Sorry I'm late.
I had to stop by the Wax Museum again and give the finger to FDR.
We know Al-Qaeda, Zawahiri is supporting the opposition in Syria.
Are we supporting Al-Qaeda in Syria?
It's a proud day for America and by God we've kicked Vietnam syndrome once and for all.
Thank you very, very much.
I say it, I say it again.
You've been had.
You've been took.
You've been hoodwinked.
These witnesses are trying to simply deny things that just about everybody else accepts as fact.
He came, he saw us, he died.
We ain't killing they army, but we killing them.
We be on CNN like Say Our Name been saying, say it three times.
The meeting of the largest armies in the history of the world.
Then there's going to be an invasion.
All right, you guys.
Introducing John Pfaff.
He is a professor of law at Fordham Law School and he's the author of Locked In.
You can follow him on Twitter at John F Pfaff and that's P-F-A-F-F for Pfaff there.
Welcome to the show.
How are you doing?
Good, thanks.
How are you?
I'm doing real good.
Listen, I really appreciate the work you've done here and coming on the show to talk with us about this.
It's an article in The Appeal, the appeal.org, the perverse incentives of punishment.
It's funny, I'm basically an anti-government extremist ideologue.
A friend of mine one time accused me of just hating all people who are government employees and assuming that all government employees are evil people and this kind of thing.
But so my response to that of course was, yeah, but that's not right at all.
Incentives matter.
This is why we have checks and balances and separations of power.
Even with George Washington himself, we need a Congress that has the power to remove him.
This kind of deal, it's realistic.
It's not ideological.
It's humanity.
We're either fallen angels or we're monkeys.
Whichever means that none of us can be trusted with power.
Not really.
I like the way you take this kind of criminologist economist's take on how do we set up our court system?
I won't call it a criminal justice system because it's not.
But how do we set up our prosecution system under the governments of the United States?
And in what ways do they serve justice and in what ways do they not?
Ought to be a perfectly fair line of inquiry and it's one that's not taken up nearly enough.
So one more thing before I start asking you things, which is to bring up that your article begins with this guy, Todd Entrekin, who is a sheriff of a small Alabama county who got busted basically embezzling, although they say technically it was legal.
He stole $750,000 that was supposed to go to feeding the inmates in his county jail and instead he bought himself a beach house.
Well, he got primaried out of his seat yesterday.
So there's a little bit of success for little d democracy in providing checks and balances for abuses of power, although a pretty rare exception.
But he did lose his primary last night, it's worth mentioning.
I guess let's start off a little bit more about that case, can you?
Sure.
So it's not really embezzlement and unfortunately what he did is more likely to be legal than one would expect.
So the law that operates in Alabama is that sheriffs are responsible for paying for the food of the people in their jails eat.
And then the state gives them money to do that.
And then the law is weirdly written in a way that says that whatever they don't spend, they get to keep.
And some sheriffs interpret that as meaning that they can keep it to spend elsewhere as a sheriff, right, on patrol cars or ammunition or something else.
Other sheriffs interpret it as meaning they get to keep whatever they don't spend for themselves however they want to.
And Trankin was one of these ones who believed he could keep it for himself.
We actually don't know how much he kept for himself because the state law requires they report up to $250,000, but nothing beyond that.
So we know he took at least $750,000 because for three years he maximized, he hit that maximum reporting amount.
And while doing this, while taking this money out of the jail, he was allegedly serving the people in his jail food that was labeled like not fit for, literally on the side was stamped not fit for human consumption.
And their ACU had fired other lawsuits in Alabama over inmates who were losing weight, precipitously losing weight in jail as the sheriff siphoned money off.
But here's what makes things really complicated.
One is that if the budget comes in under, the sheriff is personally liable for that money too, right?
So if he needs to spend a million dollars on food and the state only gives him $750,000, he has to pony up the extra $250,000 to pay for it.
So what's interesting is that the reason why this law that exists from like the 1910s when sheriffs lived in the jails and their wives cooked the food, the reason why they can't get rid of this law isn't because the sheriffs like it.
It's actually because the county commissioners like it because it keeps the food portion of jail off their budget.
And so there've been efforts to fix this law at the state level.
It's not like the state doesn't know this law is out there, it's not a problem, but it's the county commissioners who keep thwarting reform efforts.
Right.
Well, so why don't they just pass a new state law saying that it'll come out of the general fund at the state level then?
That's the law they keep trying to pass, but the county commissioners are very good at lobbying the state legislature not to pass that law.
Well, wait, but what do they care?
Because that would bypass their pockets anyway, right?
Oh, the state, right.
So I guess if the state were willing to pay for it directly, except historically speaking, jails are paid for by the county, prisons are paid for by the state.
