Round the Decay of that Colossal Wreck

Scott Greenfield rightly bemoans law enforcement's use of robotics in situations that typically call for classic negotiation and conflict resolution. Cops de-escalate because a big part of the cost of a confrontation with armed bad dudes is the possibility of taking a ride home in a hearse. No one wants to eat lead, therefore wait the guy out, talk him down, or lay siege. Unfortunately, playing a waiting game with a desperado is expensive. Not only do showdowns incur direct payroll costs, but every officer stationed in a crouch behind a cruiser waiting for the madman to stand down is an officer not patrolling the community to maintain good law and order. Petty criminals get themselves a Roman holiday when some loony-pants starts shooting up a demonstration. In econ 101 terms, the use of a disposable weapon-bearing robot is relatively cheaper than the next best alternative.

Or at least in a one-shot interaction (pun unintentional). This one time, it's expedient to send in R2-D2 to blow up a bad guy so that we can all get back to our regular beat, or make it home in time to catch the last couple of innings, or whatever. The problem is that weapons systems have a bit of a tendency to metastasize. Military advantage is fleeting. Macedonian King Philip II believed that his armies' use of the ballista would mean the permanent end of warfare, since all other peoples would be so cowed by the mighty weapon that they would lay down their arms in the face of his superiority.

Cheap weapons-bearing robots mean that the relative price of doing harm from afar is dropping. This is as true for sovereign armies as for municipal police as for backyard hobbyists. Remember the killdozer? The 2016 version would have a Rasperry Pi and a mobile phone in lieu of a pilot. Or how about a quadrocopter swarm fitted with homebrew chemical weapons? Just imagine how many dishonorable, despicable ways wicked men might conjure to slay their foes once a) the price of remote murder drops sufficiently and b) the Overton window for assassination-by-remote opens. DPD officers might be obliged to confront some serious regrets once the renegade element decides that robotic combat is fair play.

Some genies can be corralled with strict control over production bottlenecks. The great expense of enriching uranium means that backyard nukes are probably forever unlikely. The same goes for hobbyist howitzers and tinkerer tanks. But little 3-D printed, remote-controlled drones? I urge you to remember which side shot first.

When We Meet Again, It Won't Be Me.

Texas Lieutenant Governor Dan Patrick urges law-abiding Texans to pay for his gendarmes' coffee and pie when they see them out and about enjoying Dale Cooper's preferred repast.

The relevant text (link):

I challenge all Texans to think about how underappreciated our officers must feel, how dangerous their jobs are, how they leave their families everyday not knowing if they are coming home and more importantly, if there is anything you can do to help make their job a little easier. 

Join me in changing this negative attitude toward those that protect us, by practicing the following:

• Start calling our officers sir and ma’am all of the time. It’s a show of respect they deserve.
• Every time you see an officer anywhere, let them know you appreciate their service to our community and you stand with them.
• If you are financially able, when you see them in a restaurant on duty pick up their lunch check, send over a dessert, or simply stop by their table briefly and say thank you for their service.
• Put their charities on your giving list.
• If your local law enforcement has volunteer-citizen job opportunities, sign up.

For more on the opportunistic politics of the press release, read Mark Bennett here. For remarks on how the sentiments behind the statement obfuscate the central issues of excessively expansive criminal codes and police incompetence, read Scott Greenfield here. For a great deal of heat and very little light, you can scroll through my twitter timeline a day prior to the publication of this post. You can follow me here.

I have nothing to add on the moral, legal, or social aspects of Lt. Gov. Patrick's call for obeisance. Well, apart from snickering at the fact that he's asking constituents to commit what might in other circumstances be considered bribery (if you've ever worked DoD procurement, you'll know what I mean). I will however comment on the economics.

Patrick is calling for side payments, what economists might call "non-pecuniary benefits" paid directly to his praetorians by citizens. He's asking for a compensating differential, in other words. The converse of the "employees with hazardous duties must receive additional pay to induce them to accept the job" is that employees with marginally more pleasant work environments will not so vigorously insist on higher salaries. Rational taxpayers should welcome any opportunity to reduce their annual share of tribute to the constabulary, and for people like me, middle-aged white parents who might also be veterans, the marginal cost of using the sort of language that was drilled into us in boot camp is negligible. I fancy myself to be a fairly affable sort, even if that might not extend to paying for a cop's dessert.

But willingness-to-pay is linked to value, which is subjective. My subjective cost to greet a police officer with a smile and a polite, "how may I help you today, sir?" is considerably lower than someone at greater risk of being the target of a no-knock raid or a spurious traffic stop. Patrick's request is, to use a technical term, regressive. Regressive not in the sense that it's barbaric or reactionary, but regressive in the sense that lower income citizens pay a larger share of their income or wealth than do higher income citizens. Of course, since we're talking about non-cash payment, you have to squint your eyes a little and picture "income" as including things like peace of mind, patience, forbearance, tolerance, and the like. Imagine some sort of mental budget where you have a limited capacity to treat with kindness a class of people who can slaughter your pets and murder your kin in the streets with impunity.

