A 17 year old def. complained to his P.O. that he was being punished far harder than his equally culpable co-def.s, who were just a few mos. younger than he. They were in the juvy system, and nothing much happened to them, while he was being packed off to bootcamp, and a long probation with lots of restrictions, etc, etc.That's a funny description, and it's a pretty accurate rendition of how the justice system really works, and the values and assumptions that underlie it. Certainly he's right that the system isn't solving most crimes or getting justice for most victims. But a lot of the other assumptions behind the metaphor are demonstrably wrong.
So I told the P.O. to explain to his probationer, that Texas uses the Reverse Lottery System of criminal justice. In a regular lottery, you pay a $1.00 for a ticket, and you have a 1: 1,000,000,000 chance of winning millions of bucks. Most lottery participants are losers, but someone always win. And the example of that winner keeps all the others buying tickets each week.
In the Texas Criminal Justice Reverse Lottery, you enter the lottery by committing a crime. Chances are you won't get caught, or if you are caught, you won't be prosecuted, or if you are prosecuted, you'll have your case dismissed or you'll get an acquittal, or you may get a very easy sentence to a lesser included crime. But every now and then, someone enters the Texas Criminal Justice Reverse Lottery, and they are the Big Time Loser. And its those Big Time Losers who encourage others not to enter the Texas Criminal Justice Reverse Lottery.
I told the P.O. to explain to his young probationer that he was The Big Time Loser, and while losing the lottery is a bummer for him, it has a lot of social utility for the rest of us, and hopefully this will cause him some degree of comfort.
What is it about the system that generates a "lot of social utility" in this prosecutor's view? Pure deterrence: It "encourage others not to enter the Texas Criminal Justice Reverse Lottery." But that assumption is utterly undermined by the fact that punishment is neither certain nor equally dispensed.
In any lottery, people play the odds. And if, as Breen himself says, "Chances are you won't get caught, or if you are caught, you won't be prosecuted, or if you are prosecuted, you'll have your case dismissed or you'll get an acquittal, or you may get a very easy sentence to a lesser included crime," then by his own logic, making the occasional hapless teen the "Big Time Loser" of the day will have little effect on others' decision to enter the lottery.
Want empirical proof? From 1978 until 2004, the Texas prison population increased 573% (from 22,439 to 151,059), while the state's total population increased just 67% (from 13.5 million to 22.5 million). So why, with a population of incarcerated "Big Time Losers" that leads the planet, is Texas' crime rate still more than 20% higher than the national average? I'll tell you why: Because the "social utility" of mass incarceration has been vastly overrated by folks like Mr. Breen.
Another faulty assumption is that any felony sentence is "very easy." Try telling that to anyone with a felony conviction who's looking for a job. Felons in Texas face life-long consequences for even a single felonious mistake, and the Legislature has created 2,324 separate felonies to chose from. Breen's metaphor underestimates the harm done by the system and overestimates its benefits by far.
So as a full-employment system for prosecutors and others in the justice system, the Reverse Lottery theory works fine. As a public safety strategy, though, you might be better off buying a lottery ticket. Or a gun.
UPDATE: Simple Justice riffs on this topic.