Thursday, October 11, 2007

The Reverse Lottery Theory of Texas Criminal Justice

Hard-liner Goliad prosecutor Terry Breen offers up a humorous "reverse lottery" metaphor for Texas' criminal justice system on the DA Association message board:
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.

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.
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.

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? F
rom 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.


Anonymous said...

The analogy is extremely flawed because with the Lottery, when you buy a ticket, you tend to learn relatively quickly whether or not you're a winner or loser. How many people would buy Lottery tickets if they wouldn't find out for months, or even years, what the results were?

So goes the criminal justice system. The most serious crimes, the ones we'd most like deterred, are the ones that take the longest to process. The more time that lapses between the actual crime and the final punishment, the less mental connection (cause and direct effect) there is between the two. If people could hypothetically be arrested, tried, sentenced, and maybe executed within a week or so of their crimes, maybe genuine widespread deterrence would take place. But since that kind of system would be ridiculous, we don't use it.

tttt said...

So, Mr. Breen is a believer in the rational choice theory that teenagers, of all people, understand the dynamics of the costs and benefits of their crimes despite the fact that their brains aren't fully developed to understand cognition. I guesss one wonders.

Perhaps Mr. Breen would have been better off saying the kid did a lousy job of shopping around for crime and comparing those costs and benefits.

Anonymous said...

When I was growing up in Milwaukee County they would expedite prosecution in high profile violent crimes such as armed robbery. I recall one case where an armed gang was burglarizing a factory and they were caught in the act (a few shots were fired but no deaths or injuries). They were convicted and sent to the prison at Waupun very quickly (maybe a week) in order to provide an example for the rest of us.

Most of us were law abiding citizens who never considered getting into a situation where we would exchange gunfire with the police. General deterrence is being applied to people who are not likely to commit crimes in the first place. My recollection was the the police thought that the most important aspect of that particular crime was that a citizen reported suspicious behavior and the criminals were caught in the act.

Editor said...

So even if someone accepts the economic argument of criminal justice, then wouldn't this approach, as 9:53 implied, actually reduce the expected cost of committing a crime to a potential offender? If you don't expect to get caught, don't expect a conviction if you're charged, and don't expect a harsh sentence if you're convicted, then what deterrant is there?

Don said...

I'm with tjdo. I've worked in and around the criminal "justice" system for 20 years, and I've never seen a criminal who claimed to have done a statistical analysis on his odds of getting caught, getting prosecuted, his likely consequences weighed against his likely gains, etc. This is the great flaw in the reasoning, or lack of it, in the deterrent arugument. But the "tuff on crime" crowd have to have something to answer the occasional flaming liberal who asks "but, um, what about these numbers, Mr. Right Wing Wacko?" The old stock answer was "Well, it's not perfect, but it's the best system in the world." But the flaming liberal got smart, and now they just repeat the question. "Yes, but uh, what about these numbers?" (such as the ones grits talks about in this post). So now the occasional "example" has a societal payoff. Sure it does.

Anonymous said...

Punishment, prisons, the realities of life for the few that "loose the lottery" need to be much more visible to the public. The idea of punishment as a deterrance might go a lot further if potential criminals knew more about the true consequences of their acts.

Minor acts of anti-social behavior often results in a wrist slap that leads the individual to believe their act is "not really that bad". This can lead to a false sense of security that is dashed when the "system" finally gets fed up and sends them to prison.

My position is to legalize most drug use and heavy fines for most minor offenses. Then provide proper due process, defense and prosecution for serious crimes. Invest in education and rehabilitation for all criminals and a real chance to become good citizens after prison.

Gritsforbreakfast said...

"The idea of punishment as a deterrence might go a lot further if potential criminals knew more about the true consequences of their acts."

That's a big part of the idea behind the restorative justice movement.

And Don, a flaming liberal? I'm the one that said go buy a gun! ;)

Anonymous said...

I witnessed an extreme lottery loser in Denton County. After all, it is all about the money. As one of the unaware general public, I had no idea of the ways of the criminal justice system in Texas. Frankly, I was much happier before I had a clue and I expect so is the rest of the population.

Unknown said...

Yeah, but it gives you a nice warm feeling to delude yourself into believing that these long sentences are mandatory and that no one escapes justice. This feeling lasts a lot longer when you live in a protected gated community and don't have crimes committed daily that go unpunished. It also helps when the "good guys" aren't constantly doing fishing expeditions on one run per month as a suspected criminal or breaking into your neighbors' homes on false pretenses. Of course it helps when those in the gated communities have talk show hosts who blame their higher taxes on social welfare programs and illegal immigrants - without any hard statistical data to back that up. Oh, it also helps if you are actively discouraged from actually thinking about the cause of these problems with mass media telling you what the problem is [hint: it's "those" people].