So Mark's mostly right when he says that the list of demands is a dog whistle from the ruling class to the praetorian guard, but there's also a wink and a nod to the comfortable, middle-class, law-abiding citizens not at risk of falling into the "undesirables" category. NORPs like me aren't being asked to much change our behavior. Dusky complexioned Texans from the wrong side of the tracks are.

As for the moral intuition here, I think reasonable people can disagree. It is certainly individually prudent to defer to people who carry guns as part of their official duties. However, it is institutionally bonkers to maintain policies and legislation that grant these people unfettered, extensive authority to intervene into private, otherwise peaceful affairs. Consider the possibility that it might be easier for members of the black community to speak respectfully to an officer if they knew they were at lower risk for being pulled over on a DWB or if they didn't have to fear SWAT busting in at 2am to the wrong address because some dyslexic clerk botched the house number on the warrant application.

Sweet Green Icing

Kids, remember not to leave your cake out in the rain. And by "cake" I mean berries growing on bushes in Maryland county and municipal parks. You might just earn yourself a $50 fine.

ATSRTWT

Foraging seems like it should be euvoluntary. I can understand using fines and punishments to protect something like a community garden, where people have mixed their labor with the natural endowments of the earth, thereby asserting property rights over the produce. But naturally-occurring berries and mushrooms and the like aren't owned.

Of course, some sorts of forage can be destructive. When I lived in the Ashford/Mt Rainier area of Washington, it wasn't uncommon in the early summer months to see folks out with big ol' baskets by the side of the road a-pickin' and a-packin' the sundry bounty of the evergreen forests of the Emerald State. Most of what they were after were ingredients that were common in their home countries but which are largely unavailable for purchase in US supermarkets. Things like fern fronds, exotic varieties of mushroom, roots, and young leaves seemed to be their primary quarry. This sort of forage can destroy patches of the ecosystem thanks to the logic of an unregulated commons. Maryland legislators, perhaps wary of disastrous outcomes, passed appropriate legislation and hey-presto! Problem solved, right?

Of course, cops are trained to fight crime, not to interpret the nuance of legislative intent. The purpose of plant protection law is to protect plants, not to harass someone harmlessly collecting a handful of berries.

Of course, it could be worse. A half a c-note fine is petty compared to a guy my wife knew in Washington who got deported (to Korea, iirc) for exceeding a razor clam harvest limit. Deported.

Apologies to Nathan Burney, but the power of the state is a big ol' dumb hammer. Be very careful what you swing it at.

Obligatory:

The Switching Costs of Petty Tyranny Avoidance

Via Nick the G & Paolo The Wifehunter, a purulent little saga of petit neighborhood despotism. The short version: family puts up a playground for the kids. Playground is purple, so as to match the hue of the autumn foliage. HOA declares it an eyesore, threatens family with jail time (seriously?).

OK, by now all good libertarians are readying a logical and somewhat-convincing response to the Stout's troubles: You can just move. You agreed to live under the authoritah of the HOA when you moved into the neighborhood. So shaddup already.

There's more than a little truth to all that, but as Ekdahl wrote on Twitter in response to just that sort of response, "The 'rules' in this case are very vague and don't justify jail time." Things get even cloudier given that the Stouts apparently successfully appealed fines related to the construction of the swingset.

What would Coase say?

I suspect he wouldn't say "shaddup already." I suspect he'd acknowledge that part of the tacit package of rights when you buy into the governance of an HOA includes not being niggled and harassed by two-bit tinpot bullies who would be a caricature even in Kafka at his most Kafkaesque. I agree with the standard economic view that you can put a price premium (discount) on just about anything, including exceptionally nosy neighbors, I also agree that the many emanations and penumbras of too much discretion in the hands of uptight HOA directors is, effectively if not legally, an uncompensated takings.

And seriously, jail time? Are they even for real with that crap? It's a good thing our actual elected officials in the many legislatures of the land have better sense than to misuse the criminal code do flagrantly. Right?

Purple playgrounds: super non-euvoluntary, you guys. Totes magotes.

Ph'nglui mglw'nafh Tacky Swingset R'lyeh wgah'nagl fhtagn

Rainy Day Woman

I don't always catch fascinating conversations when I eavesdrop, but every so often, I will overhear something that makes me think. Here's a stylized transcript of just such an overheard conversation. The venue was a charming little country diner run by Southern European immigrants not too far from where I live. The place is popular with the local commoners, which makes the exchange far more remarkable than had I overheard it in, say Fairfax near campus. I have no idea who the people are in this exchange, so the names are completely fictitious.

