Ulrich Baer is Destroying America

Who is Ulrich Baer, you ask? He’s a university professor and administrator at NYU. According to his faculty web page, part of his job is to “strengthen NYU’s ongoing effort to create the most diverse and inclusive community of outstanding faculty, students, and staff.” Put another way, he’s one of the high priests of the diversity cult.

This may seem like an extreme characterization, but it’s accurate. If you follow this blog, you may remember that I unsubscribed from the New York Times after they published a whole host of op-eds that were not fit for publication. The one that pushed me over the edge was Baer’s argument in favor of censorship.

This morning I watched the recording of a discussion held at Kenyon College between Baer, Charles Cooke, editor of National Review Online, and Stephanie Fryberg, a psychology professor. The topic was free speech. Baer and Fryberg both argued that there need to be more limitations on free speech, while Cooke argued that the robust speech protections in our law ought to be maintained.

Fryberg’s line of argument was the stuff you’d expect from a left-wing academic who is committed to creating social justice at all costs. Native Americans such as Fryberg need to “develop a voice” in isolation from oppressive speech from more privileged groups. If they aren’t given space to develop in this way, then they’re effectively being deprived of their free speech rights. This is a stupid argument. None of the greatest minority advocates in U.S. history relied on censorship of the oppressive majority to “find their voice.” Figures such as Frederick Douglass, Martin Luther King Jr., and Thurgood Marshall rose to the challenge of an overwhelmingly hostile majority and worked to enact justice. But today’s minorities need to be shielded from bigoted words? Absurd.

But as bad as Fryberg’s arguments were, Baer’s were even worse. At least she was making claims, albeit dumb ones. Baer, on the other hand, refused to say anything substantive, which demonstrates the weakness of his position. Cooke would repeatedly point out that no one person is competent to decide what kind of speech constitutes hate speech. But then Baer would respond that someone is, although it may not be him or anyone else on the panel. It’s not particularly reassuring for the person making the pro-censorship argument to say, “I’m not sure who is competent to censor, but there’s gotta be someone out there to do it, right?”

Later, Baer was pressed by an audience member to be more specific about what kind of speakers he thinks should not be allowed to speak on university campuses. This was in response to claims from Baer that universities ought to be more discerning when it comes to giving platforms to speakers. He basically responded that he could name names, but he wouldn’t do so in order to avoid dignifying the people by acknowledging their existence. Of course, the consequence of his refusal to say just who he thinks should be censored is that we actually have no idea what his position is—maybe he just wants to keep David Duke off of campuses, but maybe he also thinks that Charles Murray and Ben Shapiro are hateful bigots who should be kept as far away from impressionable young minds as possible.

And that’s the problem with these anti-free speech arguments. When taken to their logical conclusions, they quickly lead to absurdity. I can imagine Baer as a character in a Socratic dialogue. Socrates pushes him into a corner, but Baer just keeps doubling down on his claims without clarifying them or supporting them until he angrily storms away, saying something like, “I don’t know how to answer you, but you’re wrong, and I’m right.” Eventually, of course, he will conspire with his fellow citizens to have Socrates killed, because that’s what you do when people are “corrupting the youth.”

The utter spinelessness of people like Baer is what has allowed destructive illiberal tendencies to flourish in our universities.  By refusing to talk specifics, they obscure the debate, making it harder to see what’s really going on. And what’s really going on is that people are becoming increasingly pro-censorship, albeit for different reasons than in the past.


Apology to Jess Mathews and the EST

After talking to people and taking another look at all the things I said on Twitter and on this blog, I’ve realized that I was really cruel to the EST staff and especially to Jess. I deleted the post. I’ve deactivated my Twitter account. I’m taking a break from social media to think more about what possesses me to say such awful, unkind things to people. Sorry to everyone that I put down.

Jess has been very gracious to me, and I’m thankful for that. I would certainly not have been so gracious if someone else had done the same to me.

To whoever reads this: please pray that I stop being such a shitty person.

