Almost always?

results in a lesser punishment for the individual.

In other words, this isn't a prisoner's dilemma because the payoff matrices of the players are independent. You are going to assert the possibility of collective action, not convincingly, but in any event the type of collective action difficulty you have at hand isn't a prisoner's dilemma, and your self-editing should have removed this the trope.

Courts are always overstrained and underfunded. Whether the law enforcement effort is against presently illegal drugs, or alcohol, or public drunkenness, or slaves congregating in illegal dramhouses, courts face more work than they can deal with by adjudication.

Guilty plea rates in New York City were above 90% in the 1760s, and they are at approximately the same level now, as they were in the 1860s or (as far as I know, not having studied them intensively) the 1920s. This has nothing whatever to do with the "war on drugs."

Facing limited resources, prosecutors must prioritize the cases they bring to court, and a trial costs much more than a plea. With the huge volume of the docket that relatively minor drugs crimes occupy, there exists real potential to exacerbate this adjudication bottleneck. Drug criminals, acting in concert, could put serious pressure on current enforcement policies by refusing to accept pleas that carry conditions more severe than treatment. By bringing every question to a jury that faces a stiffer plea than treatment, drug criminals will fundamentally change the equation prosecutors face when deciding who and how to prosecute. Where a preferred legislative solution offers little hope of reform, collective action could succeed in changing policy de facto.

This is nonsense. You should not have taken very long to find the problem with this logic for yourself. Defendants are not out on bail. If they choose to go to trial, the resulting delays in the system will be visited upon them directly in the form of additional incarceration. The sentence increase for each defendant is automatic, and he begins serving it immediately. Later, after conviction, which is all but certain in the vast majority of cases, the sentence will be further extended. As you point out, no lawyer could in good conscience counsel a client to serve a lengthy sentence for the supposed consequence of changing enforcement procedure. More important, no sensible defendant will agree to remain in jail for a long period, in order to remain in jail for a longer period, in order to protest against the war on drugs for your benefit.

In other words, he can simultaneously fail in his duty of zealous representation for more clients, thus turning his failure into success for some other people?

Your first draft suffered from unrealism. My comments suggested that you should do something about that by taking a closer look at the system of imprisonment as a method of delivering social stability. This draft has moved further from reality. I think the course I recommended last time is still the best route to improvement for you, if you want to write about this subject: try to get the political economy right. Clarity about why we do what we do is achievable. Whether that leads to "solutions" depends on how deep into the system of class and race control in this society you are prepared to dig.

Watching my judge's criminal calendar each Friday has been a really enlightening experience. Sentencing is a rough process, but pleas are especially painful. The judicial process of accepting a plea as a true and honest admission of guilt is meant to filter out pleas that are not in the defendant's best interest. There is a whole series of questions, all followed by "now, do you really understand? You know that you don't have to do this - are you happy with your lawyer?" The State has to read the elements of the crime and state how they are able to prove them beyond reasonable doubt. It is a big ordeal, but I don't think many pleas are refused. The judge is supposed to reject the plea if she does not think the admission is true and honest.

I don't know that there is a "right" to contract in the criminal prosecution context. I think too many of the elements of free association are absent to really call that a right. I think it's a convenience. I think the ideal solution is legislative. I get at this in the paper a bit but call it hopeless (funny, you think my proposal is hopeless. Occupy Prison isn't making big waves in the Big Easy?). Having a system of sane punishments would ease the burden on courts and ease the burden on defendants to plea out of fear.

-- AlexKonik - 28 Jun 2012

-- JaredMiller - 28 Jun 2012

I was editing my paper at the same time as Jared, and I inadvertently deleted his comment on my old version:

I like your piece, but just a note: I was having a conversation the other day with this girl who's an attorney for the Orleans Public Defenders office and I asked her if she thought plea deals should be abolished. She responded, "I can't deal with that academic BS. My clients are 17-year-old kids who are facing 40 years in prison for possession. Telling them to take their cases to trial is not an option." Your essay acknowledges this fact but doesn't answer it. How are we supposed to tell 17-year-old kids to take their chances at trial? If we can't, isn't this all just academic BS?

-- JaredMiller? - 27 Jun 2012

My revision since your comment focuses more on the analogy to PD and the point you make; it's a hard game to overcome. I propose the possibility of a single firm taking up enough cases in one location to have an impact, but that would probably break ethical rules. The mafia beats the game by changing payoffs: if you plea with the police, your family dies. There is no real analogous solution here. The 17-year old shouldn't go to trial unless he is confident that enough people will also go to make an impact (and maybe not even then). This is the entire problem. Maybe the public defenders should default to trial for all, not just the 17 year old, and serve all of their clients rather than each of their clients. Thanks for the note - that is the nagging question, but even academic BS serves a purpose.

-- AlexKonik - 27 Jun 2012

Some Are Winning the War On Drugs

The Courts Are Losing

The Courts Have a Weakness

There Is Strength in Numbers

Is There A Dilemma?

