The Drug Prisoner’s Dilemma

-- By AlexKonik - 02 Jun 2012

The Prisoner’s Dilemma illustrates both the great potential and likely pitfall of some collective action. Two men are charged with a crime. Each must choose whether to implicate his partner in a bargain with the police or remain steadfast and trust that his partner will do the same. The total punishment is least when both criminals remain silent and force the police to trial. American drug criminals face an analogous choice. Possibly the most effective way of reducing punishment for drug offenses is through coordination of prisoners, by refusing pleas for any punishment more severe than treatment. Like any coordination problem, there are obstacles to success. Prisoner’s Dilemma is deceiving because there is no dilemma; each knows that the other will plea because it always results in a lesser punishment for the individual.

Some Are Winning the War On Drugs

Drugs are big business. Illegal suppliers enjoy inflated prices from governmental supply suppression; police departments enjoy inflated budgets to combat the criminalized activity; prison contractors enjoy unprecedented prison populations that are increasingly confined, fed, and otherwise handled by private industry; citizens enjoy gainful employment through the confining business; politicians retain their offices by cleaning up the streets and being tough on crime; and recreational drug users retain their access under a porous enforcement scheme that keeps drugs eminently available. Although recent state moves considering medical marijuana hint at a new direction, drugs continue to inhabit a forbidden place in American society. With public opinion mirroring the view of the parties who profit, a policy of looser heroine punishment in favor of more treatment resources would stand little chance of being proposed or approved. Because of this, the War On Drugs likely will not end with a de jure, legislative measure.

The Courts Are Losing

However there may be a bottleneck in the War On Drugs’ support loop. While a long list of parties benefit from the War, prosecutors and courts bear a substantial cost burden and see few of its benefits. Unlike prisons and police, increased funding to these administrative departments is unattractive, invisible to the public, and tastes more of bureaucracy than justice. The lobbying interest in expanding judicial resources and DA budgets is less focused than the prison lobby and wields less influence than the public’s concern with safety. The War is leaving courts overstrained and underfunded.

The Courts Have a Weakness

Facing tough budgets and short time, the adjudication of an ever-expanding volume of drug cases survives on plea bargains. Virtually no one goes to trial and the system has come to rely on this. 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.

There Is Strength in Numbers

The mass incarceration of drug offenders is possible 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. Given the number of those charged with drug crimes, the tremendous weight burdening the judicial system, and the enormous cost of trial, prosecutors will have little choice as the gears of the machine seize. Furthermore, there is potential to bring even more claims demanding a speedy trial as the docket continues to backlog.

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.

“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.” - Thoreau

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

For all interested, I have invited John McWhorter (Columbia) and Richard Willard (former Assistant Attorney General) to debate about the War On Drugs at CLS. They will be speaking at noon on Thursday, October 18 in JG.