There's no logical reason for this.
It actually creates other bigger incentive problems.
But that's just sort of historically how it's been done.
And so my sense is that the proposed fix is to make the counties pay for it, maybe with some state assistance, but maybe not complete state assistance.
And so the state will pay for it, but the county would be on the hook for any sort of overruns and the county just don't want to absorb the overruns.
They'd rather push it onto the sheriffs themselves.
Right.
So this is something that is so interesting.
In the libertarian movement, I actually know Jeff Tucker for one example, like a name by name.
I'm sure he's proud to admit this now.
He said this, I think on the radio show before, that in the 1990s, he wrote things saying we should privatize the prisons because it'll save money.
Because everybody knows that even a contractor, it's not quite the free market, but a contractor is better than a socialist enterprise like a straight government agency here.
And then now he realizes that what a horrible mistake that was.
Because then you end up combining the private profit motive of the companies that run the prisons with the monopoly government power to still kidnap people and lock them in these cages.
And then these companies aren't even ashamed at all.
Business is business.
So they lobby like hell to keep pot illegal, to keep the drinking age high, to do whatever they can to increase penalties for their own bottom line.
And if it's at the expense of the rest of their neighbors in the state where they live, including even their own kids, and they change their own state into a police state, oh well, whatever, because in their short-term interest, it makes sense for their company to do this and to lobby this way.
And I think, really, pretty much everybody understands this now.
It was a scandal, even.
Obama changed some rules to try to move away from private prisons on the federal level and that kind of thing.
But it's recognized as being at least somewhat problematic in the states.
I don't know how much effort is being made at reform here, whatever.
But you really take on this whole attitude in your article, not to defend the privatization of prisons, but to say, hey, guess what?
Government probation officers make money, too.
Prison guards make money, too.
Government judges have jabs.
And if they weren't judges sentencing people to prison, they might have to go get a real job.
So all of these people, it's about money for them, too.
And we somehow make this mistake, because we're taught in our government school classrooms, that government employees don't care about money.
Government employees only care about the national interest, only care about the county, only care about the people, and don't care about themselves.
And you're saying that, yeah, actually, that's really not right.
They care about themselves and they care about protecting their own bureaucracies, as you just said with the county commissioner's court there.
It's true.
But ironically, I'm not going to actually, as the non-libertarian, try to encourage a libertarian to embrace private prisons more.
The real problem with private prisons isn't so much the profit motive as the incentives we give them.
Write a different contract, and the story changes.
The problem is, is that we pay private prisons per prisoner per day.
That's the contract they get.
And so that encourages them to maximize body count.
It encourages them to cut staffing and programming, because that's where their profit comes from.
And in fact, cutting programming kind of pays off twice, because it saves money the first time the guy comes in, and then increases the risk of reoffending, and therefore the chance of the person coming back.
Because we're paying them to maximize body count.
If we pay them differently, they might act differently.
And so there's a growing, very small, but growing push to try to pay prisons based on recidivism, not based on body count.
A chunk of the pay will come from who doesn't come back.
So for every year, the person who's in your prison stays out of prison, you get some sort of payment.
Australia just opened a women's prison run by Sodexo, the big food and other things conglomerate, with this kind of contract.
England, I believe, has done something along these lines.
In the United States, Pennsylvania recently rewrote all their halfway house contracts to include recidivism benchmarks.
If you beat the benchmark, you get a bonus.
If you fall below the benchmark for too many years in a row, your contract gets cancelled.
And so a big part of this is, like you said, the incentives of public and private actors are roughly the same.
So the question has to be, how do we actually change those incentives?
Muckerman I want to mention one thing here.
Shane Bauer, who's just humiliated himself on being a pro-Syria war monger lately, did this great undercover investigative report as a prison guard in a private prison, and talked about how if they provide health care to the prisoners at all, they're just losing money on every case.
Anybody goes to the doctor ever, and the incentive is not, oh, well, you get a bonus for being so responsible that you're taking good care of your prisoners.
It just comes straight out of their profit at the end of the year, out of their bottom line.
And so the prisoners just die.
They just don't treat them.
Muckerman Right.
And if you paid on, say, a recidivism contract, people who come out sicker are more likely to run into trouble upon release.
And so that would then encourage public or private prisons, if you could build these incentives, to actually focus on treatment and get them out in a way that encourages them to hit the ground running.
Gardner That's interesting.
And so when it comes to recidivism, I guess it really is the question, too, about what laws are being enforced here.
I mean, if people are in jail for possession of drugs, they're not really criminals anyway, right?
Are we talking about when it comes to recidivism, are we talking about armed robbers and actual criminals, gangsters and, you know, embezzlers or what?