Why Sexual Selection Matters and Why Cordelia Fine is Wrong

Yeyo's Corner

Last week The Royal Society awarded the polemic writer Cordelia Fine with their Science Book of the Year award for “Testosterone Rex”. The central thesis in the book is that the behavioral differences between men and women are better explained by culture than by testosterone and that the theoretical framework that evolutionary scientists regard as the root cause of several of the robust cross-cultural sex differences we see, namely Bateman’s principle and sexual selection, have been largely debunked, at least when it comes to humans. Since this runs pretty much contrary to the broadly held consensus in evolutionary biology the choice has naturally elicited criticism from both biologists and evolutionary psychologists.

Ad Hoc Hypotheses and Occam’s Razor

In her quest to deny that biology is responsible for sex differences in behavior Cordelia Fine has a huge advantage, she benefits from that fact (which the award has made clear) that…

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All Immigrants, or Only Some?

The NYT has an op-ed today about DACA and immigration more generally. The argument is that pointing to the economic benefits that immigrant communities provide to America distracts from the more important issue in the immigration debate: kicking or keeping people out is inhumane. It’s not enough to oppose the rescission of DACA because it’s bad policy. You have to oppose it because it’s immoral. Masha Gessen writes:

But what’s wrong with the decision to discontinue DACA is that people — not workers — will be deported. Lives — not careers — will be shattered. The problem is that it’s inhumane. As long as politicians consider it necessary to qualify the victims as ‘hardworking’ or ‘talented,’ they fail to stand up to the administration’s fundamentally hateful immigration agenda.

To a degree, I agree with Gessen’s point, especially as applied to immigrants fleeing terrible conditions at home (such as refugees). At the same time, however, I don’t think it’s necessarily inhumane for us to be selective as to whom we allow to enter the country. People who want to come here have to earn a place here by making a positive contribution to our society. Some people cannot do that. It’s reasonable to say that we don’t want those people here. Indeed, I think most people on both sides of the political spectrum would agree with me that we should prefer immigrants who have something of value to offer to us to those who don’t.

Here’s a way of thinking about this: Suppose you operate a business and you’re looking to hire some employees. You would obviously prefer to hire people who are qualified and skillful over people who wouldn’t be able to do the job you need done. And if you happened to hire someone incompetent, you would probably want to fire them. Is it immoral to ignore the adverse effects that firing or refusing to hire an incompetent person will have on his livelihood? Perhaps that person has a family to support. What about his children? Are you a monster for putting those concerns aside and doing what’s in your economic interest?

If Gessen is right, then you are. It is unacceptable for you to view your employees and potential employees merely as workers. You need to consider their personal life and the circumstances they face. Unfortunately, this means that you cannot choose to hire only competent people, nor can you fire incompetent people, and you will likely go out of business.

Gessen says that we have adopted a reductive and harmful way of viewing people: “When we agree to talk about people as cogs, we lose our humanity.” I agree that it’s reductive to focus exclusively on economics when discussing immigration, but every way of discussing people is reductive, because people are too complex for us to comprehend. Moreover, I take issue with her assertion that discussing certain groups of people in economic terms causes us to lose our humanity. People have an economic aspect. Acknowledging that does not negate all the other facets of their humanity.

For Gessen, economics shouldn’t even be a part of the equation. The way she discusses it, her opponents believe it should be the only part of the equation. Fortunately, we don’t have to choose between these two extremes. We can consider the whole person when deciding who to let into our borders, including but not limited to their potential economic contributions. In fact, I’m pretty sure that this is what most of us want: holism. This way, we can look after our own interests while also helping those who most need it.

“Only 2-10% of Reported Rapes are False”

I’m not going to explain why the statistic in the title is wrong. This blog post does a much better job than I possibly could at that. Instead, I’m going to explain why the false-rape statistic, regardless of its veracity, is utterly irrelevant to the way we handle sexual assault accusations.

I see people tout this statistic in response to the (true) claim that the Obama Dept. of Education’s Title IX guidance denied due process rights to those accused of sexual assault. Supposedly the low false-reporting rate means that due process protections are less necessary. This is nonsense.

Even if it is true (and it’s almost certainly not) that only 2-10% of rape accusations are false, those accused should be presumed innocent until proven guilty. For all we know, they could be part of that 2-10%. The only way to find out for sure is to thoroughly investigate the claim.