For reference, I had ordered my standard omelette with biscuit, but it had yet to arrive when this conversation started.

Alison: Thank God we've got a field of candidates not scared to talk about immigration this time around. These democrats are going to ruin us if their amnesty plans go through.

Belladonna: Oh come on, it's not that bad. They're just trying to make a better life for themselves.

Alison: A better life? Do you really want people here that think it's OK to stone a rape victim? I'm sorry [Belladonna], but that's insane.

Belladonna: Well, tha...

Cathy: Hold it right there. Have you stopped to consider there might be a good reason they do that?

(slack-jawed looks of disbelief)

Cathy: Think for a minute what it's like in those countries for a woman who gets raped. She's an instant pariah. She can never marry, never have her own house. In many of those places, she already can't drive, can't get an education, can't vote. In places where woman already lack decent options to make their own way in the world, a quick death is a mercy. Think of the circumstances. Oh and by the way, if this is Afghanistan, there are poppy fields right outside. Her mom is probably out cooking up a batch of opium before the stoning so that she doesn't feel a thing.

(stunned silence)

Alison: Cathy, you say the weirdest things.

I agree with Alison. I'd never expect to hear such an argument outside of a Pete Leeson class. I briefly considered asking if she'd ever studied under him, but I was out with my daughter, and the wise father does not leave the 3 year old unattended for long.

Anemia of the Conscience

ORS § 659A.403:
Discrimination in place of public accommodation prohibited

(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. 

(2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served; or (b) The offering of special rates or services to persons 50 years of age or older. 

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.

Emphasis added. I picked the Oregon public accommodation statute for its recent relevance, but pretty much any state would do. Furthermore, I highlighted "sexual orientation" for the purposes of illustration, but you might imagine that there are edge cases for the other protected classes.

Before I pose my question, a quick review of etymology for those who may have forgotten:

Pederasty is an act. It is the sexual congress of an adult and a minor. In Anglophone jurisdictions, it is malum in se crime, an act of violence against an innocent. Coercion is assumed, with the possible exception of Romeo and Juliet laws where applicable. Conviction of this offense is typically accompanied by registration with the state and subsequent housing location restrictions after prison release.

Pedophilia is an orientation. It is the sexual attraction of an adult towards minors. Without an accompanying act, such as the possession of child pornography or the sexual assault of a minor, it is not a crime.

Pederasts do not constitute a protected class. Felons may be turned down for work simply because they are felons, no other reason given. They do not enjoy non-discrimination protections for equal housing. Sex offender registrees have it even worse (in some jurisdictions): even if a landlord is willing to rent or sell, proximity to schools or churches may statutorily prohibit the transaction.

Pedophiles are part of a protected class, at least in 21 or so states, depending on the specific language of the state statutes. The same goes for—again, according to the black letter of the statute—bigamists, ISIS members, former Nazis, or flatulent televangelists (curiously, veteran status is not listed in the Oregon statute). Running a business statutorily obviates conscience of association in commerce, both for good and for bad.

Exchange is lovely, doubly so if it's euvoluntary. Both parties are better off (or at least no worse off) for conducting a transaction of their own free and clear will. Under public accommodation statutes like the one above, it is sufficient that merely one party to the exchange is better off. Sellers are permitted neither the luxury nor the exercise of their conscience. Usually, most people will happily approve of the proposal that vendors aren't granted the liberty of indulging a rotten conscience: denying same sex (or mixed-race, or Irish, &al) couples access to market goods is a barbarism the silent majority of us have moved beyond. But the price of forcing this conversion with the hammer of the state is that there may remain some conscience violations many of us are not prepared to accept yet.

And so when the local kiddie pervo saunters into the Circle K to pick up a tub of hand lotion and a box of tissues from you, you are legally obliged to complete the transaction. The alternative social institutions is to allow rhetoric and persuasion to change merchants' minds on the sort of clients they're willing to serve. Perhaps rhetoric and persuasion aren't as powerful or swift as we might like.

When I Do It, It's A Felony

15 U.S.C. § 1:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Perhaps embarrassed by the revelation that the US wing of the Stasi had been running an inquisitorial summer camp deep in the heart of his jurisdiction, Cook County Shire Reeve Thomas J. Dart has politely requested of major credit card firms Visa and MasterCard (at a minimum) to cease processing payment requests made on Backpage.com (see Twitter hashtag #chargeisdeclined for all the latest updates to this sordid saga).