There are, of course, very large hurdles to achieving collective action. First, even after a critical mass has been reached to sufficiently impact the system, each prisoner would still enjoy a benefit by pleading while the rest cooperate. The terms of pleading will become more favorable as the system groans louder, and each prisoner will face his “dilemma.” Second, although cooperating prisoners can improve their collective fate, early actors are especially prone to severe punishment before a critical mass is reached. Additionally, there are ethical concerns for counsel. Game theory often presents scenarios expecting extra-human rationality, but a lawyer likely cannot advise his client to take actions that will knowingly enhance his sentence. One lawyer may be able to represent a sufficient number of clients to overcome the Prisoner’s Dilemma by acting as a single decision maker. He could promote the group’s collective interest rather than fall prey to individual incentives. With confidence in this lawyer, prisoners may decide to transcend their dilemma.

Conclusion

In this realm of social policy where economic interests align with public opinion and habit, we can look for a weakness in the system to force change. The sheer size of the War On Drugs creates its own vulnerability; the system cannot sustain itself if the subjugated act in resistance rather than facilitation. With a sufficient number of drug criminals forcing trial, two outcomes are likely: either prosecutorial discretion will de facto institute a policy change favoring treatment over punishment, or a de jure legislative response will be forced.

(I remain interested in working on the paper and topic)

-- JaredMiller - 27 Jun 2012

The Drug Prisoner’s Dilemma

The mass incarceration of drug offenders is successful today only because the victims are coerced into helping the system function. Not only the judge and jailor, but the prisoner and his lawyer grease the cogs of the very machine that imprisons him. In one respect at least, the indicted masses are in a position of power. Though today, through individual acquiescence, they abandon their power in a way that Thoreau feared: “a minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight.” Like he and Mario Savio called for in other contexts, real change is possible if you “put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all."

Given the number of those charged with drug crimes, the tremendous weight burdening the criminal system already today, the enormous difference in cost between a plea and a trial, and the potential to bring even more claims demanding a speedy trial as the docket continues to backlog, prosecutors will have little choice as the gears of the machine clog. If prosecutorial discretion does not de facto institute a policy change to treatment as punishment to drug crimes, a legislative response loosening punishment may be forced.

There is, of course, the very large hurdle of achieving collective action. The story of oppression is so often one of preventing coordinated action. Slavery in the United States was helped by criminalizing education, and legally retarding collective bargaining helped in class conflicts. When benefits of action are not realized until a critical mass is reached, early actors are punished severely.

Victories have come through collective action where, as here, individual incentives made predicting success dubious. Martin Luther King, Jr. led a civil rights movement where many were individually harmed beyond the benefit they could expect to personally enjoy. The NAACP Legal Defense and Education Fund orchestrated a coordinated plan of targeted litigation that has proved a successful model for other impact litigation causes since. Ideally, a coordinated group makes decisions that are best for cause; some individual grievances may be sacrificed to advance the cause, hopefully with few defections.

The War On Drugs does not contain the same obvious moral defect that abolitionists and civil rights leaders fought against. Although its enforcement is the most recent step in a long history of racial segregation, the social understanding of the underlying criminal activity (using drugs) is less offensive than punishing skin color.

In this realm of social policy where economic interests align with guiding habit and emotion, we can look for a weakness in the system to force change. The sheer size of the War On Drugs creates its own vulnerability; the system cannot sustain itself if the subjugated put their bodies upon the machine in resistance rather than lubrication.

(I remain interested in working on the paper and topic)

I find this argument a little baffling. The predicate is peculiar, to start with. Asking how California's prisons became unconstitutionally overcrowded, we could say simply that we are socially inclined to imprison more people (men, actually) than we can afford to hold in conditions we can legally impose. Why are we determined to imprison so many men? No evidence whatever is presented that we have "too many laws." You clearly think that we should not imprison so many "non-violent drug offenders," though whether we should imprison only those people who commit drug-related violence or also those who are part of the same business remains unclear. But "we imprison some criminals we should treat in other, less expensive and socially burdensome fashions," is not the same as "we have too many laws."

Nor do you seem to acknowledge that "we have too many prison construction contracts," or "we have too many people whose livings are made as guards," and "no politician has an interest in fighting the construction companies, the guards' unions, and the anti-crime populist primary challenger all at once" were unspoken alternatives to "C."

I don't understand the proposed underlying sociology, either. Most societies deal somehow in an organized fashion with the social stability issue presented by the violent tendencies of young men. Power maintains itself in part by delivering social stability, and the volatility of youth often poses direct threats to its own survival. War has always been the primary form in which societies export this potential instability. Industrial employment, whether or not accompanied by the violent discipline of slavery, is another mechanism of power's self-protection. It is imperfect, compared to war, because it doesn't winnow the population: it buys stability, as the Chinese Communist Party is currently quite elegantly demonstrating.