Here’s a way to think about the problems with the argument. You can rephrase the false-reporting statistic roughly as such: “90-98% of accused rapists are actual rapists.” Does it follow from this that we should treat 100% of people accused of rape as if they are actual rapists, even in the absence of proof? Surely not! Rape claims should obviously be taken seriously, but that doesn’t mean we should do away with the presumption of innocence.

Remember that to presume that a rape claim is true in the absence of evidence is to presume that somebody is a rapist in the absence of evidence. Such a presumption is unjust, because not all people accused of doing terrible things actually did terrible things.

Opposing DACA: More than Just Prejudice?

Everyone is buzzing about Trump’s decision to end DACA (Deferred Action for Childhood Arrivals). The policy was put into place by Barack Obama, shielding undocumented immigrants who arrived in the country as children from deportation, if they meet certain conditions. Congress had repeatedly failed to enact legislation (the DREAM Act) that would accomplish basically the same thing, so Obama took matters into his own hands.

I think DACA’s policy goals are good. But I’m skeptical of its constitutionality. Because of that, I don’t necessarily disagree with Trump’s decision to end it, but I do think that it is necessary for Congress to step in and pass the DREAM Act like they should have long ago.

Of course, there will always be those who oppose anything resembling amnesty, preferring to deport thousands of people who have spent most of their lives in the United States to countries they don’t even remember. For some people, getting rid of illegal aliens is an end in itself, worth doing regardless of the costs, both human and monetary.

I think these people are either dreadfully misinformed or blinded by prejudice. Their desire to get rid of illegal aliens prevents them from asking the following important question: Is it really in our interest to get rid of all the DREAMers? Given that the policy requires that applicants be of “good moral character,” it’s not like they are running around committing crimes. If they did so, they would lose their protected status. Most of them are educated and employed, making a significant contribution to the economy. Moreover, many of them have been here so long that they’re basically American in every way except in the eyes of the law.

I have yet to see a good nonlegal argument against DACA. Generally, such arguments seem to depend on outright lies regarding the beneficiaries of DACA. References to crime and refusal to adopt our values just don’t make sense when discussing this particular policy, because the policy itself places requirements on those it shields from deportation. It’s not a blanket amnesty. It’s conditional forbearance.

Which is why it’s hard not to think that certain of DACA’s opponents are motivated more by prejudice than by anything else. For example, Evangelicals for Biblical Immigration (yes, you read that right) released a letter explaining why they are in favor of rescinding DACA.

It is easier to speak publically of mercy, as we, and many, do. And, while loving mercy, who will also stand for justice to those citizens who cannot find a job due to cheaper foreign labor? Who will speak of the real cost of illegal immigration to our states? And while many non-citizens are good neighbors, who will stand for justice for Americans victimized by people here illegally who do not uphold our values and laws? And who will prevent more needless crime and death?

This is basically saying, “We should get rid of DACA because the DREAMers are stealing our jobs, committing crimes, and burdening our government.” But there is no reason to think that any of this is true. Indeed, the data suggest that deporting DREAMers would seriously hurt the economy, and that they have a low crime rate.

So what’s really going on here? Are the signatories to the EBI letter just ignorant, or is there something more sinister beneath the surface? I don’t like attributing unsavory motives to anyone without good reason. But I just can’t see any compelling reason to adopt the position that EBI has adopted. It’s one thing to oppose the abuse of executive power. But opposing reasonable protections for people who themselves have done nothing wrong is something else entirely.

The Pathetic “Theology” of the Denver Statement

Lately, the Nashville Statement, which affirms the traditional view of marriage as a covenantal lifelong union between a man and a woman, effected by God, has drawn condemnation from many sides. The condemnation is unsurprising, given that, in mainstream circles, opposition to same-sex marriage is considered tantamount to denying the humanity of gay people. Indeed, it’s not even surprising that some are condemning this clear statement of historic doctrine from within the church. A clear statement of what motivates Christians to oppose the Nashville Statement can be found point-by-point in the Denver Statement.