Backpage, according to the moral scolds who seek its capitulation, is the Mos Eisley of the Internet: a wretched hive of scummy pimps and their villainous whores. But I invite you to follow the link. There's nothing more salacious in there than you'd find in the pages of, say august Seattle publication The Stranger (indeed, few of the advertisements you're likely to find on backpage come within a country mile of the hilarious profanity you can find in the broadsheets of Seattle's Only Newspaper; ask me sometime about the pelican ad). Backpage sells nothing apart from advertising space, and there is no 1A exception robust enough to prosecute a publication for selling advertising space to folks who wish to privately arrange illicit transactions (of course, reasonable people may disagree with this claim, so don't take it as legal advice).

Read the excerpt from Title 15 up there at the top again. The economic case in favor of trust-busting is self-evident: concentrated authority directed to the purpose of thwarting markets impoverishes consumers. The legislative solution to collusion in restraint of trade? Why, someone should pass a law. Ergo, the Sherman Anti-Trust Act and its procession of corrections, amendments, sister statutes, and clarifications. There is now in the United States a large, well-developed black letter statute basis for anti-trust authority. All of which, it seems, exists to divert attention from the original jurisprudence: preserve competition and you preserve the ability of consenting adults to truck, barter, and exchange.

I do confess to being a little puzzled by the major credit card companies' willingness to capitulate to the demands of a lone Chicago-area thug. Distributed P2P payment schemes like Bitcoin eg may still be in their infancy, but I can't imagine a maturation chamber more effective than threatening the ease by which prostitutes close sales. A Bitcoin-only Backpage might well provide the everyday proof-of-concept the alt currency needs to cease being a curio of nerd culture and begin being the lubricant that facilitates the smooth transaction of carnal commerce.

Rules vs Discretion (again)

For your viewing pleasure:


Police don't make the laws. Legislators do, at the request of constituents. Constituents therefore bear responsibility for the thuggish displays that arise as a direct consequence of their petitions for redress of injury.

A pair of little girls selling lemonade should occupy the top tier of what can rightly be considered euvoluntary exchange. The relentless quest for prior restraint cannot.

Of Deeds and Unpunishment

Rescuing a suffering animal is a noble act. Every so often, a noble act requires sacrifice. Not all sacrifices are offered by he who performs that kind act of nobility.

Michael Hammons of Georgia discovered that saving a dog by smashing a window carries with it the risk of arrest. The property owner says he's a vandal. Everyone else with a shred of conscience says he's a hero.

I wonder if anyone bothered trying to find the owner before busting the window. "Diane Byard says she and a group of shoppers noticed the dog in the car and were waiting on police before Hammons came."

"Waiting on police." Not "getting the store manager to issue a loudspeaker announcement," or "canvassing passersby." There's a problem? Call the cops or hope that an action hero stops by. Heavens forfend  we might attempt to solve a problem civilly.

People, with constituents like these, is it any wonder that criminalization has gone over-the-moon berserk? Be a good citizen. Be a good neighbor. Smashing folks' windows to rescue hot dogs is a last resort. If there is a social contract, amending the terms and conditions towards a more euvoluntary arrangement is surely in everyone's best interest. Yes?

TFP vs Mandatory Minimum Sentences

"TFP" is a term of art from [macro]economics that stands for "total factor productivity." We have these equations that represent production and we want to see what happens when various input factors change. Very basically, it's how we tend to model whole economies using a modicum of math. Some inputs are very easy to measure. Total labor hours worked come straight out of data forwarded to the IRS for tax purposes. There are also periodic surveys conducted by the St. Louis Federal Reserve and some statistical analysis by the Bureau of Labor Statistics, part of the Department of Labor. We also more or less know how much physical capital exists, again because firms have to report depreciation to the IRS. Interpolation fills in the rest, and there's a 70-30 labor-to-capital cost ratio that is pretty stable over time.

So we can explain quite a bit of GDP just using those two factors. Modern macro decomposes that stuff further, picking out education, the role of mobility in fitting jobs to applicants, special categories for certain types of tech, yadda yadda yadda. Everyone's got their special little model, and first- and second-year econ grad students spend many a frustrating night (I assure you from personal experience) fiddling with models of their own. But always always always there's a big pile of productivity left over that can't be explained empirically even when you account for all these little things. By "big pile" I mean usually more than half. And if you extend the time series long enough, almost everything can't be explained by mere capital and labor.

If you've taken undergrad macro, you might recall hearing that TFP is sort of akin to "technology," things that make folks more productive without requiring extra tractors or extrusion molds or whatever. We can make tool dies more efficient by speeding them up, improving tolerances, using fewer materials to do the same job. Or we can use fancy programs written in C-sharp to automate decision-making. Or we can have videoconferencing. Or whatever. That's probably a part of the story, but I find McCloskey's claim appealing: the change in rhetoric, if not a wholesale change in the very structure of English itself to accommodate commerce was what really permitted the flourishing of euvoluntary exchange starting around the same time as the Glorious Revolution. What TFP technically means is just a residual, i.e. the part of the right-hand variable that can't be accounted for by the left-hand variables. If we really knew what it was, we'd be able to model it better.