Muckerman So in terms of the people who are actually in prison, whether first time or repeat, only about 15% are in for drugs at the state level, and about 53% are in for violence, right?
Now, violence is a very murky term.
There's lots of, you know, if you run by, in many states, if you run by someone and grab their necklace off them, that's a violent crime.
In some states, if you so much as break into a house, even if no one is home, that's viewed as a violent crime, even if you're unarmed.
But, you know, about an eighth of all people in prison are there for murder.
About an eighth of all people are there for rape or sexual assault.
Many of them are there for fairly serious violent offenses.
And certainly almost everyone serving a long sentence is there for a serious violent crime.
There are very few people, you know, you hear about the 60 years for a low level drug case, that sometimes happens at the federal level, and also have a small number of states and almost never happens at the state level.
It still doesn't mean they should be there.
Prison is not a good way to deter crime.
Longer sentences don't prevent crime up front.
And the experience of prison tends to increase the risk of reoffending upon release, to the point it almost perfectly offsets whatever sort of incapacitation effect that you have.
So it's not a good policy tool.
But our prisons are not chock full of these low level nonviolent drug offenders.
Our jails are, not our prisons.
So our jails probably have a higher concentration of low level nonviolent types of crimes.
But our data on jails is terrible.
I mean, just terrible.
Well, and you know, when you say only 15%, you're still talking about hundreds of thousands of people.
It comes to about 250,000 people, which is nothing to look at.
Although again, two things.
One is that many of them are perhaps higher levels of drugs for drugs that is not marijuana.
Only about 1% of all people are in for marijuana.
Or maybe they're trading in it, not just consuming it.
But still, that's only criminal if you outlaw it.
It's not criminal to sell someone something that they want to buy in any other sense, you know, other than somebody passed a law against it.
No, no, that's very true.
What makes it complicated is that we don't know what they were actually arrested for, or what they could have been prosecuted for.
So we don't know how many people in prison on a drug charge were arrested for a violent crime and drugs.
And then part of the plea bargain was we'll drop the violent charge in exchange for pleading guilty to the drug offense.
Man, I still presume I'm innocent.
I see your point.
But it seems like, yeah, oh, well, I mean, if I'm the governor, I'm just going to pardon them all.
And if the DAs only prosecuted them for possession instead of a violent act that they committed, that's their fault.
But anyway, but yeah, I mean, and this is the deal of it is, you know, obviously a lot of the violence has to do with the criminal drug trade in the first place, too, right?
So if one, people could just buy cocaine at Walgreens, and two, people who do commit violent crimes could actually learn a thing or two about how to run their own business or how to learn a technical skill or something while they're in prison, as you said, incentivize the state or the private prison to lower that recidivism rate, give these people a way to stay out of prison, then we'd see these numbers just crash through the floor, right?
It's like it's better economic opportunity of any sort, which certainly leads to less violence.
Although, you know, there's a after after you buy my book, the next book they should buy is Ghetto Cyber Giuliovi, where she spends a year with an L.A. homicide unit, sort of observing the nature of urban homicide, and one thing she kind of points out is that a lot of the causes of violence, even if the official cause of the murder was a drug dispute, the underlying cause of violence is often much deeper and more profound, and drugs is kind of, they happen to be fighting over drugs because drugs are there, but if you take the drugs away and don't solve the underlying economic and social instability, the violence won't drop nearly as much as people hope.
Right.
But if you do provide, you know, one of the better pathways out of crime is a job, right?
So better economic opportunity of any sort would definitely have a serious positive impact.
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All right, thanks.
All right.
Now, so in terms of, you know, back to the cities and the states and the courts here and their incentives, private prisons aside, because it's not all states have these private prisons that were popular in the 90s, right?
In fact, only 8% of all prisoners nationwide are held in a private prison.
So it's almost, this is a red herring, right?
It's important, but it obscures the rest of the issue.
And so there's one that sticks out in here to me that is so interesting and it should be so obvious, right?
And again, you didn't have to be a libertarian.
You could be a liberal or conservative or a nothing or anybody could just recognize what a problem this could be where you talk about how, I don't know if it's in whatever percent of states where if it's a misdemeanor and the people are only going to the county lockup for a while, then that's on the county to pay.
But if they prosecute and convict people of felonies, well, then that comes out of the state budget when they go to the state pen.
And so there's this huge incentive for prosecutors to trump up charges up to the level of a felony purely for their own bureaucratic pocketbook interests on the local level.
Yeah, I mean, exactly.
And we're talking about destroying people's lives, locking them in cages like animals away from their families, away from their jobs.
Yep.
And even if the prosecutors aren't consciously thinking about it, the fact that it's not in their budget means they're not thinking about these costs at all.