Christians at the dawn of the twenty-first century find themselves living in an exciting, beautiful, liberating, and holy period of historic transition. Western culture has embarked upon a massive revision of what it means to be a human being by expanding the limits and definitions previously imposed by fundamentalist Christians. By and large, the spirit of our age discerns and delights in the beauty of God’s design for human life that is so much richer and more diverse than we have previously understood it to be. Many deny that God created all human beings for God’s glory, and believe that God’s good purposes for us are limited to those whose personal and physical design is cis-gendered, heterosexual, and socially acceptable expressions of male and female. However, many Christians now understand that binary and backwards thinking excludes a large and important part of God’s beautiful plan for God’s people. The pathway to full and lasting joy through God’s good design for God’s creatures is clearly inclusive of a variety of identities of gender and expressions of sexuality that have previously been denied by shortsighted and limited thinking, teaching and preaching that has ruined lives and dishonored God.

I find it hard to read it without cringing. “Fundamentalist Christians” have supposedly imposed a narrow-minded view of human nature on western civilization. Supposedly “[m]any deny that God created all human beings for God’s glory.” Support for traditional views of marriage and gender is just “binary and backwards thinking.” Refusing to support gay marriage “excludes a large and important part of God’s beautiful plan for God’s people.”

This paragraph, like much of the rest of the statement, is filled with empty rhetoric and blatant mischaracterizations of the positions espoused by the Nashville Statement. Indeed, the Nashville Statement specifically says that ALL people bear the image of God and can live fruitful lives in his service. And while it might sound nice to assert that same-sex unions are a beautiful part of God’s plan, assertions without scriptural support are worthless. When you’re arguing that the millennia-old doctrines of the church should be revised, you need something more than inane slogans.

Article 1

WE AFFIRM that God has created humanity out of love and for the purpose of love.

WE DENY that God intends marriage as a gift only to be enjoyed by those who happen to be heterosexual, cis-gendered and fertile.

No disagreement on the affirmation, but the denial misses the point. The question is not whether marriage is for some people and not others. The question is what marriage is. Plus, how can you possibly infer from the Nashville Statement that infertile people shouldn’t be allowed to marry? Either the people who wrote the Denver Statement have very poor reading comprehension or they are deliberately mischaracterizing the Nashville Statement. Not a good look.

Article 2

WE AFFIRM that God created us as sexual beings in endless variety.

WE DENY that the only type of sexual expression that can be considered holy is between a cis-gendered, heterosexual, married couple who waited to have sex until they were married. But if you fit in that group, good for you, we have no problem with your lifestyle choices.

Not much to say about this except that it seems to leave the door open to polyamorous relationships. I wouldn’t be surprised if these people supported such relationships, to be frank, because I think they have a strong commitment to denying any and all normative views of human sexuality in favor of an “anything goes as long as there’s consent” mentality.

Article 3

WE AFFIRM that God created Adam and Eve, the first human beings, in God’s male & female image, and that all human beings share this image of God in common but express it differently in body and spirit.

WE DENY that we as human beings can fully conceive of the glory of God’s image or rightfully believe our language can define its limits. Therefore, we deny those who do not conform to society’s gender norms are outside of some kind of “divine plan”.

Here, the statement attempts to hide its radical revision of long-standing doctrines under the guise of epistemic humility. Who are we to make normative claims about human nature? After all, we’re limited beings. This is a stupid argument. Refusal to take a positive stance on human nature is itself a positive stance on human nature. In effect, the Denver Statement is saying that we ought to adopt their ill-defined, amorphous concept of human nature instead of the one we’ve had for thousands of years. They feign intellectual humility, but their hubris is obvious. We, unlike all the patriarchs of Israel, the church fathers, and all the saints, are humble and enlightened enough to acknowledge that we shouldn’t make normative claims about human nature.

Article 4

WE AFFIRM that the glorious variety of gender and sexual expression is a reflection of God’s original creation design and are aspects of human flourishing.

WE DENY that such variations are a result of the Fall or are a tragedy to be overcome.

Not much to unpack here. Just an unsupported assertion.

Article 5

WE AFFIRM that the biological capacity for human beings to reproduce is a glorious wonder and that humanity continues to discover the gender and sexual diversity with which God has created humans.  

WE DENY that gender is always linked with biological sex characteristics, and we deny that those whose bodies contain physical or psychological realities outside of the “norm” need curing or reparation.