But it totally exists. And the stylized fact of things is that TFP has gone up and continues to go up in the vast majority, if not every modern economy in the world. This means that on average, every worker in a modern economy produces more in 2015 than in 1955. Every hour, every year of today's labor makes more stuff now, contributes more to the general welfare than sixty years ago.

So when you take a worker out of the 2015 economy to do 25 years for simple possession on a three-strikes today, the social cost is considerably greater than it was in 1974, when Texas was the first state to take this particular stab at getting "tough" on "crime."

If mandatory minimums remain constant as TFP increases, could that be a stealthy usurpation of 8A jurisprudence? Why or why not?

Of Compliance

I'm too young to remember May 4, 1970 at Kent State. But I am old enough to remember Rodney King. The acquittal of Stacey Koon, Laurence Michael Powell, Timothy Wind, and Theodore Briseno occurred near the end of April 1992, leading to a nearly week-long riot in El Pueblo de Nuestra Señora la Reina de los Ángeles del Río de Porciúncula. Whatever your age, it's likely that you're familiar with some sort of miscarriage of criminal justice.

Something interesting is happening. In 1970, armed agents of state violence could risk getting away with murdering four college students in cold blood because the probability of detection was low: maybe someone had a Polaroid handy, or even a lovely old SLR. But these things were bulky and expensive, and few students had room in their thigh-hugger bell bottom dungarees to tote around something as cumbersome as a camera. In 1992, cameras had shrunk, but personal video still required the Volvo of digital storage media: the boxy (but good) VHS or super 8 tape. If you're under 30, have you ever used an old VHS recorder? If you're under 20, have you ever seen one? They aren't what you might call inconspicuous. But today? Today everyone has a phone roughly the size of a gentleman's wallet that comes fully equipped with the ability to discreetly record events at the swipe of a finger. The glorious future we dreamed for is here.

But this also implies that the costs of detecting police misconduct have dropped.

Think strategically on this for a moment (if you're so inclined, write the game out formally and solve for the first derivative of the probability of detection). The blue code of silence that protects officers against civilian oversight is an institution that serves an important organizational function: officers that cannot trust each other in the precinct cannot trust each other in the field, and trust, once lost, is not easily regained. If constituents wish to employ a professional police force to maintain law and order in the community, making them second-guess their fellow officers erodes their capacity to respond to incidents in a timely and effective manner.

However, the tacit conspiracy that serves a useful purpose for unit cohesion carries with it the risk of harboring rogue cops like North Charleston, SC officer Michael T. Slager who shot Walter Scott in the back eight times then planted evidence at the scene and filed a false report that Scott had attempted to take his taser.

Oops, Allegedly. That's what he allegedly did. Allegedly. Dead men tell no tales, but this time there's video. You can find it elsewhere. This is (mostly) a family blog, so I won't include it here, but if you haven't already seen it, know that it's pretty graphic. Fair warning.

The ubiquity of video is the slow knife piercing the cone of silence. You know, like wtih Jean Luc Picard and Dale Cooper.

If you're a sex worker, stories of rapist cops will come as no great surprise. If you live in a predominantly minority neighborhood, stories of lethal no-knock 3 AM SWAT drug raids will be old hat. If you've ever had the wrong complexion or the wrong clothes in the wrong part of town at the wrong time of day, you won't be shocked to discover that "to protect and serve" often carries with it an unspoken clause of "the interests of police first, favored constituents second." However, disfavored minorities speak with weak voices, so I can easily forgive you if the increased frequency of reports of police abuse startle you. You might think, if like me you are a NORP, that there is some sort of rash of police misconduct happening, that the shocking footage of Eric Garner or the stories of Justus Howell, or Michael Brown, or... well, pick your poison; it's not like there's any shortage these days, that these incidents are something new under the weird sun in America. But I urge you to consider that the parameters of the game have changed. The probability that there will be a camera on a police encounter in 2015 are far greater than they were in 1992. The problem isn't with the footage that you've seen. The problem is with the footage that was never recorded.

From the point of view of police unions, it might be time to reconsider the costs and benefits of institutional silence. If the public wishes to deter unconscionable police brutality, and is stymied by the collusion within and between law enforcement and criminal justice organizations, there is a final resort that includes the liberal application of fire and gallows-rope. Justice slumbers only so long.