So it's just free for them.
And in fact, it's politically safer because they look tougher on crime.
And even even today, that remains, you know, it avoids that one bad sort of shocking case that comes back to bite you at the election.
And I've heard colleagues tell me that they've talked to county elected judges who say that, you know, on the margin, they actually consciously think about this, because if they send too many people to jail and drive up the county budget at their next retention election, the county machine might not support them.
And so I think it's a very real issue.
And I think one of the more striking facts is that we talk about how prison populations have dropped since since 2010 nationwide, but it's not really a nationwide phenomenon.
Over 60 percent of that decline is just the state of California.
And California is the only state that has really actually tried haltingly with a lot of problems, but still the only state that's actually really tried to address this exact problem laid out, that they're trying to force the counties to pay more of the cost of locking up nonviolent people convicted of nonviolent crimes.
Well, I think they should make the district attorney and the assistant district attorneys pay out of their own pockets.
And they have to, if you really want this guy locked up, you pay to lock him up and see how committed they are to this stuff.
One proposal that no one's adopted, but I've seen more and more reformers starting to talk about a few, but more than before, is the idea of basically cap and trade for prison beds, that the state will tell each county you have X number of prison years that you're allowed to use from the state system per year.
And if you want to be more punitive than that, you're going to have to find some other county to sell you their bed years.
And if you decide that you don't want to be that harsh, you'd rather spend money somewhere else, then you can sell your bed years to another county and really, like you said, basically make the county have to really think about this.
This whole discussion makes such a mockery out of even the pretension that there's such a thing as a rule of law, as opposed to a rule of men.
And it's also, I think that it drives home a point that I think is lost, which is I avoid using the word defrase criminal justice system, not necessarily the debate about justice, although that's a fair debate to have, but about the use of the word system, because it's not a system.
It's actually an incredibly convoluted set of systems, right?
You have 18,000 police departments who respond to a police commissioner who responds to a city elected mayor.
You have another number of thousands of sheriff's departments who respond to a county elected sheriff.
You have a prosecutor who generally enforces crimes in the city, but he's elected by the county.
You have jails paid for by the county, probation paid for by the county, prisons paid for by the state, right?
You have also the federal money flowing in across things in weird ways.
And you have a pro board that's appointed by the governor.
And the idea that it's like a coherent system is crazy, right?
They oftentimes don't work together and fight each other, and the police want to do one thing, and the DA wants to do something else, and the police are responding to city politics, and the DA is responding to more suburban county politics, and they're just not working together.
Douglass.
Well, which is, that's how it's supposed to be, right?
Is that ambition is supposed to be made to counteract ambition.
In the words of James Madison, we can't trust any of these guys, and if we can turn them, make them enemies of each other, maybe they'll leave us alone a little bit.
Or they'll, the theory supposedly, right, is that the judge will, you know, the greatest exercise of the judge's power will be to tell the DA no, rather than to conspire with the DA to do a thing to somebody, right?
That they're supposed to check each other and prevent each other from doing the wrong thing.
But it sounds like what happens is they're also separate the way you say, but then they compromise by just taking it out on the rest of us.
Well, the other problem too is, a big part of the problem is us, right?
We're an incredibly punitive country, right?
I mean, I don't mean like our leaders are punitive.
I mean, we as a public tend to embrace punitive approaches.
And so, you know, politician, we elect, we're the only country in the world that elects its prosecutors.
If we're not the only country in the world, we're one of the only countries that elects its judges in many states.
And they're facing electorates who don't really pay close attention, but will vote them out, or at least they're afraid we'll vote them out, if they have one case where they could have been tougher, but weren't, right?
You know, when you think about it, if you're too, if you're not harsh enough, if you don't send someone to prison long enough, there's some chance that person will re-offend.
And when that person re-offends, your opponent at the next election can point to that grieving family that was victimized and say, you could have stopped this, but you didn't.
If you're too harsh, that means someone's in prison longer than they need to be, but you can't show in an election nearly so clearly that this person would not have offended had he been let out earlier, right?
You can show that with some complicated risk assessment model, but, you know, one, the tough on crime people have a grieving widow and the smarter on crime people have a regression, right?
We're always going to lose in that situation.
And we're going to lose because the American public as a public, not just the people we elect, but the reason why we elect them is very unforgiving of mistakes.
You know, there was a big push recently in Brooklyn, where I live, to use bail less.
And our DA got up and he said at a town meeting, he said, look, I will demand money bail less often, but I need you here and now to promise me that when that one case goes south, I mean, that one guy I could have demanded bail for, but I didn't.
And it was a low level case, but he ends up committing a murder.
