(The Return of) Ignatz, by Sam Heldman

Tuesday, September 10, 2002

A reader who fancies himself to be my antagonist sent me this AP story about falling crime rates. The story quotes experts who attribute the drop to (a) improvements in the economy – i.e., more jobs – during the Clinton era; and (b) tougher sentencing laws. ("Specialists said the decade-long decrease in violent results mainly from the strong economy in the 1990s and tougher sentencing laws"). My correspondent – focusing, I think, on the "tougher sentencing laws" and thinking that he's a mindreader – says to me, "I seriously doubt this fits into your little world view. Quick, think of some other explanation....".

So I'm taking the bait.

Yes, of course tougher sentencing laws have some tendency to drive down crime rates. This happens because some would-be criminals are in jail, and because some people are rational actors whose decision as to whether to do a crime or not is rationally affected by their understanding as to how swift, how sure, and how long their punishment would be. Does this mean that criminal punishment should be as swift and sure and long as we can possibly make it, to reduce crime even further? Of course not. The reason is that we are dealing with human lives here. We as a society – or, let me speak for myself here, I as me – want to avoid some seriously bad effects that would come from making criminal punishment too swift, sure, and severe. I want to avoid railroaded false convictions, and I want to avoid ruining people's lives by having them rot in prison for periods that are disproportionate to the seriousness of their offenses. And I know that some people just aren't rational actors, who aren't motivated by a rational economic calculus in their decisionmaking, so the length of the punishment won't deter them.

But let's take this insight – that tougher punishments do deter some law-breaking – and apply it to a group that is a bunch of rational economic actors who are motivated by a rational economic calculus in their decisionmaking. That is: FOR-PROFIT CORPORATIONS. If we want (say) to have a labor law that actually deters labor-law violations, let's take my nagging correspondent's insight and make the punishments sure, swift, and severe. As it stands, the current system is like every conservative politician's caricature of the criminal justice system: it's slow (labor law cases take literally years to be decided, by the NLRB's administrative law system, then the NLRB itself, and then a U.S. Court of Appeals, before any remedy can be enforced); conviction of the guilty is by no means assured because of underfunded prosecutors, legal technicalities that can cause dismissal of the cases, and some judges who are soft on the defendants; and punishments are not enough to deter any future lawbreaking. Indeed, the punishments in labor law literally aren't even a slap on the wrist: the NLRB's ONLY monetary remedies are compensatory, not punitive. If we want the labor-law "crime" rate to go down, those are the things we need to fix: make actual punishments for labor-law violations, and make the system faster, and make it more certain that the wrongdoers will be prosecuted and convicted. If it's good enough for a guy with a smidgen of crack in his pocket, it's good enough for corporate America.

Interestingly, the U.S. Supreme Court has before it, this Term, a couple of cases that will test whether corporations get treated better than petty criminals along these lines. First, the Court has from California a couple of cases about whether that State's "three strikes" law is cruel and unusual punishment in violation of the Eighth Amendment. In one of the cases under review, the guy got 50 years for stealing a hundred dollars (or so) worth of videotapes. In another, the guy got 25 years for stealing three golf clubs. (These are the Ewing and Andrade cases, described on this page). Meanwhile, the Court is also going to be reviewing whether a large pop of punitive damages imposed on State Farm was unconstitutional. (scroll down to the description of the State Farm case on this page). If – as some experts predict – State Farm wins and the losers in California lose, then the Court had better give a pretty good explanation of why corporations seem to fare better in this sort of thing (i.e., in getting the Supreme Court to overturn the severe punishments imposed on them) than people do.

posted by sam 6:46 AM 0 comments


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