Fortunately, institutions can indeed be reformed. I mentioned above that I'm old enough to remember the Rodney King beating verdict clearly. 1992 was the year I joined the Navy. It was also around the time the Tailhook scandal broke, and the Navy scrapped the old core values that included a nod to tradition and instead adopted "honor, commitment, and courage" as the Sailors' motto. I can't speak for the rest of the fleet, but in each of the commands I served under, involuntary hazing, to include sexual harassment, was absolutely no longer a part of the Navy experience. Reform is possible. 

I shall leave it as an exercise to the reader to decide whether or not such reform is likely.

Rules vs. Discretion: Statute of Limitations Edition

If politics is exchange, so surely is the machinery of criminal justice. But as in much in the jurisdiction of the state, the time and attention of police and prosecutors is not coordinated by unambiguous. competitive price signals. It is generally in the taxpaying (and justice-seeking) public's interest that the limited resources of the DA's office be directed towards those cases most likely to deliver swift resolution.

A statute of limitations is a technology directing law enforcement to discard extra-marginal cases.

Radley Balko has been working on a four-part series debunking bite mark analysis. In the addenda, Manhattan DA Cyrus Vance responds:

Melissa Mourges is a veteran prosecutor and a nationally recognized leader in her field. As Chief of the Manhattan District Attorney’s Forensic Science/Cold Case Unit, she has solved dozens of cold case homicides, including two recently attributed to “Dating Game” serial killer Rodney Alcala. In addition to being a Fellow at the American Academy of Forensic Sciences, ADA Mourges has also served as co-chief of the DNA Cold Case Project, which uses DNA technology to investigate and prosecute unsolved sexual assaults. As part of that work, she pioneered the use of John Doe indictments to stop the clock on statutes of limitation and bring decades-old sexual assaults to trial. Her work and reputation are impeccable, and her record speaks for itself.

Emphasis added.

John Doe indictments are a counter-technology. It's the DA's way of saying, "hold on, the margins have shifted. We can now see justice done well after the fact, and the economic calculus implied by the limitations statute no longer apply."

This subtext may be true or it may be false. That's an empirical question. But if they have changed, using an ad hoc legal maneuver like a John Doe indictment with great frequency should be a strong hint to the legislature that their statutory technology is obsolete, or at least that it could stand to be renegotiated.

So here's the puzzle: why hasn't it? "Tough on crime" is legislative frotteurism. Wooing voters by saying "the candidate has introduced legislation to extend/remove the statute of limitations on the most heinous crimes in society" is a no-brainer, isn't it? Can voters' status quo bias be so strong that a campaign promise like that is too weird to fly?

Citizens employ governments to provide law and order. When investigators have to subvert the law to chase crooks, the provision of this service is in disrepair. Constituents have a natural expectation to be subject to a clear, consistent rule of law. If we must have a legislature, and we must lift the statute of limitations, perhaps we should consider doing it in the legislature rather than at the whim of zealous, dogged prosecutor's offices.

Cosmetics

The farce of political kayfabe is this: the audience (constituents) expect a good show from the performers (the legislature). This means that the punters get restive when they think the Congress or the state houses or the city council are "doing nothing." In this case, "doing nothing" means passing no new statutes curtailing the set of things that citizens are granted by the permission of the assembly to do.

The tragedy arising from this farce is that the burden for enforcement falls on the police force. Tasked with maintaining public rest amid a blizzard of statutes, they quite naturally and through no fault of their own, economize on scarce resources. Sometimes this means rewarding collars, or instituting quotas or whatever. And like anyone else, individual officers find the simplest, lowest cost methods to chase their incentives.

This is sometimes to the detriment of the community.

Enter wearable cameras. The idea goes that by shining a light on bad police behavior, cops will stop harassing harmless passersby to focus attention on genuine crime.

I think we'd all agree that addressing the underlying institutional problems of police being charged with enforcing gargantuan reams of petty, meddling statutes would do a lot more to align the organizational interests of the police with the overall interests of peaceful society, but instead, much of the chatter lately has been on this curious little cosmetic reform. Why all the attention? Is it because uniform cameras are novel, or is it because repealing the enormous pile of rubbish legislation is not in the choice set? Is it something else?

If the sovereign and the constituency is to have something approaching a euvoluntary social contract, should not much of the effort of the legislature be set to the task of achieving the correct terms of that contract? Should not citizens petition the government for redress of these deep institutional grievances?

Can't we all just get along euvoluntarily?

How BATNA is Now?

Noah vs. Eli on the role of government.

@elidourado AGREED AGREED AGREED. So the constant libertarian talk about the "size of government" seems a little silly to me.
— Noah Smith (@Noahpinion) November 13, 2014

Economics is unambiguous on only a small handful of issues. One of these is that individuals, organizations, and even states are at their most productive when they confine their activities to where they enjoy a comparative advantage. By doing so, they can be as productive as they are able, and can then trade their surplus for all the other wonderful things they wish to consume.

