Rachel Barkow on Fixing the Fundamentals of Criminal Justice

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“Tough-on-crime” is possibly the most abused political slogan – almost as bad as proposing a balanced budget by eliminating “waste, fraud, and abuse.”

Unlike empty promises to cut spending though, politicians actually keep their promises to go hard on the “bad guys.”

From a public choice perspective, acting tough on crime is the perfect ploy for a politician. Here’s why:

Prison sentences are expensive long term, but cost little up front.

The politicians gets a quick boost in the polls, and society pays the majority of the cost later, once the perpetrators are released.

In short: A good mob needs a good scapegoat.

Tough on crime was the strategy that George HW Bush used to hammer Michael Dukakis in the 1988 presidential election.

It’s also why Bill Clinton took time off the campaign trail to oversee the execution of a mentally disabled man in 1992.

Lastly, it’s why Trump frequently mentions atrocities committed by illegal immigrants in his speeches to packed arenas.

Rachel Elise Barkow is a professor of regulatory law and policy at NYU and author of Prisoners of Politics [Buy it on Amazon] – a comprehensive look at how our criminal justice system has turned the United States into the leader in incarceration. Barkow has come to the conclusion that mass incarceration is a product of too much democracy and not enough data.

Barkow’s Q&A with the Cato Institute’s Clark Neily (formerly of the Institute for Justice) is a fascinating survey of the abuses of power by federal prosecutors, who have turned plea bargains and mandatory minimums into coercive tools to deny the accused their right to a jury trial.

The Framers are rolling their graves.

While there are some silver linings, such as a bi-partisan reform that passed the Senate last year, the bitter truth is that the overall trend is toward more prisoners, more plea bargains, and more politics as usual.

New statutes consistently make it easier for law enforcement to do their job. Prosecutors are captured by special interests in law enforcement, and judges and politicians are afraid to appear lenient in the event that they let the next Willie Horton off the hook.

While no one wants to bring back Dukakis’ “weekend furloughs” for murder convicts, there are a range of common-sense reforms working their way through state and federal legislatures. These include clemency for non-violent, non-serious offenders, as well more data-driven proposals to reduce recividism rates.

A Necessary Function of the Administrative State?

Barkow’s solution to the mass incarceration crisis involves a greater role for the administrative state — the bureaucratic arm of the executive branch, which I’ve covered extensively on my show.

While most of my coverage has been negative, Barkow sheds some light on the question of when rule-by-expert might be preferable to pure democracy or congressional lawmaking. Congress could write the laws, but members of both parties seem to prefer scoring cheap political points through scapegoating over fixing a broken system.

Would an administrative agencies tasked with reforming the criminal justice system be subject to the same lobbying and electoral pressures as Congress?

Can data-driven experts fix the criminal justice system – or do we perhaps need a mass lesson in jury nullification?

Is more democratic participation or less needed to keep our prisons from filling up due for non-violent offenses?

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