13 June 2016

Inconsistency Is Not Conspiracy

A thing I see a lot--from people of all political stripes--is a tendency to frame inconsistencies in the criminal justice system as a conspiracy of some sort. Now sometimes these sorts of criticisms are valid: for example, if two people get radically different sentences for similar crimes, that is indeed a bit questionable. I'd urge you to avoid generalizing from one example and instead look at it statistically*, but that's not categorically wrong.

What does bother me is when people compare the sentences for unrelated crimes and conclude that there's some sort of conspiracy to hurt people or let others off easy. (You see this all the time in the context of social justice issues.) But that makes the very, very foolish assumption that our laws are consistent and well-thought-out. Humans don't think consistently. We're really really bad at coming up with values ex nihilo. If politicians were comparing crimes side by side then we could reasonably expect consistent sentences, but they almost always aren't. Even when a bill considers different crimes, the length may be prohibitive.

This is before we realize that a significant fraction of criminal legislation is symbolic, not designed with the idea that people will be imprisoned or killed for breaking it. Politicians aren't trying to craft an elegant and consistent legal code. They're trying to kiss and cover enough ass to avoid getting primaried and then beat the other guy come November. This is one of the downsides of representative democracy that no one has yet been able to patch. If you have some ideas beyond "term limits", I'm all ears.

Look, politicians are not optimizing for legislative coherency. Ron Paul got painted as a radical in large part for voting consistent. Judges nominally are trying to do that, but they're both handicapped by mandatory minimum sentences and failures of human psychology (see Thinking Fast and Slow for some horrifying research on how lunch breaks affect judges' leniency in granting parole).

I wish I knew what to do about this, but I don't. All I know is that ignoring the real problem isn't going to help the situation.

*Both of those are Scott Alexander articles, so let me just throw a third one at you where he does just that when looking at race and the criminal justice system.