Injustice For All

In their new book Injustice for All: How Financial Incentives Corrupted and Can Fix the US Criminal Justice System, Chris Surprenant and Jason Brennan suggest many ways to change the US crime system.

They spend the most space arguing against jail; they want to cut long jail terms, and to offer most criminals a choice of jail or non-jail punishments such as caning. (I also dislike jail.)

This and most of their other suggestions can be seen as fitting a theme of favoring defendants more, relative to government. For example, they want a lot fewer acts to be punished at all, more bad acts to be punished as torts instead of as crimes, loser pays lawyer/court costs, crime law to be clear and simple, a requirement to show the accused could easily know act was criminal, no cash bail, no private prisons, no asset forfeiture, fewer no-knock raids, the same lawyers and resources given to public defense as to prosecution, juries to choose between punishment plans offered by protection & defense, notifying juries of their jury nullification ability, and more grand juries before and during trials who can cancel trials.

While this theme is quite popular today, I’m wary of this focus on changing policy to favor defendants over government. Yes the pendulum may now favor government too much, but someday it will swing the other way, and I’d like to do more than just help push this one pendulum back and forth.

Many other suggestions in the book fall under a theme of spreading out incentives, to make incentives weaker for any one party. These authors attribute many current problems to overly strong incentives, such as that induce small towns to make speed traps. They want government-managed victim restitution funds, no elected judges or prosecutors, local governments to pay more for jail costs, state governments to pay more non-jail costs, and no revenue given to police agencies based on particular cases. And they suggest that the state pay for investigate torts:

For most tort claims, the state would need to bear the responsibility and financial cost of collecting and processing evidence, as well as finding and interviewing witnesses. This information would then be available to both the would-be plaintiff and defendant.

Instead of having the state manage tort investigations, I’d rather we did more to ensure tort damages can be paid, perhaps by adding bounties. Then we could rely more on private incentives to investigate well, instead of trusting the state to do that. More generally, I want to introduce stronger elements of paying for results into criminal law, instead of just weakening incentives all around to avoid bad incentive problems.

Below the fold are many quotes from the book:

the first move in almost all cases should be to pursue the action as a civil matter and not a criminal matter … For most tort claims, the state would need to bear the responsibility and financial cost of collecting and processing evidence, as well as finding and  interviewing witnesses. This information would then be available to both the would-be plaintiff and defendant. … adopt the “English Rule” … that requires the loser to bear the [lawyer] financial costs for both parties. … victim restitution funds, which can be financed by all of the fines and fees collected by state agencies. This fund could pay for judgments against judgment proof defendants, including attorney’s fees.…

The supposed rationale behind the  no-knock raid is that it prevents suspects from flushing drug paraphernalia down the toilet. … Some moral obligations … should be legally enforced, but  most of our moral obligations should not. …

[instead of jail, consider:] Expulsion/exile … lost some or all of their property. … lost some of their legal rights.  … made into slaves and sold off.…  killed … painful corporal punishment. Humiliation … crimes were  advertised or they were made to stand in public advertising their crimes. … branded or had body parts cut off.  …  forced to stay at home or forbidden  from going to certain places. … forced to do work for the public benefit. … made to join the military. … Indeed, if given the choice, Americans  should replace incarceration with caning. … wounds are painful, but superficial, and impose no long-term  ill-effects other than scarring in areas that are always covered by clothing. … instead of having US criminal courts mandate flogging, they should simply offer it as an option. … So, perhaps incarceration (or exile or  even execution) is a better response to extremely dangerous criminals. But this applies only to a minority of criminals. … If the criminal agrees to a flogging, some portion (say half) of the money the state would have spent on incarcerating the  prisoner will go to the victim. … experiment with caning on a small  scale in certain districts, measure the effects, and if it works … we should  scale it up.  … we haven’t settled on which alternative to incarceration is  best. …

that private prisons not only offered no significant cost savings over prisons run by the  Federal Bureau of Prisons (BOP), but also performed worse than BOP facilities  in most of the important metrics … police departments and municipalities [should] not profit financially from issuing citations or seizing property.… Stop Electing Prosecutors and Judges … prosecutors [should] generally work for independent agencies who answer only indirectly to the legislature. … [Make] a pool of public attorneys, with equal pay and equal access to resources.  In any given case, a public attorney could be assigned to either a prosecutorial  or defense role. … [Or] have a pool of privately employed lawyers who have pre-qualified … When police arrest someone for a crime, the government  could select a prosecuting and defensive attorney team from this pool, offering fees in proportion to the complexity of the case. … offering a cash bonus to the winning side.…  

government must now take on the burden of disclosing the law in similarly plain and simple language,  complete with clear examples. … randomly select, say, 50 citizens. They and only they  are summoned, as in jury duty, to serve on a deliberative committee, which will review and select applicants for these jobs. …Before someone can be charged, … Unless a supermajority  of the grand jurists agrees the behavior in question is clearly a violation of  that law, then no charges can be made. During a trial, we repeat that process. … Unless a supermajority of the jurors agree the behavior in question is clearly a violation of that law, then the charges are automatically dropped. … no evidence showing that assigning cash bail makes it more  likely for defendants to appear for their court dates. … 

order for someone to be convicted of a crime, the  prosecution must prove that he (1) had intent to do something he could reasonably recognize as illegal, or (2) the applicable law was easily knowable to  the defendant … require local municipalities to pay a higher percentage of the costs of incarcerating criminals … states [should] pay the per person costs of rehabilitation  programs or other incarceration alternatives. … Imagine if prisoners could choose their own prisons and  prisons had to compete to get prisoners. … if you select a less expensive prison, thereby saving taxpayers’ money, you get to keep half the savings … Mandatory Notification of Right of Jury Nullification … If juries continually nullify a particular law, at some point, this should  lead to an automatic repeal of that law. … both the prosecution and the defense must offer an option for an appropriate punishment and it is the jury that decides between those two options.