Governments have a comparative advantage in using the tools of force to promote law and order.

I can't speak for libertarians generally, but if I fall into using the "government size" trope, what I would probably mean is "government reach," a lament about the activities of government that lie outside the scope of its comparative advantage. Legislating against consensual sex work, for example, obliges vice cops to harass peaceful sex workers, thereby passing up the natural alternative use of their time by seeking out and prosecuting forcible child prostitution. For me, "size" isn't a budget issue; it's a scope of practice issue.

We are in the BATNA now. We are exploited and oppressed, particularly those of us who are poor or minorities. Liberals, conservatives, and libertarians of good conscience should consider an alliance to restore to the state its primary function as keeper of the Constitution and protector of the public order. Universal state-funded day care is a slightly lower priority than ending the mundane tyrannies of the various wars on crime, drugs, terror & al.

Broken Windows at the Laundromat

F. Bastiat's That Which is Seen, and That Which is Unseen is a perennial classic among economists of a certain bent (including myself) for its clever lampooning of common economic sophistry. The first essay of the bunch The Broken Window illustrates the error in reasoning made when too-clever-for-anyone's-good commentators quest for a silver lining in the midst of destruction. In Limerick form, here is the fallacy he attacked:

There once was a boy from Kilpatter
A window he happened to shatter
     The papers all say
     We're richer this day
For the glazier and setter do matter

In the tale, a broken window precipitates a flurry of economic activity in its repair. This flurry of economic activity is gainful employment, therefore it is to be cherished as contributing to human flourishing. Hold your horses, says Bastiat. Think about the alternative uses of the replacement glass, think about the time the repairman gave up to install a new pane. Think about what else the window-owner might have spent his money on. These costs are real and relevant. These days we call them "opportunity costs" in economics, and depending on which economist you ask, all costs are opportunity costs.

And this is true too for money laundering. I caught a little bit of a report on Mexican drug cartels who use an elegantly simple money laundering tactic: convert cash from sales into clothes stateside (thereby boosting sales at Macy's, eg), transport the textiles across the border, then sell them for pesos. The naif might look at this scheme and say "whoa now, this is money laundering. It's illegal, unethical, and harmful." The wise sophisticate would respond: "take a moment to think about how this helps the beleaguered JC Penney stay afloat, and consider the good common folk of Mexico who now have access to high-quality fashion at reasonable prices." The student of Bastiat would reply: "it's more complicated than that."

It's more complicated than that, because the drug prohibition statutes create the laundering opportunity. Whatever gains enjoyed by American clothing retailers by selling extra volume to the cartel, whatever gains enjoyed by Mexican shoppers buying US fashion cheaply is offset by a corresponding loss in the cocaine market. Folks tooting nose candy have to pay higher prices to feed their habit, a money laundering premium if you will. The surplus of the American retailer and the Mexican clothes shopper is not profit, but rather a transfer. And the nasty shoggoth hounding the whole sordid affair is from the bloated appendix to this trade. All the law enforcement that could be better spent tracking down murderers and rapists are wasted in interdiction. All the legal proceedings take up scarce courtroom time and talent. All the time, treasure, and effort of the Army and Air National Guards, the DEA, and the Coast Guard could be better put towards actually defending the strands and lands of the nation against actual enemies, foreign and domestic instead of opportunistic merchants seeking to sell something an American citizen is willing to buy.

Money laundering is not euvoluntary, but the only reason it's not euvoluntary is because of the underlying public decisions that gave rise to the transaction. End prohibition and the wasteful knock-on markets will evaporate like dew in the Mojave morning.

Hume in Missouri

David Hume, Of Commerce (1752):

II.I.5
The bulk of every state may be divided into husbandmen and manufacturers. The former are employed in the culture of the land; the latter work up the materials furnished by the former, into all the commodities which are necessary or ornamental to human life. As soon as men quit their savage state, where they live chiefly by hunting and fishing, they must fall into these two classes; though the arts of agriculture employ at first the most numerous part of the society.*2 Time and experience improve so much these arts, that the land may easily maintain a much greater number of men, than those who are immediately employed in its culture, or who furnish the more necessary manufactures to such as are so employed.