The thing is that there’s no reason why this logic shouldn’t extend beyond sexual orientation and gender identity. What about people with genetic defects? Do they not need “curing” or “reparation”? Should we consider all variations to be normal so that deviation from the norm is logically impossible? After all, norms exclude. Progressives both inside and outside the church are making war on the very concept of normality for this reason.

Article 6

WE AFFIRM that the bearing of God’s image occurs in every glorious genital and chromosomal variation found in the human race.

WE DENY that any variation in the human body exempts one from living a joyful and full life.

Dear people who wrote the Denver Statement: You’re not special. We all believe this. Although I’d drop the “glorious.”

Article 7

WE AFFIRM that there is no longer male or female but all are one in Christ Jesus our Lord.

WE DENY any self-conception that presumes one is capable of knowing God’s holy purposes for other people, and that such self-conceptions can be consistent with the Gospel of grace, love, and mercy as demonstrated in holy scripture.

Yes, it seems very wise to take the Apostle Paul out of context to imply that sex and gender are no longer meaningful concepts. And also, I may not know what God’s plans are for other people, but that doesn’t mean I can’t make any claims whatsoever about the moral status of choices they might make. Killing, lying, and stealing are bad. Saying so is not me being arrogant or presuming that can know God’s purposes. It’s just me making a moral claim, much as the Denver Statement is making a moral claim here.

Article 8

WE AFFIRM that people who experience sexual attraction for the same sex may live a rich and fruitful life pleasing to God through faith in Jesus Christ.

WE DENY that sexual attraction for the same sex is outside the natural goodness of God’s original creation, or that anything puts a person outside the hope of the gospel.

Agree 100 percent with the affirmation. The grace of God extends to people of all kinds who struggle with the brokenness of the world in all conceivable ways. But your denial suggests that the Nashville Statement says that people can be put outside the hope of the gospel. Which makes me really angry at you, because that’s obviously not what the historic Christian doctrines teach. Anyone can be saved, not because people aren’t actually so bad, but because the saving power of Christ is greater than any other power that exists.

Article 9

WE AFFIRM that sin distorts all aspects of human life.

WE DENY that  human beings can escape sin by simply upholding a particular doctrine or lifestyle.

Again, I tell you: You are not special. This is the teaching of the Nashville Statement.

Article 10

WE AFFIRM that it is for freedom that Christ has set us free, and while we believe in the full inclusion of all people into the body of Christ (here we stand we can do no other), we cannot bind the conscience of other Christians.

WE DENY that it is sinful to approve of queer identities and that such approval constitutes an essential departure from Christian faithfulness and witness.

We’re free to hope for “full inclusion of all people into the body of Christ,” but not everyone gets to be part of the church. The church has to punish people living in habitual sin. If you think that opposing same-sex marriage and rejecting prevailing views on gender identity is sinful, then you need to sanction the people who are doing so.

Article 11

WE AFFIRM our duty to love at all times, including when we speak to or about one another.

WE DENY any obligation to speak in such ways that dishonor God’s image-bearers.

Article 12

WE AFFIRM that the grace of God in Christ is sufficient for this day.

WE DENY that the grace of God in Christ is something that must be supplemented by works, piety or doctrine.  

I’m happy that we actually agree on a fair number of points, but I’m disheartened because the inclusion of such points indicates that the Denver Statement drafters don’t think that we agree on them.

Article 13

WE AFFIRM that the grace of God in Christ enables sinners to forsake prejudice and see such prejudice as our own and not as God’s.

WE DENY that the grace of God in Christ sanctions self-righteous assertions of absolute knowledge of God’s will.

Holy crap. Apparently adherence to millennia-old doctrines about marriage and sex constitutes “self-righteous assertions of absolute knowledge of God’s will.” What a straw man. No one claims to have absolute knowledge of God’s will. The Nashville Statement makes a relatively modest claim that has extensive historical precedent and philosophical support in addition to scriptural support.

Article 14

WE AFFIRM that Christ Jesus has come into the world to save sinners and that through Christ’s death and resurrection forgiveness of sins and eternal life are available to every person; this is a supreme treasure.

WE DENY that God is a boy and has actual arms.

