatly lower the earnings of the most competent lawyers and thus be opposed by almost all bar associations. It might be welcomed by the lower-earning lawyers though.
Britain used to, and I believe still does, allow private prosecution of crimes such as robbery, thus enabling a victim who is rich and/or has lots of friends to see his attacker go to prison even if the local prosecutor's office doesn't want to bother. I wish this were allowed in the US; it would limit the ability of corrupt prosecutors to let off real criminals (of the prosecutor's own party) while persecuting victims who defend themselves. Of course it would work better if the official prosecutors didn't have immunity.
We let people pay to increase the chance of catching someone else committing a crime, but isn't it often an aggravating factor if you pay to cover up your own crimes?
Rich enough to be able to be at a computer at 12pm on a Monday to spam the refresh button on a concert website? Rich enough to have many friends with the same lax work schedule capable of helping your group get tickets? No problem, society doesn't scorn you.
But if you suggest that first-come-first-serve is dumb and we should just use an auction for all in-demand concert tickets or Burningman tickets or whatnot... nope, that's somehow unfair and unacceptable.
Public school education. Everyone gets into a public school, can’t buy your way in to a better one directly, but you can fork up the cash to buy a house in the district with a better system.
"We currently let people pay more to increase the chance of punishment for crimes where they are the victim." This is an intentionally obtuse and misleading interpretation of the reasons a crime might go unpunished and the mechanisms (including effort or paid effort) for increasing it due to a few of those reasons.
This kind of conflation of different dimensions of the practical limits of criminal investigation and punishment does harm to your credibility.
I mean, you're absolutely and trivially right that "we like the appearance more than the substance of equality." I don't intend to argue against that, as I can't.
However, you're incorrect if you think that an individual working to identify a criminal is exactly the same as "paying to increase the chance of being punished", or comparable to "paying to increase the penalty if caught". I think my basic disagreement is that the complexity of criminal prosecution can be usefully reduced to expected value of "chance of being caught times average sentence".
Emergency medicine? It's accepted, at least in Anglophone countries, that the rich will get better treatment for chronic conditions: but for victims of a terrorist bombing, or a mass shooting, to receive different emergency care by virtue of their health insurance would seem wrong. And a doctor who saw two people collapse with heart attacks, and chose to treat the less serious one as they thought they'd be better paid for doing so, would risk being expelled from the profession.
If accurate, could plausibly point in at least two directions. Professional capture - doctors wouldn't like to have to personally take responsibility for choosing who dies on the basis of how much money they have, as doing so would undermine the image they have of themselves, and the basis on which society grants them status. Might chime with the fact that the things you're allowed to spend money on in the legal system are those which make lawyers richer.
Also, and overlapping, the universal desire not to have to be faced with the reality of the choices we make. And, where we can't avoid being faced with reality, being prepared to pay for reality to be postponed until it can occur at a convenient distance, veiled in mist.
People mostly think of punishment as retribution, not deterrence. It follows from that that there should be an “ideal” size of punishment, but chance of getting caught should always be increase. It doesn’t help that people don’t understand probabilities nor trade-offs; for instance, many people say the chance of an innocent being arrested should be zero, which would obviously only be possible if we did not arrest anyone.
We allow people to pay to increase the chance of punishment because we
agree that every crime should be punished (exception: crimes that some people think shouldn't be crimes at all, e.g. drug possession), but we recognize that the government has limited resources for law enforcement and so as a practical matter enforcement will never be ideal. So if I pay to increase the probability of punishment for crimes committed against me, I am increasing the overall level of justice (and deterrence) in society, albeit unequally.
OTOH, there is in theory an ideal amount of punishment for any given crime, so letting victims pay for more punishment would decrease justice overall.
The ideal is 100%. Obviously that's not optimal, which is why we tolerate far less. If enforcement were free, we would choose 100% (pretending we all agree on the correct laws). Private spending on enforcement gets us closer to 100% with zero cost to the public.
Isn't the difference that the cases we let people pay more for are things that are only constrained by resources (so naturally we let people use their resources to increase them) while we forbid things that are already the "the right level"?
Ideally, the chance of catching any criminal would be 100% and everyone would have a brilliant lawyer, but we would want every crime to have infinitely long punishment.
The right level of deterrence is the product of the two input levels. So you can't set the right level of either input independently of the other one.
Empirically, it seems that criminals are deterred much more by a high probability of punishment rather than a very negative expected value of being caught.