II.I.6 If these superfluous hands apply themselves to the finer arts, which are commonly denominated the arts of luxury, they add to the happiness of the state; since they afford to many the opportunity of receiving enjoyments, with which they would otherwise have been unacquainted. But may not another scheme be proposed for the employment of these superfluous hands? May not the sovereign lay claim to them, and employ them in fleets and armies, to encrease the dominions of the state abroad, and spread its fame over distant nations? It is certain that the fewer desires and wants are found in the proprietors and labourers of land, the fewer hands do they employ; and consequently the superfluities of the land, instead of maintaining tradesmen and manufacturers, may support fleets and armies to a much greater extent, than where a great many arts are required to minister to the luxury of particular persons. Here therefore seems to be a kind of opposition between the greatness of the state and the happiness of the subject. A state is never greater than when all its superfluous hands are employed in the service of the public. The ease and convenience of private persons require, that these hands should be employed in their service. The one can never be satisfied, but at the expence of the other. As the ambition of the sovereign must entrench on the luxury of individuals; so the luxury of individuals must diminish the force, and check the ambition of the sovereign.

Capital and labor are complements. This is as true in the useful arts as in the maintenance of public order.

Robocop was a warning, not a suggestion. Law enforcement is best when it approaches what a reasonable person might agree to ex ante given the opportunity to bargain. What's happening in Missouri (and what's being prepared in the rest of the country) is hardly euvoluntary.

Sex Offender

Rape is a crime.

Unfortunately, it's a crime unlike any other. Before I mansplain why, a brief review of hypothesis-testing errors.

First, a reminder of how to construct a null hypothesis. In the most basic form, start with a control group that receives no interventions, they're all business-as-usual. Then get yourself a treatment group, those subjects who are otherwise identical to the control group but for one change, the treatment of interest. Your null hypothesis should be that the treatment produces no effect. The aim of inquiry is to reject the null hypothesis.

This is where error comes in and why the results of hypothesis tests sound like they were written by a mental patient. We don't say "X causes Y", but rather something closer to "with 95% confidence, we reject the null hypothesis that X has no effect on Y". Similarly, we don't say "X doesn't cause Y", but rather "with 95% confidence, we cannot reject the null hypothesis that X has no effect on Y." The wordiness and the careful construction of the result statements are explicit nods to the limits of statistical inference. Hypothesis testing is still, for all its sophistication, a bit like rolling one of those fancy Dungeons and Dragons dice: every now and again, you roll a natural 20. In other words, sometimes we erroneously reject a true null hypothesis (Type I) or erroneously fail to reject a false null hypothesis (Type II). A type I error suggests that X causes Y even when it actually doesn't, and a type II error suggests that X doesn't cause Y even when it actually does.

What does this have to do with rape? Well, the null hypothesis is that X did not rape Y, and the job of the criminal justice system is to attempt to reject this null hypothesis. In the case of rape, this task is rife with epistemological confusion, at least for marginal cases. Consent, or at least a plebeian notion of consent, is murky, especially when one or more parties is intoxicated. Add to that the barbaric habits of victim-blaming and perpetrator-excusing (particularly when it comes to cases involving strong social class disparities) and it shouldn't be too surprising when conscientious folks want to work to rid the system of type II errors, ultimately with the aim of effectively deterring incident rates.

Hence the rise of sex offender registries. Hence the rise of minimum mandatory sentences. Hence the conflation of forcible rape with other sex offenses (such as consensual sex between people slightly on opposite sides of statutory bright lines or public nudity or snapchatting nudes). The purpose of all these measures is to raise the relative price of sexual deviancy in an effort to discourage the deviant behavior. It's plain vanilla ordinary law and economics, straight out of Becker or Epstein.

The costs, of course, are an increase in the incidence of type I errors, where kids end up permanently on sex offender registries. Thanks to typical precautionary heuristics, landing on one of those registries severely curtails someone's options. Offenders can't buy property in certain areas, there are lots of places that won't hire registrees, and forget registered fathers volunteering at school, or even picking their kids up from soccer practice.

Still, it's a matter of trade-offs. Maybe swapping one type of error for another is acceptable to the median voter. Maybe the concentrated costs and diffuse benefits of registries are good on net for communities. Maybe. Still, it's worth considering what institutional failures prevent rape from being handled the same basic way as, say, armed robbery. It is my impression that police aren't terribly inclined to say to a B&E victim "well, maybe you shouldn't have been flaunting your living room like that" or to an arson victim, "did you leave the house with a gasoline can in your garage this morning?"

Euvoluntary sexual encounters can be mutually felicitous. Coercive sexual encounters not so. In between are a wide galaxy of indeterminacy, and it seems reckless to assume that even a well-meaning legislature, far from the specifics of the thing can adequately anticipate the nature and details of such encounters, much less to accurately prescribe punishments that both fit the crime and are suitable to basic common-sense justice.

Much of the world (not just the US) has a nasty problem with how the crime of rape is handled. It seems an affront to justice to stymie progress by handicapping the evolution of the common law with restrictive ex ante legislative tinkering. Our euvoluntary future deserves better.