War of the sort that exports the mass of young men prone to violence is no longer acceptable in this society, or in most parts of the world. Our aristocracy, meanwhile, is no longer willing and able to provide full employment, and has been appropriating the social surplus so ravenously for the last generation that working class wages have been falling steadily in real terms, which had not happened for the previous three lifetimes. Statistics on imprisonment as a proportion of total population are not very useful. Relevant rates, which you don't give, are for the imprisonment of men 18 to 35 or 40, and particularly for working-class young men, particularly from the ethnic communities most heavily disfavored by the current ruling class.

Seen from the perspective of those communities, the real, and staggering, rates of imprisonment suggest that we have used several trillion dollars over the last generation to incapacitate a significant proportion of those young men who would otherwise be in the street without employment or a stake in the maintenance of the current social power structure. Profiting from the incapacitation were the capitalists who build and maintain prisons; the working-class populations that produce guards; the largely rural communities for whom prisons became necessary local industries; the gangs and other large organized criminal enterprises who used the prisons as recruiting-grounds and universities; and the politicians and law-enforcement agencies who were paid, bribed, supported, and otherwise diversely enriched by all the foregoing. Also profiting, were the middle-class, largely law-abiding, tax-paying voters who experienced long-term declines in the crime rate—emphasized by new forms of local informational media that had better ways to sell things than the "if it bleeds, it leads" formula of nearly obsolete local television broadcast news—and enhanced feelings of social well-being, as well as a less, but measurable reduction in their actual risk of violent or semi-violent victimization. They drastically overpaid for this, unless one takes into consideration their own stake in maintaining overall social stability, and particularly in keeping working-class resentment at bay, even if by these violent means.

Quite possibly, of course, your view of the systemic structure is different. I think the route to the improvement of the essay lies in explaining your approach with greater clarity.

Why Are Prisons Overcrowded?

-- By AlexKonik - 14 Feb 2012

We are defined by what we do. Our criminal legal system is defined by what it enforces – not the ideals that we teach in our law school criminal law courses, our college Political Science departments, or high school government classes, or our grade school Social Studies lessons. Historians will not look to our civics lessons, the teachings of our churches, or our presidents’ speeches to learn our society’s values. They will look to our practices.

It is with this understanding that we should look to our criminal justice system and answer: Do the results we see reflect our desires?

We learned in 2010 that prisons in California have become crowded to a degree that violates the Eighth Amendment to the US Constitution. How could this happen? What has caused our prisons to become so stunningly overcrowded?

1. There aren’t enough prisons
2. There are too many criminals
3. There are too many laws

If we take seriously the effects of and not only the ideology behind confining large segments of our population, we must acknowledge that the answer is “c.”

We are doing all money can by to address “a.” The number of prisons is on the rise, with the vast majority of the growth coming in the form of privately owned and operated prisons. The number of prisons under court order to limit population fell 70% from 2000 to 2005; it seems that Plata-type pleas are being heard. If “a” is the problem, a few more years of vigorous prison growth should ease our minds. In fact, the only prison metrics that fell from 2000 to 2005 are medium security and community-based public facilities.

In 2010 there were 0.6% fewer people in prison than in 2009, the first annual fall in prison population since 1972. According to the Department of Justice, this was mostly the result of a decrease in state prison admissions. It was not due to an increase in release rates, and it certainly wasn’t helped by the increase in the federal prison population. This small drop in population is certainly interesting, but focusing on it misses the larger trend that 1 in 201 American residents are in prison, with the average time served at about two years.

We recognize that some people must be in prison because they are very violent and a continual danger to their communities; or they have done something very wrong that deserves punishment; or maybe we need to appear tough on crime; or we believe that prison is the best place to reform a violent mind. Our society’s seldom questioned ideology has us believe that we must deprive some people of liberty, even if we are hesitant to do so. We must understand that it is a necessary part of society; those people are sick. Once we have convinced ourselves of this, it is best not to think of it and just fund the private companies who build jails to hold our outcasts.

This ideological belief is useful; we cannot have murders roaming the street looking to kill again. Our justifications work well to protect ourselves from violent crimes, and to a lesser extent property crimes.

But violent and property crime rates have been steadily falling since 1992 while incarceration rates have been on the rise (10% increase from 2000 to 2005).

What type of behavior is being punished by prison sentences such that 1 in 201 American residents are held captive in prison (this excludes jail and other corrections)? And once we know, what story can we tell ourselves to approve of our own actions, to approve of what we fund and not only the great ideology we would like attributed to ourselves?

Our prison population has been exploding due to penalty enhancements like three-strikes and mandatory minimum rules, a growth in criminal offenses in the U.S. Code, an increase in the rate of juveniles prosecuted as adults, and an overwhelming focus on non-violent drug offenders.

Nonviolent drug offenses make up 51% of the federal prison population and 18% of state populations, about 340,000 residents, or 1 in 900 US residents. These are the reasons that the U.S. boasts the highest incarceration rate in the world, and continues its growth as violent crime rates fall.

When we pay a tax, we do not think of the prisons we fund. But this is what we do, whether or not we can justify an ideology behind it.

-- AlexKonik - 14 Feb 2012