When in doubt, don’t imprison

When I was young, we were all taught that people should not be convicted and sent to prison unless they were “guilty beyond a reasonable doubt”. Unfortunately, Americans love sending people to prison, and they violate this maxim every single day.

I’m not one of those people who romanticize prisoners. America does have a lot of crime, and people should go to prison for serious offenses such as rape, robbery, burglary, arson and murder. But they certainly should not be imprisoned for doing things that might not even be serious crimes.

In the US, activities that are illegal in one state might be perfectly legal in another. That’s OK. Federalism makes a lot of sense. It’s not 100% clear whether marijuana should be legal or illegal. It’s not 100% clear whether the age of consent should be 16 or 18. Different states have reached different conclusions, and that’s fine.

What’s not OK is sending people to prison for activities that would be perfectly legal in many other states. Remember, I’m not talking about entirely different cultures such as New Guinea or Turkmenistan, where people have vastly different values. I’m talking about moving from Chicago to Milwaukee, two industrial cities fronting Lake Michigan that are 90 miles apart. Selling pot is legal in Chicago, whereas you could be sent to prison for selling pot in Milwaukee.

In most states the age of consent is 16. But some states have 17 or 18. I have no idea who’s right, but it’s obvious that there is “reasonable doubt” as to where to draw the line; unless you think the US contains many states where lawmakers make obviously wrong decisions. But if you have that little faith in lawmakers, should we really be sending 2 million people to prison?

There’s no getting around the fact that if lots of states view an activity as perfectly legal, then there is reasonable doubt as to whether people deserve to be sent to prison for engaging in that activity, in any state. It’s not enough that juries find a person to have done some activity “beyond a reasonable doubt”, it’s also essential that juries conclude that the thing they did is a serious crime beyond a reasonable doubt.

So does that mean we must end federalism? Not at all. Rather it means that when there is doubt as to whether an activity is a crime, it should be punishable with a fine. We already do that for speeding, and many other activities where states disagree as to exactly where to draw the line.

People often make the argument that switching from prison to fines would favor the rich. Rich people could easily pay the fine for smoking pot, while the poor would struggle to do so. (Note that many people who make this argument also favor high taxes on cigarettes, which completely contradicts their argument.)

This is a bad argument for two reasons. First, in our system the rich have an easier time purchasing yachts, BMWs, vacations in St. Bart, and fancy French dinners, which is as it should be. They have an easier time paying parking tickets and speeding tickets, which is as it should be. We use fines for all sorts of offenses that are not serious enough to justify prison. Fines should reflect both the damage done by the offense, and the probability of being caught.  That’s a feature, not a bug.

Second, prison is nowhere near as egalitarian as it seems. While in theory a rich and poor drug user are equally likely to go to prison, the system has intentionally been set up to make it vastly more likely that a poor drug user will go to prison. In some cases this bias is so obvious as to be embarrassing, as back when the punishment for crack cocaine (used by the poor) was much higher than for powder cocaine. I believe that issue was recently fixed, but that was never the primary inequity.

Low-income people are much more likely to sell a small amount of drugs on the side, to get some money to support their habit. Rich people don’t need to do this. When lawmakers discovered this difference, they made the penalty for selling drugs vastly higher than the penalty for consuming drugs. This was to ensure that the upper middle class and rich people were not accidentally ensnared in a drug war aimed at the poor.  No prison for “Karen”.

From a logical perspective, the penalty for use should be higher than for selling drugs. Obviously the drug industry cannot exist without both buyers and sellers, so in that sense the two activities are equally culpable. But sellers are arguably more blameless as they are motivated by money, whereas buyers are motivated by consumption. And the typical person is more addicted to money than to drugs. That’s why professionals often give up drugs as they get older. If it’s a choice between giving up cocaine and losing a cushy Wall Street job, most people will choose to go straight.  The lure of drugs is strong for some; the lure of money is even stronger for almost everyone.

If I drive by a pot store in Orange County it all looks so “normal”.  But I always force myself to think about people locked up in some prison in Mississippi for doing the exact same thing—selling pot.  Maybe a young single mom that was pressured by her boyfriend to sell some pot, or to help with a delivery.  Can we say beyond a reasonable doubt that she is deserving of spending years in prison?

PS. Some people argue that the people in jail for drug offenses would do other bad things if drugs were legalized.  If so, it’s odd that the murder rate in America doubled after Prohibition was enacted and then fell in half after Prohibition was repealed.


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Free to build

You would think that if conservatives could agree about anything it would be zoning reform. Making it easier to build new housing would increases freedom (something libertarians like), increase economic growth (something businesspeople like), and help lower class Americans afford homes (something all conservatives like.)