So the affirmation is pretty similar to the one from the Nashville Statement, except that it excises the need for repentance and trust in Christ. This change raised my eyebrow. I don’t even know what to make of the denial. They’re probably trying to make some point about taking scripture too literally. Who knows.

Article 15 (this one is just ours)

WE AFFRIM [sic] that the church has often been indistinguishable from the dominant culture in the ways in which it has sanctified oppression and bigotry towards historically marginalized and demonized people groups, of which the LGBTQ+ community is one.

WE DENY any ideology, theological or otherwise, that results in the further marginalization, rejection, dehumanization, and overall suffering of LGBTQ+ individuals.

If you remove the ideologically laden language, then I wholeheartedly agree with this final statement, and I think that signatories of the Nashville Statement would, as well. The church should teach that God’s sovereign grace can save anyone from anything. However, refusing to affirm same-sex unions and the new gender theory is not oppression or bigotry. I do not need to affirm everything about a person in order to love that person as myself, just as I do not need to affirm everything about myself. Indeed, there are parts of me that I wish Christ would destroy now, and that I expect him to destroy in the hereafter when my body is resurrected and glorified. Whatever corruption exists in my body or soul, I bear the image of God. This goes for everyone.

I find it extremely disheartening that Christian advocates for same-sex marriage and the new gender ideology have adopted wholesale the strategy of the broader culture. They use the same rhetorical tropes and tactics, laying it on thick with talk of “marginalization” and “oppression,” suggesting that anyone who disagrees with them is just being bigoted. Ironically, the Denver Statement decries the church’s failure to oppose the dominant culture when that culture is oppressive to certain groups, but fails to recognize that it is little more than a Huffington Post article with some Christian jargon sprinkled in. Love is not the only thing that is supposed to distinguish the church from the world. We’re also supposed to be holy.

Racism: an Individual or Structural Problem?

Obviously, it’s both, to some degree. But I’ve been thinking lately about which way of looking at the problem is more helpful. Is racism fundamentally individual or institutional? I lean towards saying that individual racism is the cause of institutional racism, and that structural remedies can only do so much before they start doing more harm than good. After all, institutions are created by people, and not the other way around.

The post-WWII housing market was heavily segregated, in large part as a direct result of government action. Without government support, the rapid suburbanization of America could not have taken place.  Developers created suburbs with the help of the government and then intentionally excluded African-American home-buyers. This is an obvious example of institutionalized racism. However, this racism had its roots in individual attitudes and prejudices. Developers believed that allowing black people to live in a suburb would lower property values because of aggregate individual racist beliefs.

In large part, this turned out to be true, which is why we ended up with the phenomenon of “white flight.” Even when the government started to prohibit people from engaging in housing discrimination, neighborhoods didn’t integrate. When black families started to move into suburbs in any significant numbers, white families moved away in droves. The racist preferences of a critical mass of individuals prevented the structural remedy from being effective.

The lesson to learn from this is that even a neutral system can result in racist results if enough of the people participating in that system harbor racist attitudes.

So we’re confronted with a problem. How can we eliminate racism if removing structural biases doesn’t suffice? The problem is made virtually intractable if by “we” we mean the State. There just isn’t a way for the government to modify individual attitudes and preferences that doesn’t effectively amount to government indoctrination. That’s a very dangerous road to go down. The State can introduce structural biases with the aim of counteracting individual biases (like affirmative action), but this can sometimes breed racial resentment or reinforce racial stereotypes, exacerbating the root problem.

I think this is why some conservatives tend to be more skeptical of government attempts to eliminate racism. The problem is too complex for the government to solve, because racism isn’t just about warped institutions, it’s about warped souls. The government can reform institutions, but it cannot reform souls. The solution to the root causes of racial injustice has to lie outside the state.

On the other hand, progressives tend to emphasize the structural nature of racial injustice. I think they do so because this implies that racism is really not that hard of a problem to solve. All you have to do is dismantle the oppressive systems. You are made racist not by your individual prejudices, but by your opposition to dismantling the oppressive system. This way of thinking is a product of misguided Rousseauian optimism, the belief that, in the absence of society’s corrupting influence, we are naturally good. Such optimism regarding human nature, along with the scapegoating of “society” that tends to accompany it, is far more popular than it ought to be.