When that happens, that you won't turn on me based on that one case, right?
Because that's what they're all afraid of.
And they're afraid of it because that's how we tend to vote.
Yeah.
Well, and the thing is too, about all of this basically being a government program rather than a business is the supply and demand pressures don't really apply.
So the murder rate, for example, and overall crime rates have plummeted over the last 25, 30 years.
And yet we still have all the excess assistant district attorneys from the height of the 1990s, you know, crime scare.
And so you have all these ADAs who don't want to have to get real jobs.
And so they lock their neighbors in cages for things that they never would have before, wouldn't have been prosecuted before.
Yeah.
I mean, the numbers are pretty striking.
So we don't have a lot of data on prosecutors, but between around the early 1970s to 1990, as crime was going way up, we hired about three, the number of, the number of like assistant DAs grew by about 3000 from 17,000 to 20,000 from 1990 to about 2010.
As crime went down, we hired an additional 10,000 ADAs.
So from 20,000 to 30,000.
So crime goes up at 3000, crime goes down at 10,000.
And no, we don't have good measures of DA productivity, but every number sort of proxy I can think of tells the same story, which is that in a given ADA today is no more punitive or no more aggressive.
It isn't doing any processing, any more cases today than an ADA in 1990.
We just have 10,000 more of them.
And the fact is we send 600,000 people, 700,000 people are admitted to prison every year.
We arrest about 10 or 11 million.
If you need to prosecute someone, there's always going to be someone you can prosecute.
Yeah.
And you know, for people who are worried that when I become emperor and lay off all these DAs that it's going to be bad for the unemployment rate, I would point out that they aren't producing any wealth at all.
And once I make them get real jobs, then we'll all be richer and it'll be fine.
Yeah.
I mean, I'm less anarchic than that, but, but, you know, I think part of the problem we do have is that it is very hard to cut staffing as well as expanding staffing, right?
You know, New York state between 1999 and the 2000s, we shed about 25,000 prisoners is the longest sustained decarceration that the United States has seen.
Yet by the end of that, you know, we're actually spending more, the budget was bigger for guard wages than when the decline started, right?
Because even as the prison population shrank, the staffing didn't, right?
They kept these prisons open, half full, right?
And so there is, I think in this low prime period that we still are in, there is definitely room to cut back on staffing, but it's very, very hard.
And inarguably, you know, I think that much of the, one reason why I often push back so hard against the private prison narrative is that probably some of the most powerful actors in fighting reform are correctional officer unions and they, public correctional officer unions, and they are sort of completely off the radar in this discussion.
And they're, they're very powerful and they lobby hard to push back against, against reforms.
Well, yeah.
So, I mean, first of all, like you were saying before about just the public in general and the political incentives to be tough.
And, you know, like you were saying, if they want to be softer on bail and they're worried about somebody running a Willie Horton ad about them for the next election and that kind of thing.
Well, same thing if they start laying off a bunch of unneeded DAs.
It's better to turn Texas into a police state where innocent people go to jail for nothing, for things that are barely offenses, but definitely not crimes, than it is to face the possibility of election after shepherding through the Texas Senate, a law that says we're getting rid of a lot of these unnecessary DAs.
We don't need them and they need to get real jobs digging ditches or something useful.
And so, unelect me next time.
Right?
We don't, nobody's ever going to do that.
Right?
And then especially like you say, nevermind, like the general public mom and dad over the kitchen table saying, oh, I'm afraid now.
But then you have all these government employee unions.
So, talk more about that, please, about just how much power and influence they have and what a conflict of interest this is.
Yeah.
I mean, so, you know, guard, so, you know, as a general matter, you know, rural areas are, are overrepresented in state legislatures.
It's just, it's one of these inevitable nature of electoral math and, and prisons tend to be located in rural areas.
So these guard unions, you know, it may, it's not, it's actually not so true in Texas, but in places like New York, you know, the prison oftentimes is the only major industry in, in, in that part of the state.
And so, you know, these, the jobs are very important and rural areas have an outsized voice in the legislature and they, they push really hard to, to, to thwart reform.
I mean, like, you know, the head of the criminal justice committee for the New York state Senate is a state senator that has Elmira, which is the second largest prison in the state or third largest prison in the state, like in his district.
Right.
So obviously he's not going to want to adopt the policy that's going to cause his constituents to lose jobs.
And unions know this and they're very effective at lobbying.
Also it's less of a union, but state level district attorney associations are very effective at this too.
They are very, very good at quietly killing off laws, reform efforts.
And in fact, they do this, this kind of remarkable two-step where they say, look, don't blame us for being harsh.
We're just enforcing the law that the legislature has passed.
And then they quietly go to the state Capitol and lobby to get these tough laws.