Recently, however, a split has developed in the conservative ranks, as exemplified by a recent National Review article by Stanley Kurtz.  Here he criticizes the idea of having the federal government pressure cities to make it easier to build housing:

They will lose control of their own zoning and development, they will be pressured into a kind of de facto regional-revenue redistribution, and they will even be forced to start building high-density low-income housing. The latter, of course, will require the elimination of single-family zoning. With that, the basic character of the suburbs will disappear. At the very moment when the pandemic has made people rethink the advantages of dense urban living, the choice of an alternative will be taken away.

Before getting into zoning, let me acknowledge that the specific complaint here has some merit. It’s not obvious that the federal government has any business telling local governments to reform zoning.  (Is this more like schooling, where local control is best, or more like free speech and interstate commerce, where you want the federal government to guarantee certain freedoms? I don’t know.)

But Kurtz doesn’t stop with defensible complaints about the merits of federalism; he also disagrees with the claim that zoning reforms to boost density would be welfare improving.  And that argument is very hard to make.

Residents often complain about new apartment complexes because it increases traffic and brings in lower income residents.  But these arguments are very weak.  In aggregate, greater density reduces traffic.  People must drive farther in less dense suburbs.  And lower income people need a place to live.  Surely its better to allow them to live closer to job opportunities than to force them into slums, or even homelessness.

Nor would these proposals “destroy” the suburbs.  Even the NYC metro area—which is a sort of poster child for dystopian density in the minds of many zoning fans—the vast majority of the region is devoted to low density suburbs, including much of Long Island, northern New Jersey, Westchester County and southwest Connecticut.  When people hear the term ‘New York’ they think of Manhattan, but there are plenty of nice suburban communities for people who prefer that sort of living.

You might argue that removing zoning would turn American suburbs into New York City-style dystopias, but there are far to few people in America to densify more than a tiny, tiny fraction of suburbia.

And some densification is optimal.  Suppose Midtown and the Upper East and West Sides of Manhattan had not been allowed to densify, because residents who liked the formerly quiet neighborhoods had used NIMBY lawsuits to hold up development.  Think about how much less impressive New York City would be today.

The goal should not be to have all dense cities, or all sprawling suburbs, but a mix of the two.  Zoning reform helps to allow America to develop organically, according to the wishes of the public.  Each family will move to the sort of area that they prefer.

Conservatives often oppose progressive policies that are intended to help the poor.  In many cases, conservatives are correct to oppose those initiatives, as government involvement in the economy often does more harm than good.  But if conservatives were then to turn around and support government regulations that made it hard to build affordable apartments, even though those regulations reduced freedom and reduced economic growth, all because growth might inconvenience some affluent people who like things to always stay the same, then there are going to have to accept the fact that their motives will be questioned.  (I say “some affluent people”, because I favor more density in Orange County.)

Isn’t the conservative view that higher minimum wages reduce freedom and economic growth?  OK, but doesn’t zoning also reduce freedom and growth? Or is something else motivating conservative opposition to higher minimum wages?

I know why I oppose higher minimum wages, but I’m no longer confident I know why other conservatives do.

Of course many on the left oppose new low-density suburban developments.  I also disagree with that view.  So I’m not taking sides on the overall housing density debate, just the specific idea of relaxing zoning rules to allow greater density.

Some progressives have a vision for how people should live—densify.  Some conservatives have a very different vision for how people should live—suburban sprawl.  My vision is freedom.

PS.  The American Conservative has an article by Charles Marohn that points to numerous federal regulations that have subsidized suburban sprawl.  Stanley Kurtz mostly ignores those market distortions when he advocates a hands off approach by the federal government.



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Bill Whalen and David Henderson Conversation

On June 4, my Hoover colleague Bill Whalen interviewed me about my latest article for Hoover’s Defining Ideas, “Just Say No to State & Local Bailouts,” June 3. I had heard and seen a talk by Bill on Zoom a week earlier and was impressed with his deep knowledge of California politics. His show is titled “Area 45.”

The interview was really a conversation, something I prefer to a standard interview. Bill has a charming personality, with just the right amount of humor.

In the first 20 or some minutes I make the case that I made in my article, in response to Bill’s questions. But he also raised an issue I hadn’t addressed in my article: whether on grounds of emergency aid, California’s state government should be given a bailout. I said no and I said why.

Some highlights from the rest of the conversation:

23:20: Why I worry that Senate Majority Leader Mitch McConnell will go along with some kind of bailout.

36:00: My case for bonds instead of tax increases. (My first choice, of course, is budget cuts.)

37:10: Why, if the feds do bail out California’s government, I would prefer aid with no strings over aid with strings.

38:30: States going their own way on coronavirus policy and why that’s important.

41:00: Related to what’s directly above: The states as laboratories of democracy and why that’s so important.

41:27: Why economists and other social scientists are almost orgasmic about the forthcoming data.

45:20: Eat the rich.

45:40: I’m seeing it as rich people saying “eat the rich.”



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