It’s tempting to simply aver that Jason Brennan and Chris W. Surprenant are right about everything except for the Drug War and leave it at that. But that would leave me nearly a thousand words short of what I agreed to produce, and like any self-respecting libertarian, I believe in contracts. So I will first explain my caveat about the Drug War and then propose that Jason and Chris consider whether the judiciary deserves even more blame for mass incarceration than their account appears to provide.
Beginning their post with an agreeable “we-a-culpa” tone, Jason and Chris argue that progressives, conservatives, and libertarians are all partly right and partly wrong in their takes on mass incarceration. Thus, progressives are right that the criminal justice system is systemically racist, but they can’t explain why the system’s “degree of harshness and punitiveness went on a strong upward trend” at the same time that overt racism “went on a strong downward trend.” Similarly, conservatives are right that social factors such as single-parent households partly explain crime trends, but they falter when it comes to rationalizing the imposition of increasingly harsh punishments in a system where crime rates have been falling for decades. As for libertarians, they are partly right in blaming the War on Drugs, but even without prohibition, we would still have a much higher rate of incarceration than most other countries. Thus, say Jason and Chris, “eliminating the Drug War wouldn’t solve the problem on its own” because there are “too many other crimes not connected, even indirectly” to that policy.
I do not propose to wade into the question of just how criminogenic the Drug War has been (extremely), nor will I discuss the rampant corruption it engenders, nor its immiserating effect on people in developing nations. My colleagues have addressed those issues elsewhere. Instead, I will focus on an aspect of the Drug War that makes it qualitatively different from most other criminal justice pathologies.
Unlike racism, which Americans almost uniformly reject and are doing our best to root out, and unlike misguided social policies that systematically shortchange and exploit the needy (looking at you, failed public schools), drug prohibition represents a conscious decision to embrace a morally indefensible public policy. In that sense, the Drug War is not simply an example of the state being misguided or inept; instead, like slavery, Jim Crow, and eugenics, it is an example of the state being evil. And that makes it impossible for people like me, Jason, and Chris (if I may presume to speak for them) to defend the system, even if we believe it has many good features and good people working within it. Simply put, a system that does substantial amounts of unjustifiable violence to peaceful citizens has no plausible claim to their confidence or support.
And this brings us to the thrust of my argument, which is that the powerful economic incentives Jason and Chris so persuasively catalog should not, by themselves, have been sufficient to trigger mass incarceration. Instead, that required two distinct acts of judicial abdication involving, first, the government’s ability to criminalize conduct, and second, its ability to criminalize people.
Among the most important questions in political theory is whether there are any limits on the power of democratic majorities to outlaw particular conduct, and if so, what those limits are. After more than two hundred years of constitutional adjudication, the Supreme Court’s response can best be described as a skeptical shrug. Ban books? Generally not. Punish flag burning? Not right now, but check back in a couple of terms. Lock people up for growing a relatively harmless plant that stimulates the appetite, relieves anxiety, and helps many veterans with PTSD sleep at night? Well of course you can!
As I have argued, along with Roger Pilon, Randy Barnett, Timothy Sandefur, and others, the Supreme Court has largely abdicated its duty to protect Americans from arbitrary government power, allowing legislatures to criminalize vast swaths of non-wrongful conduct—from betting on basketball to wearing saggy pants—on a whim. Combine that dereliction with the public-choice dynamics that Jason and Chris describe, and you end up with a situation where nearly anyone may plausibly be accused of some criminal infraction. Think you’re safe from prosecution just because you haven’t knowingly broken any laws? Think again.
But even with rampant overcriminalization, there was still one missing ingredient—a key constitutional cop-out before America could become the undisputed “lock-em-up” champion of the world. And what was this “killer app” for mass incarceration? It was to morph the expensive and inefficient mechanism for adjudicating criminal charges prescribed by the Constitution into a sleeker, more efficient process better suited to modern carceral appetites. We refer to that new process euphemistically as “plea bargaining,” but it is far more akin to the brutal system of judicially sanctioned torture that various European regimes used during the middle of the last millennium to avoid the inconvenience of unscripted acquittals.
I have written extensively on the subject of coercive plea bargaining, and I will not replicate the argument here. Suffice it to say that American prosecutors are lavishly equipped with various tools they can use to induce defendants to waive their constitutional right to require the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury and simply condemn themselves instead. Indeed, so effective have prosecutors become in employing those levers that 95 percent of all criminal convictions today are obtained through guilty pleas, and fewer than two percent of all federal prosecutions go to a trial. You might well ask what on earth would persuade a defendant to trade the possibility of acquittal and freedom for the certainty of conviction and punishment. The answer is pressure, and lots of it. What kind of pressure? Well, the Supreme Court has found nothing wrong with threatening to bring new charges carrying a life sentence in order to motivate defendant to take a five-year plea offer, and various lower courts have held that prosecutors may threaten to indict a defendant’s family members for the purpose of exerting plea leverage—an abominable practice that any experienced criminal defense attorney will tell you is perfectly routine in our system.
From an economic standpoint, there is of course a perfectly understandable rationale for this barbarism. Prosecutors must demonstrate productivity just like anyone else, and guilty pleas are a far more efficient way to rack up convictions than trials. As Professor Darryl K. Brown explains in his masterful article “The Perverse Effects of Efficiency in Criminal Process,” when the cost of a particular good—whether it be cars, corn, or convictions—comes down, consumption will rise. And if the process of convicting alleged lawbreakers becomes no more difficult than shooting fish in a barrel, then you can count on having a nearly inexhaustible supply of prisoners. Which, not coincidentally, is precisely what we do have.