And they then claim that they are just enforcing because that's their job.
Right.
And so they serve past responsibilities of the legislature, but they are the ones who oftentimes frequently successfully lobby the legislature for those tougher, those tougher regulations.
Get it, everybody.
Your constitutional Republic is a racket.
That's all it is.
The judges, the cops, and the DAs and the legislator, legislators, they are the conspiracy against us.
They are the criminals.
And this is all at our expense.
They take all our money and they keep themselves employed, but they don't have to work.
All they have to do is sit around locking people up while everybody else has to have a real job to pay their way.
Or what am I missing?
If I said, hey, let me be your security force.
And then you didn't agree to that.
And then I said, I'm your security force anyway.
And you're going to pay me anyway.
Then I would be the criminal and you would be my victim.
Right.
But I mean, I wouldn't personally, I, there's a, there's a lot that's malformed the criminal justice system, but I'm by no means a police or prison abolitionist right there that, no enforcement play there.
You know, we overstate the centrality, the need for law enforcement to regulate behavior, but at the same time it's absence would all know it, it plays an important and essential role.
It has expanded perhaps larger than it needs to be.
It's incentives are a giant swirling mess.
But I'm not a level of our, I personally don't think the cops is actual criminals versus us.
Right.
There are certainly plenty of hugely problematic behavior amongst police officers.
I, it's not the bad Apple theory, right.
It's much more structural in terms of who we recruit and how we train them and, and the incentives they face in terms of what they're liable for and what they're not.
Right.
So I, I, you don't want it, you don't want to understate sort of the amount of sort of malformed incentives that run through this.
But I'm also, I, I'm not at the level of sort of an abolitionist either.
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Well, I mean, that's the whole thing, right?
Someone on Twitter was saying, you know, talk about something that young people today wouldn't understand.
And my response was, there used to be this phrase, conflict of interest.
That used to be a thing.
It meant, you know, at least the appearance of possible corruption and that decisions are being made for something other than the best reasons.
You know, like maybe just for the interests of the people involved in it.
And that's the whole thing about it.
Like you said, these DAs lobby for the laws that then they claim that, hey, we're only enforcing them.
And we're talking, again, about kidnapping people and locking them in cages.
So that's pretty bad.
Especially when you're talking about, you know, like when I was a kid, and I'm sure this is probably true, too, but it was just sort of an old wives' tale that Anheuser-Busch is behind all the lobbying to keep pot illegal because they have the most to lose.
Obvious enough, whatever, people can Google it.
I don't know if that's really true, but I'm just saying that was kind of what they said.
And that's a huge example of this conflict of interest.
But then, like you're saying, the cops, the prison guards, the DAs, the judges themselves, they're all in on this.
They all have their own reasons for keeping, for example, drugs illegal, rather than the public interest at all.
It's true.
But at the same time, part of the problem is the fact that the public itself has a hard time.
They don't pay close attention, and they're easily swayed by shocking stories.
And so, you know, in the end, the legislature can decriminalize whatever it wants to decriminalize.
They can fix these things however they want to fix them.
They've just been slow or unwilling to actually do that.
Douglass.
Okay.
So, I know you're not as crazy as I am when it comes to abolishing all these things.
If I was I Dream of Jeannie, I'd just get rid of this whole thing.
If I had it, I Dream of Jeannie.
But so, what about this?
What if government employees are stripped of the right to vote?
It's not really a right, anyway.
It's a civil arrangement privilege.
Why should government employees, our supposed servants of free-born people, why should they be allowed to vote or have unions or lobby at all?
I mean, I saw one former police officer-turned-researcher who made an argument when it comes to police unions, that you could argue the fact that unions should be allowed, even public employees should be allowed to, you know, organize and lobby for things like pay and working conditions.
But they shouldn't be allowed to lobby for things like the laws that control, like, you know, criminal code or, you know, disclosure laws about police misconduct, Blue Shield laws, those kinds of things.
You can argue the fact that they should be allowed to lobby for better working conditions like anyone else can, but we should be concerned about them lobbying for actually changing the laws that pull people into the criminal justice system.
And so, there's a middle ground, I think, between, like, if you want to become a police officer, you lose your right to organize and vote, which, think about who that would then cause our police officers to be, right?
Versus, like, you know, sort of, there is some amount of sort of, you know, they do have sort of an undue amount of power right now, especially just because they have a very, very strongly vested interest in the kind of Blue Shield laws they pass.
And they're sort of your classic public choice, right?
They're a small, concentrated interest group with access to politically important people, and the opposition is much more diffuse and has a hard time organizing.
And it is sort of your classic, you know, poli-sci 101 recipe for problematic policies.
