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Home | Blog | The Tragedy of the Commons in the Courtroom

The Tragedy of the Commons in the Courtroom

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Tags Legal SystemTaxes and SpendingPolitical Theory

06/22/2017

As many who follow websites like mises.org already know, Ross Ulbricht was sentenced to life in prison for running a dark web drug marketplace known as Silk Road under the pseudonym Dread Pirate Roberts. After receiving his sentence — a deliberately harsh ruling for a man barely in his thirties — Ulbricht’s defense team began to work on his appeal. On May 31, Ulbricht lost the appeal, meaning that his life sentence will stand.

To libertarians, this is a tragedy. Even for many supporters of the Drug War or at least some regulation of narcotics, Ulbricht’s punishment was far from proportionate to the crime. But the consequences of Ulbricht’s ruling and the underlying problems with our justice system that allowed it do not end there. The Drug War has created an environment for our justice system that frequently places people in a position where they are pressured to go to jail, even if they’re innocent, for fear of suffering an even greater sentence if they choose to fight for their freedom, and Ulbricht will now serve as the go-to example for defense attorney’s warning clients to avoid going to jury trial at all costs.

The Justice System as a Public Good

Because the government holds a monopoly on the justice system in the United States, courtrooms are treated as public goods. For public goods, costs are socialized, so there is no individual cost to using this resource. From the perspective of the criminals, of course, this seems like a no-brainer — a defendant is hardly going to pay the cost of his own conviction. But the socialized costs of courtrooms remove the incentive to economize for two specific groups of people: legislators and police officers.

Legislators have an incentive to flood the courtrooms because if they want to get elected, they need to appear “tough on crime.” The product of this incentive is legislation geared toward continually creating newer infractions or criteria for arrest that signal to the voters that you, the politician, are going to clean up the streets. Naturally, the focus of these infractions tends to be on non-violent crimes because the scope of violent crimes is narrower and has long been an established part of criminal law. But any new criteria for arrest means more people being funneled through the criminal justice system, and the costs are borne by the citizenry.

A corollary of the “tough on crime” image is the pressure for police precincts to keep up arrest rates. If arrest rates are low, it looks to the layperson like they are failing to do their jobs. Few people actually make a conscious distinction between the different types of crimes people are arrested for, so the general assumption is that the more people are arrested, the safer everybody else is. Thus, the pressure is created for police to not merely make arrests, but to make easy arrests. Finding a drug dealer or a prostitute to arrest has a lower cost in time and energy than hunting down a rapist or murderer, at least in part due to the fact that there are fewer violent criminals in general. So more arrests again mean that more criminals are being shuffled through the courts.

A Game Theory Analysis of the Justice System

In The Economic Anatomy of a Drug War, David Rasmussen and Bruce Benson offer an insightful analysis regarding the effects that these incentives have on the court and prison systems.

Because individual police and legislators have nothing to lose and everything to gain from sending people through the court system, the courts became incredibly overcrowded. The incentive this creates for the legal teams and the judges is to work together to get people in and out as quickly as possible. Because jury trials are lengthy and expensive, plea bargains are the go-to option.

Because defense attorneys, prosecutors, and judges frequently deal with each other, their court interactions are essentially “repeat games,” meaning that without directly colluding, they learn how to tacitly appeal to each other’s interests to maximize their own gains. Unfortunately for the defendant, they are engaged in a “one-shot game,” and are thus at the mercy of the incentives for the repeat players.

The judges incentivize defense attorneys to encourage their clients to accept plea bargains by offering significantly lighter sentences to avoid time consuming jury trials. Because the prosecutors want to avoid any situation in which losing is an option, they capitulate by offering lighter terms as well. Both the prosecutor and the defense have an incentive to agree on a plea bargain because of the power that the judge has over them in the courtroom. If either legal team plays hardball — such as in the case of the defense attorney seeking a jury trial for a legitimately innocent defendant — they run the risk of facing the consequences of harsher sentences (for the defense) or statistic-damaging losses (for the prosecutors), not to mention the disadvantages the judge may create for them in the court setting. Although direct collusion has been known to happen, Rasmussen and Benson demonstrate that no overt interaction need take place for these consequences to take effect. This phenomenon is known as “Group Cohesion.”

The plea bargain incentive creates a mechanical process of herding prisoners quickly through the court system and into the prison. The logical result is the well-known problem of prison overcrowding. Overcrowded prisons have their own unseen consequences, but that will be the topic for a different article.

Ross Ulbricht and the Plea Bargain Pressure

For anybody who cares about the Bill of Rights, the overcrowding of the court system should be a concern. The Sixth Amendment guarantees the right to a speedy trial. Unfortunately, by not defining what constitutes “speedy,” modern interpreters have enough leeway to ignore this right entirely. But court backlogs grow steadily due to the incentives created by victimless crimes — most significantly being drug crimes.

In the years Rasmussen and Benson had data for when doing their research, court backlogs in federal courts grew from 1,200 cases to a whopping 7,400 cases in a one-year time period (1989 to 1990).1 Since then, we have only seen more “tough on crime” legislation, such as the Joe Biden-sponsored Crime Control Act that significantly increased funding for state and city law enforcement to target drug crimes.

For libertarians, the problems of the justice system hardly need to be expanded upon. But for people who support drug laws, the overcrowded courtrooms, and concomitant violation of the Constitution should still be a reason for concern. But there are only two solutions: either repeal legislation regarding non-violent crime or significantly expand the legal system — which would require a tax increase of a magnitude that even the most severe “drug warrior” would be unlikely to tolerate.

With Ross Ulbricht’s unjust and severe ruling, he will undoubtedly be the example cited by state-appointed defense attorneys to any defendant facing a drug charge. “It doesn’t matter if you’re innocent,” I can already hear a defense attorney telling one of the thousands of young people arrested for dealing drugs, “if you don’t accept their plea bargain, you might end up like Ross Ulbricht.”

  • 1. Rasmussen, David W., and Bruce L. Benson, The Economic Anatomy of a Drug War: Criminal Justice in the Commons (Lanham, MD: Rowman and Littlefield Publishers, 1994), p. 23.

Chris Calton is a Mises University alumnus and an economic historian. He is writer and host of the Historical Controversies podcast.

See also his YouTube channel here

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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