The Reading Room

Decent People, Bad Institutions

Consider the following: a major United States city has witnessed a recent upswing in violent crime. Generally, U.S. crime levels are still much lower than their peak in the early 90’s, but many residents perceive their city has descended into a hellscape not unlike the New York City featured in the movie Death Wish, where a stroll down any block risks violent assault or battery.
Social media clickbait, disinformation, and 24-hour news cycles fuel the perception that no time has been worse than the apocalyptic now. Many voters and “secondhand dealers in ideas,” through some combination of rational ignorance and recency bias, perceive falsely that things are more dangerous than ever and seek “tough on crime” laws, including mandatory minimum prison sentences for infractions like illegal weapons possession. 
In response to voter demand, politicians rush to pass bipartisan “tough on crime” laws. Any politicians advocating for a more measured response risk facing accusations of softness, making excuses for social pathologies, and encouraging vigilantism by not doing enough to fix the status quo. While these politicians may sincerely oppose the laws privately, they vote for them anyway to avoid martyring the rest of their career platforms. 
A vulnerable young adult woman in this city illegally possesses a handgun to protect herself from an abusive ex who stalks her. She has limited resources for escaping her situation. She also has prior felony drug charges, which is partly why she’s disqualified from owning a gun legally, but she has no history of behavior that would suggest her possession of the gun elevates her risk of endangering innocent victims. During a traffic stop, police find the gun on her and, even if they are sympathetic to her predicament, have to make an arrest on weapons charges. They can’t simply bend the rules and let her go since the gun needs to be accounted for and the arrest has been recorded on publicly available body cams.  
The city’s district attorney faces his own election pressures, in addition to which he and his team of prosecutors have been tasked with the mandate to pursue all weapons cases doggedly. After all, what good is a law, especially in the eyes of supportive voters and would-be criminals, if it’s not going to be upheld rigorously? Rather than mealymouthed rhetoric about making the streets safer, they face minimum arrest quotas and goals for higher conviction numbers, lest they otherwise be accused of failing to execute laws the politicians have passed on behalf of a concerned public. 
The arrested woman’s overworked public defender recommends a plea deal, given her prior record and the threat of a longer sentence if her weapons case goes to trial. The woman is offended at the notion of taking a plea for merely protecting herself from a stalker. She doesn’t take her attorney’s advice, believing that an impartial arbiter will understand her situation and absolve her of any criminal wrongdoing. 
So, her case goes to trial before a judge who also faces election pressures and hands tied by mandatory minimums. Although sympathetic to her situation too, the judge can’t simply throw out her case or sentence her lightly. She is found guilty of felony weapons possession and sentenced to the mandatory minimum of five years in state prison. Her case and many like it never make headlines because the news is clogged with stories of high-profile athletes and entertainers’ court cases. Her case and many like it also raise that year’s conviction rates to politically salubrious results, though it’s harder to come by evidence that the streets are any safer.  
Is crime that bad, or are we dealing with an action bias based on some moral panic? Maybe something needs to be done. The fact that an action bias exists doesn’t mean the bias isn’t tracking a good reason for changes to be made. But are “tough on crime” laws an effective solution, especially if one upshot of such laws is that a significant number of people like our vulnerable young woman will face felony incarceration and all the setbacks attendant with that? What does it say about a political climate if judges aren’t trusted to use their discretion in handling cases and giving sentences?   
The main takeaway here is that, arguably, no person in this story is a villain, and perhaps everyone is decent. But decent people aren’t enough. We also need institutions that protect us from the specter of unjust or excessive legal punishment, where the left hand doesn’t know what the right hand is doing, something potentially far more worrisome than above-average crime rates. The fact that a bunch of decent people set bad things in motion suggests something is off with that institutional structure, But can anything be corrected or are we trapped by imperfect knowledge and incentives? Imagine how things might go if a few indecent people were also mixed in with that structure.
One reform might be making certain offices unelectable, such as DAs, judges, and county sheriffs. Perhaps it’s too easy for them to be swept up in populism and metrics that long-term unelected appointments might alleviate, just as we do with Supreme Court judges. Another reform might be bans on mandatory minimums. As mentioned, a lack of trust in judges’ discretion suggests issues problematic enough without adding questionable laws to the equation. Yet another reform might be more participatory democratic settings, such as town hall forums or community initiatives, that mitigate rational ignorance among voters and help people better understand the sources and best approaches to social ills. A vibrant civil society can reduce the temptation to seek counterproductive political shortcuts.
Virtue, or at least decency, may be requisite for a free society. But we need good institutions too.