Yeah.
All right, now, so you talk about here the 94 crime bill that Hillary Clinton got in so much trouble over for her soundbite about saying, we have to bring these super predators to heel, which is pretty bad.
Although, not to argue too much in favor of Hillary Clinton and her point of view, but she must have been brainwashed as hell just like everybody else about all the hype about young black people selling and trading in cocaine in the late 80s and the early to mid-1990s.
I mean, people were just terrified that, you know, the crack epidemic amounted to a war against everyone who wasn't using it, even though they couldn't even see any of this violence anywhere but on television most of the time.
But it was such a propaganda campaign.
I mean, I'll never forget it.
Tom Brokaw and his giant special about the Crips and the Bloods.
They must have done 10 times, all that stuff.
But anyway, so they passed that crime bill, but you say there was this other law at the time, the Prison Litigation Reform Act, that actually doesn't get nearly the publicity but was a much more important bill in a way.
Right.
So, you know, the Crime Act gets all sorts of attention because its provisions are easy to understand, right?
It paid states to make their sentencing laws tougher.
It expanded the death penalties for federal crimes.
It's the kind of thing where you can grab onto that and say, like, I get this.
These are your classic mass incarceration policies.
But the fact is, if we look at empirically, it doesn't look like it really had much of an impact.
Like, maybe things have started declining sooner for the bill, but it certainly didn't cause an increase in incarceration.
It might have slowed the general decline that was already starting at that point.
What the PLRA is about is about making it harder for prisoners to litigate how bad their conditions of confinement are.
And it gets very technical and very tedious.
And like, you know, where once they expand the death penalty, that grabs people's emotion.
The PLRA is like, they created these annoying administrative exhaustion requirements that you had to fulfill before you're allowed to file a petition.
What does that mean?
Exactly.
Right.
It means the fact that, like, you can't file your federal appeal, you can't file a complaint in a federal court about how you're being treated until you've gone through certain remedies that the prison system itself will run.
And those remedies, of course, are terrible, but allow states to drag their feet.
Right.
To the point that sort of the most high profile case of this was Brown v.
Plata, which made the Supreme Court about California's conditions, where California is basically saying our prisons are so overcrowded and our physical and mental health care is so understaffed that we probably have 60 or so preventable deaths every year.
And to put that in perspective, the country as a whole executed about 40 people.
California alone had 60 preventable deaths.
Right.
So they are basically a bigger death penalty than the nation as a whole.
And they're basically saying, but you can't complain about that because the PLRA says you got to go through our procedures so you can't file a complaint in federal court.
And they lost that claim five for the Supreme Court.
They almost pulled that off.
Right.
And California remains one of the only states whose system is under any sort of court supervision right now.
And it allows states to just, you know, warehouse prisoners at a cheaper rate.
You don't have to spend so much on staffing and food and space or build new prisons because it's very hard for prisoners to complain that that they're being mistreated.
But it's all technical, legalistic, like hyper legal, like provisions about how do you properly file a complaint in federal court?
That's a very hard thing to rally the public around, even though it caused 60 additional deaths in California per year.
And that is the question, right?
I mean, you end your thing saying reformers need to direct more energy toward changing them.
And that's what you're doing.
It's a great piece.
But how in the hell do you get the Texas state legislature to say, you know what, let's repeal the later 20th century here and some of the mistakes we've made and see if we can fix up some things and go back and, you know, I mean, I guess they did have, actually, Texas is one example of where they did try to move low level drug offenses more to drug court.
And they even closed a couple of prisons.
Although this is a big state that had a lot of prisons.
So on the margin, I don't know exactly, you know, what that really represents.
But, you know, like this kind of thing.
I mean, we're talking federal level with this law, but still this and the other thing, how do you get politically speaking, how do you get people to say, look, we want stiff sentences for murderers and child rapists and stuff, but we want everybody else to be free.
And we want to repeal all the stuff that's been done wrong before.
There's just seems to be so little pressure for that, or whatever reform pressure actually mostly seems to me, I'm sorry to say, to be wasted, saying we need to just end racism.
And then all this meanness will stop when, which is totally missing the point when the question is accountability and incentives, as you're saying.
Right.
I mean, how do you actually make this work politically?
Like my, my job is to show the problems.
It's John Whitmire's job to figure out how to actually make it work politically.
Right.
That's, that's, that's, I, I, I'm an academic.
I'm not a politician.
I'm not, I, you know, understanding, like, how do you, how do you frame this is a good question, but I do feel like that's one of the things the reform movement isn't doing enough of, which is understanding, like, just how, you know, psychologically hard, what the proposal is, that people are generally afraid of crime that most people don't, aren't exposed to it.