We should also care though about the cruel punishments being cruel - this is a bad thing in an of itself. For instance, your logic would dictate that if you paid enough you should be able to torture someone forever. Which seems bad.
I'm with Brendan, not following your point here.
Let's say that deterrence = p(getting caught if guilty) * p(fair trial) * [magnitude of punishment].
I think Brendan is saying that the ideal level of the probabilities is 1, so we let people pay to improve them. So the ideal level of deterrence just reduces to the magnitude of punishment. And the ideal level of that is (in theory) the existing sentencing standards.
(I also think Brendan meant to say "we would NOT want every crime to have infinitely long punishment.)
Yes, I meant "would NOT want every crime to have infinitely long punishment". That typo probably made my argument really confusing.
I'm not sure if I agree with this, a world where you are 100% likely to get caught for a crime and serve 1 year in prison seems better than a world where you are 10% likely to get caught and serve 10 years. It seems fairer. It also decreases the effect that individual people's risk appetites have on the subjective level of deterrence.
I think you might be conflating "the optimal level of deterrence given limited resources" and "the level of deterrence we'd want if there were no tradeoffs". The level of crime deterrence I want is 100% (every crime gets caught), but I don't necessarily want to increase punishment, or to spend more money on catching crimes.
But if *someone else* wants to spend money increasing the chance of catching crimes without me needing to do anything, then that's a pure win for me. From my perspective, their spending isn't *optimal*, but it's still *good*, and I'm not paying for it so why would I stop them?
(And these levels have a feedback loop, where if the chance of catching criminals goes up and crimes goes down, it will become more politically feasible to reduce punishment)
Ah, a longer sentence, for example, uses more resources...
~$100/day.
I’m unsure whether this matters for your overall point, but do you have references for the claim that chance and level of punishment "both contribute the same to deterrence”? I’ve not looked at this literature, but I remember being told that the chance of punishment matters more than level. My first result on Google for ‘punishment severity frequency’ is this paper, which suggests that chance is more important than level. https://www.pnas.org/doi/10.1073/pnas.2108507118
On your 'pay for increased punishments' proposal: people might be willing to tolerate inequality in cases where the inequality sufficiently improves the chance of justice, because they believe (e.g.) that allowing people to hire private investigators or install cameras is more likely to lead to correct pronouncements of innocence/guilt. If you allow people pay to increase the severity of punishment, there isn't a comparable increase in the probability of a correct outcome. Admittedly, 'allowing people to pay for better lawyers' doesn't obviously increase the probability of a correct decision either, but I expect that most people who'd denounce the 'pay for punishment' proposal would also object to the status quo where rich people can hire better lawyers.
I reworded the post to say that chance matters at least as much as level of punishment.
If the probability of correct verdict is low, does the severity of punishment deter in any way? If I commit a crime, they'll catch a random guy and do bad things to him. So what?
In other words, the effect of substituting severity of punishment for good verdict is likely to be a lot of crime combined with a lot of innocent people serving long sentences.
Is the primary (supposed) virtue of an adversarial legal system that it is the most efficient way of reaching the truth of any conflict? If yes, I don’t think many feel the adversarial legal system achieves this. I wonder how often this is true: Before a civil trial, the public is often in agreement that the deciding factor in the trial will not be 1)not the truth of the issue but instead 2)the quality of the lawyers. Yet after a trial, the public seems often in agreement that the truth of the matter was the deciding factor.*
*This seems to be qualified by many big exceptions, maybe enough that it is not at all an accurate general description.* But if it is an accurate general description, it displays an interesting phenomenon of the public’s ex ante realism about prospective inequality but ex post reluctance to acknowledge such inequality. Folks seem to have caught on though, so maybe it is more accurate to say that, when not the center of attention, which for most people is 100% of the time, the courts provide a tolerable appearance of equality, at least on a superficial level.
Paying more for a lawyer seems obviously different to bribing a judge. A good lawyer can present the best argument for your case, whereas a bribed judge can simply rule in your favor even if you have no case.
Might the difference be the “potential” of equality rather than any particular incidence? For example with lawyers, hypothetically any given lawyer could perform as well as any other, but if they were operating under distinct rules for plaintiff and defendants it eliminates some of the “level playing field” under which that potential could be realized. The same in sport with performance enhancing drugs, even though natural talent and training provide similar means of distinguishing performance. Hypothetically anyone could train to similar levels of excellence.
In sport, it might make sense to have a level field but differing abilities of athletes. But here we are supposedly trying to get justice.