It’s become common in recent years for people to promote a new definition of racism that assumes the primacy of structural bias over individual bias. Supposedly, racism is about power, and not about prejudice. Thus, black people cannot be racist against white people, and all white people are necessarily racist against black people. This redefinition of “racism” is a clever move by the progressives, as it pushes us toward state-centered solutions to racism even though they won’t work. As such, we should resist this definitional change. The solution to racism isn’t the destruction of all of our liberal institutions any more than the cure for cancer is suicide. But we can’t continue to affirm this simple truth unless we recognize that racism infects souls before it infects institutions.

Book Review: “The Collapse of American Criminal Justice”

One of my former professors, who has recently made criminal justice reform one of his main research areas, recommended that I read this book, The Collapse of American Criminal Justice, by William Stuntz. It’s a must-read if you care about criminal justice reform. Whereas it’s become popular to claim that our problems with mass incarceration are rooted in the war on drugs, Stuntz demonstrates unequivocally that the problems in the system go much deeper and much farther back. A combination of misaligned incentives between the many actors involved in the system, the Supreme Court’s ill-advised decisions tightening procedural requirements, and increasingly broad and rigid criminal statutes all combined to produce the nightmare we have today, in which our incarceration rate dwarfs that of any other liberal democratic nation in the world.

Stuntz provides a lot of helpful economic analysis. One of the main takeaways from the book is that the way costs are distributed in the criminal justice system encourages incarceration rather than crime prevention. Localities pay for their own police forces, while states pay for prisons. It is thus more cost-effective for local prosecutors to punish crime than to prevent it, as their counties do not bear the cost of punishment. Stuntz’s solution is to shift some of the costs of policing to the state, as well as to shift some of the costs of prison maintenance to localities. This way, localities have more of an incentive to prioritize prevention than punishment.

After all, there is an inverse relationship between the number of police officers active in a county and the number of incarcerations, which is at least a proxy for violent crime. Having more police around will make neighborhoods safer while also reducing the need to incarcerate such large swaths of our population. Arguably, increasing the presence of police in areas that most need policing will help to improve the quality of policing, as well. Strong police presence deters crime and gives officers less reason to fear for their lives (which is the most common defense offered by officers who kill innocent people).

Perhaps the most eye-opening part of the book for me was Stuntz’s discussion of the Supreme Court’s rulings on criminal procedure, such as Mapp v. Ohio, Miranda v. Arizona, and Gideon v. Wainwright. In effect, Stuntz argues, these rulings did little to secure the substantive rights of prisoners as a result of their misplaced emphasis on procedures. The Court’s rulings made conducting trials prohibitively expensive and less accurate in most cases, leading to the rise of plea bargaining in most or all cases. By tightening procedural requirements, the Court incentivized the abuse of plea bargaining that’s partially responsible for our overcrowded prisons. Moreover, the tightening of procedural requirements by the Court helps guilty and innocent alike, simultaneously making it harder to distinguish between the two, which is one of the most important functions of the justice system.

The shift away from trials and toward plea bargains was facilitated by the increasing codification of the criminal law. As Stuntz shows, criminal law used to be primarily judge- and jury-made. Locally selected juries had broad power to acquit defendants for just about any reason. This gave localities more control over the dispensation of justice in their communities. The vagueness inherent in unwritten common law gave room for communities to decide for themselves how to deal with crimes.

Nowadays, our criminal law is mostly found in statutes. Crimes are far more precisely defined, giving juries and judges less leeway in deciding who is to be punished and who is to be let go. Moreover, codification has made it possible for individuals guilty of only one criminal act to be charged with many crimes, each carrying its own sentence. The result is that criminal defendants have more incentive to accept plea bargains, even if the bargain includes a potentially excessive term. For a relatively minor criminal act, one might be put in jail for years and years as a result of the multiplication of criminal charges.

Stuntz doesn’t seem particularly optimistic about the possibility of reform. He suggests, however, that it’s possible. Reading the book has made me want to be a part of such reforms. I’m not sure what kind of involvement that might be.

Posted in Law