Good Cops vs. Bad SWATs

I had the following email exchange with Alex Tabarrok of Marginal Revolution, which I thought readers might find interesting. Here’s what I wrote to Alex:

I notice that you linked Radley Balko's SWAT study today. After reading your post yesterday in which you voiced support for hiring more cops, I was thinking of sending you the link to Balko's study. I'm wondering if you see any tension between your position and Balko's findings. My take: The sort of policing that really reduces violent crime (whose efficacy is shown by your own and others' research) is probably not the sort of policing that Balko rightly condemns. But for public choice reasons, we should be very wary of supporting increased police funding, because we have no guarantee that the funds won't be diverted to SWAT-style anti-drug policies instead of good policing.

In other words: I'd support greater funding for police work if it didn't have so many negative externalities in the current system.

Alex replied:

Yeah, I was wondering whether people would pick that up! My general view on all these kinds of issue is to take one problem at a time and on that problem always go for first best. Thus more cops and less war on drugs but not fewer cops as a way of lessening the war on drugs. First, we have no guarantee that fewer cops will mean less war on drugs; it could just mean more crime. Second, that kind of policy confuses issues in the public mind and makes it more difficult to be consistent. Third, that kind of second-best reasoning although correct in theory can lead to support for anything. I know people who refuse to sign their organ donor cards until they get paid, for example. Is this really a way to bring attention to the issue or is it just an excuse? My friend Tyrone is a master of these kinds of arguments which is perhaps why I try not to be too clever by half.

I’m sympathetic to Alex’s approach here. I dislike it when bad policies in one area are used to justify bad policies in others (e.g., public healthcare funding being used to justify lifestyle regulations). But we also have to think carefully about whether bad policies in other areas should be taken as variable or given. For the time being, I think the drug war – and the paramilitary police tactics it fosters – is unlikely to take a turn for the better. It might even get worse, given recent Supreme Court decisions like Hudson. In that context, I’m not inclined to give police forces more funding and then cross my fingers in the hope they’ll use it correctly.

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Judging Education Policy

A group of families is suing the state of New Jersey to force it to create a school-voucher program. This poses a conundrum for libertarians and conservatives who (a) support the concept of school vouchers, but (b) think legislatures, not courts, should set education policy. Andrew Coulson at Cato says the latter should take precedence:

The recent lawsuit about which Cato’s Neal McCluskey has been writing asks the court to create a school voucher program in New Jersey as a remedy to the state’s deficient public school system. Right ends, wrong means. Courts are for legal interpretation; legislation is for legislatures.

There’s little doubt that New Jersey is failing to live up to its constitutional promise to provide a “thorough and efficient” education. Should the court so rule, it will be up to the legislature to fix the problem, and introducing a universally accessible free education marketplace is certainly the best solution they could implement.

But it’s their job to implement it, not the court’s.

I’m not so sure. While I’m sympathetic to the separation-of-powers argument for keeping courts out of the policy-making business, that argument makes most sense when the constitution places primarily negative obligations on the legislative and executive branches – e.g., don’t pass laws restricting freedom of speech, don’t perform searches without probable cause, etc. In those cases, the courts can simply slap down a legislative or executive action, and then let those branches decide what to do instead. There’s no need for a court to create a new policy to replace the one struck down.

But in this case, New Jersey’s constitution creates a positive obligation – to provide a “thorough and efficient” education to the state’s children. Other state constitutions contain similar clauses. For instance, the Texas Constitution says that “it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” How should such a provision be enforced? If the court finds that the legislature hasn’t met its constitutional duty, a recalcitrant legislative branch can simply sit on its collective hands. In such a case, the court’s only options are (a) to allow the violation of a constitutional provision to persist indefinitely, or (b) to create a policy of its own, while allowing the legislature the option of replacing the court-ordered policy with a constitutionally acceptable policy of its own. Even if the court waits for the legislature to act, the evaluative terms of the state’s constitution (like “thorough” and “efficient”) may require the courts to pass judgment on the efficacy of the chosen policy.

There’s probably a good argument here for not including such positive duties in a constitution at all. But there they are, and they’re not getting repealed any time soon. That means the courts will inevitably be pressed into crafting policy from time to time. The usual opponents of school choice have not been shy about pushing their own policy views in the courtroom. As Neal McCluskey notes, so-called educational equity suits have been used all over the country to force states to give more funding to poor school districts, via reallocation or higher taxes. Texas’s Robin Hood plan is just one notorious example, with notably unpleasant results. If (possibly unwise) constitutional provisions put courts of law in the position of making policy, shouldn’t we at least make sure there are some good policy ideas on the table?

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Jury-Rigging

A jury in Florida recently acquitted a defendant after the judge refused to tell them what punishment he would face if convicted.

But why does a jury need to know what punishment the convicted will receive? After all, that fact is irrelevant to the question of whether the defendant actually committed the crime.

One answer is that juries should pass judgment not only on matters of fact, but also on matters of justice. Since the punishment could be out of proportion to the crime, jurors need to know the magnitude of the punishment to fulfill their duty. This is the jury nullification position – one that I generally agree with, but that is sadly out of fashion in our legal system. Jurors who confess an unwillingness to apply the law as stated by the judge are routinely dismissed during voir dire.

Setting aside jury nullification, I’ll suggest another reason that juries ought to know the likely punishment: From an efficiency standpoint, the standard of proof ought to be a function of the size of punishment.

In the current system, we have two main standards of proof: reasonable doubt in criminal cases, preponderance of the evidence in civil. (Yes, I realize there are others, such as "clear and convincing evidence," but they are much rarer.) What justifies the difference? David Friedman, in his book Law’s Order, argues that it’s related to the nature of the penalties. In civil cases, the penalty is usually a transfer of money, with no net loss to society other than the expense of enforcing the transfer. In criminal cases, the penalty is often jail time or worse, which imposes a cost on both the convicted person and the taxpaying public. As Friedman puts it, “Punishment [in criminal cases] is mostly net cost rather than transfer, so it makes sense to be a good deal more careful about imposing it.”

But in that case, why have only two commonly-used standards of proof? In general, the greater is the penalty, the greater is the cost to society of imposing it, which means we should be more careful about imposing larger criminal sanctions. It’s therefore economically sensible for jurors to regard reasonable doubt as a flexible standard – weaker when the punishment is small, stronger when the punishment is large. But they cannot accomplish the appropriate adjustment to the standard of proof when they lack the relevant information about the punishment.

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