Assigning lawyers at random, and somehow equalizing how much litigants and defendants pay, would greatly lower the earnings of the most competent lawyers and thus be opposed by almost all bar associations. It might be welcomed by the lower-earning lawyers though.
Britain used to, and I believe still does, allow private prosecution of crimes such as robbery, thus enabling a victim who is rich and/or has lots of friends to see his attacker go to prison even if the local prosecutor's office doesn't want to bother. I wish this were allowed in the US; it would limit the ability of corrupt prosecutors to let off real criminals (of the prosecutor's own party) while persecuting victims who defend themselves. Of course it would work better if the official prosecutors didn't have immunity.
We let people pay to increase the chance of catching someone else committing a crime, but isn't it often an aggravating factor if you pay to cover up your own crimes?
Concert tickets.
Rich enough to be able to be at a computer at 12pm on a Monday to spam the refresh button on a concert website? Rich enough to have many friends with the same lax work schedule capable of helping your group get tickets? No problem, society doesn't scorn you.
But if you suggest that first-come-first-serve is dumb and we should just use an auction for all in-demand concert tickets or Burningman tickets or whatnot... nope, that's somehow unfair and unacceptable.
Public school education. Everyone gets into a public school, can’t buy your way in to a better one directly, but you can fork up the cash to buy a house in the district with a better system.
"We currently let people pay more to increase the chance of punishment for crimes where they are the victim." This is an intentionally obtuse and misleading interpretation of the reasons a crime might go unpunished and the mechanisms (including effort or paid effort) for increasing it due to a few of those reasons.
This kind of conflation of different dimensions of the practical limits of criminal investigation and punishment does harm to your credibility.
So give us an argument please.
I mean, you're absolutely and trivially right that "we like the appearance more than the substance of equality." I don't intend to argue against that, as I can't.
However, you're incorrect if you think that an individual working to identify a criminal is exactly the same as "paying to increase the chance of being punished", or comparable to "paying to increase the penalty if caught". I think my basic disagreement is that the complexity of criminal prosecution can be usefully reduced to expected value of "chance of being caught times average sentence".
Emergency medicine? It's accepted, at least in Anglophone countries, that the rich will get better treatment for chronic conditions: but for victims of a terrorist bombing, or a mass shooting, to receive different emergency care by virtue of their health insurance would seem wrong. And a doctor who saw two people collapse with heart attacks, and chose to treat the less serious one as they thought they'd be better paid for doing so, would risk being expelled from the profession.
If accurate, could plausibly point in at least two directions. Professional capture - doctors wouldn't like to have to personally take responsibility for choosing who dies on the basis of how much money they have, as doing so would undermine the image they have of themselves, and the basis on which society grants them status. Might chime with the fact that the things you're allowed to spend money on in the legal system are those which make lawyers richer.
Also, and overlapping, the universal desire not to have to be faced with the reality of the choices we make. And, where we can't avoid being faced with reality, being prepared to pay for reality to be postponed until it can occur at a convenient distance, veiled in mist.
I'm looking for cases of multiple inputs that matter for some output we care bout. I'm only seeing one input in this case.
In practically terms, it's covered by the possibility of plea- bargaining, whis is indeed covered by the executive branch.
People mostly think of punishment as retribution, not deterrence. It follows from that that there should be an “ideal” size of punishment, but chance of getting caught should always be increase. It doesn’t help that people don’t understand probabilities nor trade-offs; for instance, many people say the chance of an innocent being arrested should be zero, which would obviously only be possible if we did not arrest anyone.
We allow people to pay to increase the chance of punishment because we
agree that every crime should be punished (exception: crimes that some people think shouldn't be crimes at all, e.g. drug possession), but we recognize that the government has limited resources for law enforcement and so as a practical matter enforcement will never be ideal. So if I pay to increase the probability of punishment for crimes committed against me, I am increasing the overall level of justice (and deterrence) in society, albeit unequally.
OTOH, there is in theory an ideal amount of punishment for any given crime, so letting victims pay for more punishment would decrease justice overall.
No, considering costs the optimal chance of punishment is just not 100%.
The ideal is 100%. Obviously that's not optimal, which is why we tolerate far less. If enforcement were free, we would choose 100% (pretending we all agree on the correct laws). Private spending on enforcement gets us closer to 100% with zero cost to the public.
If you let victims pay for more punishment, you could use the money to make law enforcement more effective