The incentives to ignore due process of law

Matt Taibbi said he started researching his new book, The Divide: American Injustice in the Age of the Wealth Gap, in order to discover the solution to a mystery:

Why is it that, during the past 30 or so years in the United States, poverty went up, crime went down and the prison population doubled?

What his book reveals is that the rising number of arrests and jail sentences are responses not to crime, but to political and financial incentives.

The primary job of police in New York City (and no doubt other places) no longer is to respond to reports of crime.  Their job is to maximize arrests.  They have arrest quotas.

us-incarceration-and-crime-ratesThey go around looking for people to arrest.  Taibbi reported a woman going home from work who was charged with soliciting for prostitution because she allegedly makes eye contact with undercover police in a van.  He reported two young black men arrested on suspicion of being drug dealers because they were in an expensive car.

He told how police vans cruise poor, majority-black or majority-Hispanic neighborhoods, arresting people more or less at random.  Some turn out to have outstanding warrants.   Some turn out to have drugs [1] or weapons in their possession.  But many are innocent of anything that any reasonable person would regard as a crime.

Rather than admit a mistake and let them go, police often charge the others with loitering or obstructing traffic (which can consist of standing on a street corner) or failing to obey the lawful order of a police officer (which can consist of talking back or being too slow to obey).

They’re held overnight, and, if they can’t post bail—and many are too poor to post a small amount of bail—they’re kept in jail for trail.  Prosecutors ask for a guilty plea in return for a sentence limited to time served.  Which sounds like a good deal at that point, but then they have permanent criminal records.

Although there are quotas for making arrests, there are no penalties for false arrests, according to Taibbi.  Even if the City of New York is successfully sued for false arrest, the police officer who makes the arrest is not penalized, and may not even know about the lawsuit.

The more the rate of serious crime—killing, assault, rape, theft—goes down, the more effort New York police have to devote to finding reasons to arrest other reasons to arrest people.

The system of stop-and-frisk and mass arrests can only work because most people caught up in it waive their constitutional right to a fair trial.   If they ever stopped doing this, the system would grind to a halt, and police and prosecutors would have to focus on serious crime.

[Note 9/22/14.  This may be out of date so far as New York City is concerned.]

[Note 10/10/14.  Or maybe not.] 


There are financial incentives for having unauthorized immigrants in your community to use as cash cows for local government.

The.Divide.Matt.TaibbiIn Georgia, for example, a citizen arrested for driving without a license can get amnesty if he or she buys a license before going to trial.  But unauthorized immigrants, who aren’t eligible to buy licenses, go to jail for 2 to 12 days, pay fines of $500 to $1,000 and are then deported.  Generally they aren’t deported for good; as Taibbi tells the story, many find a way back, to live an underground existence in which just trying to live makes them fair game for police.

Even if I agreed, for the sake of argument, that it was both feasible and right [2] to deport all unauthorized immigrants forthwith, I would not think right to wink at their being in the country, and then treat them as an underclass who are fair game for exploitation and mistreatment.

Violations of immigration law, by the way, are not tried in regular courts; they are tried in special courts by the Immigration and Customs Enforcement (ICE) agency.   And the ICE, by the way, is bigger than the FBI, the DEA and the ATF put together.  And under Barack Obama, by the way, deportations and detentions of immigrants are at record levels.   All this is to the financial benefit of the ICE’s contractor, the Corrections Corporation of America.

The administration of public welfare law also is subject to perverse incentives.  Social workers, in Taibbi’s telling, are rewarded not for working with people to help them become self-supporting, but for uncovering and prosecuting welfare fraud.  Welfare law, like immigration law, operates outside Constitutional due process because welfare is not a right.

So it is all right for a social worker to enter a woman’s home without permission, go through her underwear and threaten to cut off her income because she has sexy underpants, which supposedly is evidence of an illicit relationship.  One woman was accused of welfare fraud because she had two toothbrushes, implying that a second person was in the house.

As Taibbi wrote, this is not a question of whether there should be welfare or, if there is, how stringent or generous should be.  It is a question of equal justice.   Welfare fraud and financial fraud are both fraud.  They both should receive the same punishment.

 [1]  In New York City, it is legal to carry a small amount of marijuana on your person, so long as it is for your personal use and you keep it out of sight.   Part of stop-and-frisk is to ask people to empty their pockets.  If if the amount of marijuana they happen to have on their persons is legal, it is no longer out of sight when they empty their pockets, and they are then subject to arrest.

[2]  In principle, the United States has as much right as any other nation to control its borders, and, in principle, nobody has the right to live in the United States without legal authorization.  But I don’t think it is feasible, and I am opposed to laws that are impossible to enforce.

Under President Obama, the rate of deportations is higher than it ever was, and yet not enough to make a dent in the number of people illegally in the United States.  What I do think is wrong is to have millions of people in the USA who are outside the protection of the law, and fair game to exploit.

Afterthought.  One reservation I have about Matt Taibbi’s accounts is whether his reports on abuse of power are typical, or worst cases.  This is not a criticism.  He is only one person can’t cover the whole USA single-handed.

But, for example, I know people here in Rochester, NY, who have had to apply for food stamps or public assistance to get by, and they have not been subject to the humiliations that Tiabbi reports for people on public assistance in California.

On the other hand, we had a case here in Rochester where a police officer ordered some black teenagers congregating on a street corner to move on, and they explained they were a high school basketball team waiting at a bus stop for a bus to take them to a game.  They showed the police officer their uniforms and other proof they were telling the truth.  He then arrested them.

After this was reported in the Democrat and Chronicle, the charges were dismissed, and, for all I know, they might well have been dismissed even without a newspaper report.  However, the chief of police refused to say that the police officer had acted improperly.

Whether or not the abuses of power that Taibbi reports are local or universal, they are cause for concern.  The Founders of the USA understood that power without a check inevitably leads to abuses, if not right away, then later. 

[Added 8/28/14]

Here are some of my other posts on Matt Taibbi’s The Divide

Above the law and below it in the USA

Matt Taibbi on impunity for rich criminals

A predatory business model based on lawbreaking

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2 Responses to “The incentives to ignore due process of law”

  1. williambearcatBill Says:

    You ought to lead a series of discussions about the details outlined in this book. I do think I will buy it.


  2. Holden Says:

    Great post. I feel for the plight of illegal immigrants. Their exploitation goes beyond just that from the cops, but also for their cheap labor.

    Society almost treats them like toilet paper. Everyone needs toilet paper, no one really likes paying for it, and after you shit on it, you flush it.


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