So, so it's sort of, it's the, the, the cost of punishments imposed on people who are over there, not over by me.
And so it's easy to be harsh because you're not feeling that harshness.
And how do you tell that story?
So you can bring sort of a public that, that, that cares about it, but doesn't pay attention.
And it's generally kind of scared and skittish.
How do you bring them along?
It's, there are, I think there are ways to tell that story.
I think there's been too little research done on this right now from like literally a marketing point of view.
Like, how do you market like a smart on crime versus tough on crime narrative?
And we're, we're starting to see that, but I think there's a lot more work to do on like, how do you actually sell this to liberals?
How do you sell it to conservatives, libertarians, evangelicals?
Like, I think it would tell a different message to each group, but there are ways to frame that would get to them.
Yeah.
Hey, John, before I let you go, let me ask you one more thing here.
I got this idea that whenever there's a police shooting, and I know there's a little bit off our topic of the, you know, imprisoning people here, but whenever there's a police shooting, what if you had a, you know, 50 state laws that said that they did a random lottery where the DA and the detectives from another county would be in charge of reviewing the shooting?
I mean, I think that's a great idea.
In fact, there were, there were two adjoining counties in Maryland that actually their DA's agreed they would swap their police shooting cases.
And then there was in Wisconsin actually has a law that while the home county DA does the prosecution or chooses to prosecute, the, the investigation has to be done by an outside agency.
And New York state has an executive order that says that anytime a police officer kills someone, the state attorney general has sort of the right, the right to come in first to take the case if he wants to.
And in fact, a district attorney in Albany had a police officer in his district who shot and killed someone.
And while the attorney general, he made it clear, he was still contemplating whether or not to take the case himself.
The DA raced it to the grand jury, got the juried issue, the grand jury issue, no bill to get the officer off the hook.
And the attorney general proceeded to make a filing indictment against the district attorney for, for violating the order.
Wow.
Yeah.
Against the district attorney for intervening.
Yeah.
My God.
Yep.
So the Schneider, well, the ex attorney general, Eric Schneiderman actually issued a felony indictment against an elected DA for interfering with his right to take this case first.
So I think you're starting to see a move in the direction that you can't expect a DA to investigate the police officers he needs to testify in his trials.
Uh, no, but again, there are not a lot of cases along those lines, but you're seeing a move in, in that direction.
Yeah.
And it seems like the obvious thing I, I hate to pick on the black lives matter guys.
Cause you know, I'm for what they're doing.
And I, I could definitely see why to them it is a racial issue because black people typically have a lot less political power.
So they're the low hanging fruit that are, you know, basically the easiest to beat up on and get away with traditionally, obviously from slavery onward.
Um, so they see it through those eyes when the solution is not ending bad racial feelings, or at least maybe it is, but boy, is that going to take a while?
What if we started to try to get creative with accountability here?
We can't abolish these monopoly States, these 50 States, not yet anyway, but maybe we could set up some checks and balances in ways, you know, to disrupt the current system of everybody in power protecting each other.
Yeah, I, I agree.
I, I, the public defenders hate it when I say this, but I've always wondered if we should empower public defenders to actually be the ones who prosecute police cases, right?
Cause they already know who the good cops are and the bad cops are their incentives are aligned to, to resist the police, not to go along with them.
Right.
I think there are ways we can think creatively about how to create much more effective checks and balances.
And we, and we haven't done it yet.
Um, but I think cases like what we see in New York, we've have, you know, a good executive order and an attorney general who has his own reasons for, for maintaining his authority to go after these cases.
And it has a, you know, it helps that New York is a, is a, is a fairly liberal state.
So whatever, I mean, he has no aspirations now, but whatever political aspirations Schneiderman had, you know, being tough on police violence was, was aligned with those.
Uh, there, there are ways we can come up with better, better ways to have checks and balances.
Absolutely.
Right on.
Well, listen, man, I think it's great work that you're doing here.
And, um, so important.
It should be so obvious to all of us.
And yet, you know, like a lot of things, you have to really see it spelled out correctly in front of you to really get your head around it a lot of times, I think.
And, uh, so you've really helped with that.
So thank you very much.
Thank you so much.
All right, you guys, that's Jon Pfaff and the article is at the appeal.org, the appeal.
It's called the perverse incentives of punishment.
And he is a professor at, uh, professor of law at Fordham law school.
And he's the author of the book locked in.
All right.
So you guys know the deal of fools, Aaron dot us for the book, Scott Horton.org and youtube.com slash Scott Horton show for all the interviews, 4,500 of them now going back to 2003 for you there, read what I want you to read at antiwar.com and at libertarian institute.org and follow me on Twitter at Scott Horton show.
Thanks.
