Guest Blogger - Dan D'Amico on "The Use of Knowledge in Proportionate Punishment"

Per a suggestion from the comments, we're happy to offer Dan D'Amico an opportunity to discuss his work that won him the Don Lavoie Memorial Graduate Student Paper Competition from the Society for the Development of Austrian Economics.  Dan's remarks are below, and he will join us in the comments section.  We have extended a similar offer to Claudia Williamson, the other prize winner, to post about her work.  We hope she will take us up on that, and if she does, we'll have that next week.

It's also our plan to make the opportunity to guest-blog part of the Lavoie Essay Contest each year.

Now to Dan:

At Professor Horwitz's request, I wrote this post as an update to my Lavoie contest essay. My original paper entitled "The Use of Knowledge  in the Criminal Justice System," was an attempt to outline points of decision making within the criminal justice system where  central-planning inhibits the transmission of knowledge between suppliers and demanders. When police, courts, and prisons are provided  by central-planning they uphold the emergence of prices. Without market prices there is no insight into the local knowledge about the problems of crime and the harm that it causes. Furthermore, the absence of knowledge in earlier production nodes causes discord in later stages as well. For example, prisons rely upon good court  decisions, and courts rely upon effective police forces; for criminal justice to function well as a wide variety of institutional goods and services, knowledge must be revealed, detected and responded to, in each stage of production. I still believe that this approach was a useful one and needs more attention, so I plan to return to that draft and improve its structure and clarity.

Now the paper has radically changed form from the previous draft. It is more specifically focused on the topic of proportionate punishment. Proportionality is a philosophical standard of evaluating punishment norms – "a punishment should fit the crime." I argue that the popularly accepted insights of proportionate punishment assume the  state as the sole provider of punishment services, and in doing so they assume a state-central-planner to possess a degree of knowledge that it is impossible to possess. I assume that the moral and normative arguments in favor of proportionate punishment are sound, and then I explain that even if the philosophical arguments for proportionality were universally accepted, the central-authority would still lack the  real knowledge of individuals' tastes, preferences, evaluations, and abilities to provide proportionate punishment. Providing punishment like any other provision of goods and services on the market is a task of social coordination and therefore confronts knowledge problems. Furthermore the decision making process requires a mechanism to update and improve itself in order to maintain proportionality in changing  social environments and crime rates.

The updated draft can be found here.   Any comments or suggestions would be most appreciated.  Once again I'd like to congratulate Claudia Williamson for also winning the Lavoie contest and say thank you to  the SDAE and the Lavoie Prize committee.

Comments

[matthew mueller]

Great work has recently been done extending Hayekian insights on the importance of disseminating (communicating) knowledge that is both particular and locally concentrated.

However, when reading academic papers by Leeson and Sobel, Powell, Butos, and now D'Amico, I find myself coming back again and again to some of the objections scholars at the Mises Institute have raised concerning the contribtions of Hayek and how they differ from those of Mises. The problem in my view is not with the perversion of the price mechanism due to the attempted centralization of valuable market information; rather it begins (and ends) with the very presence of government intervention itself, which necessarily distorts the entire market process. Now, admittedly, many Austrians see no difference in these arguments. J. G. Hulsmann, however, in his recent biography of Mises identified the split between Hayekians and Misesians as consisting of attempts by Hayekians to separate the institutional framework from the market process that plays itself out within that framework. According to many Hayekians (which is more implied than explicitly stated) the role of government is to control (regulate) the institutional framework while leaving the market process heavily unhampered. Now clearly the balance that is required for a market system to operate efficiently is a complicated matter. I think the best source to consult on the importance of instutitions and their role in providing stability and reducing uncertainty is Douglass North. A "neutral" third-party enforcer is required for market transactions to operate at low cost; however, we have seen historically that the existence of government has contributed as much to increasing transaction costs (public choice) as it has to reducing it.

Another thing I wanted to mention regarding the paper was your failure to include analyses of the market for "public defense." The December issue of Reason has a wonderful review article on this subject, and I think it would be worthwhile to contrast governmental efforts at directing resources to policing, prosectuing, and punishing with those to defending. For example, "97 percent of ... law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders." Ignoring for a moment the manifest inefficiencies that inhere in government management of the criminal justice system, I think it is important to compare the amount of resources that are controlled by agencies responsible for prosecuting and punishing criminals to those assigned the role of defending them. I would be interested in reading your thoughts on this.

The nationally "renowned" legal scholar Richard Posner sees no problem with this distribution of resources, arguing that if more were directed toward public defense budgets, more criminals would be acquitted and society would as a consequence be forced to devote ever more resources to policing and prosecuting. Thoughts?

[Daniel J. D'Amico]

Matthew,

I don't really understand the Hayekian v. Misesian distinction that your elaborating on in the beginning of your comment. I should be clear to reiterate that my paper is an attempt to identify knowledge as a critical feature of market processes. The coordination of plans is disrupted to the degree that prices are suppressed by state intervention in the provision of criminal justice and punishment. I'm not sure if you would call that Hayekian or Misesian or both.

As per your question about public defenders. I think Posner's claim is reasonable under cetaris paribus conditions. If all else is held the same and we subsidize the quality and quantity of public defenders then criminals go free more often than before.

I think more often than not the separate institutions of criminal justice change in conjunction with one another. The bureaucracy may be set up so that an increase in public defenders is matched with an increase to public prosecutors -- so on and so forth. The system grows and grows. In a quasi-posnerian framework this doesn't seem like a recipe for guaranteeing justice but rather raising transactions costs.

[Rafe Champion]

Surely if there is a split between Mises and Hayek it is not on the role of the state to provide an institutional framework for people going about their business. At least in some early writing Mises was pretty clear that the state has a role to play (with all the attendant risks). During his lifetime there was both intellectual domination by statist ideas (who knew about classical liberalism between WWI and WW2) and also massive growth of the state, boosted by wars.

With the revival of classical liberalism and Austrian economics, plus public choice theory and a few other things, there is at least the chance of doing better in future. And we are only going to get to the zero state by way of the minimum state. Of course right now it will be an achievement just to slow down the growth of the state.

[william]

Moving away from the mere thought exercise, I am not sanguine about changes in this area without a complete change in the thought-process regarding crime and punishment.

The reason: Public choice theory. There are so many people on the payroll earning rents that they are not likely to be easily dislodged.

We have companies making huge sums on drug testing and monitoring devices. Private prisons, which many libertarians advocate, lobby for tougher penalties for obvious reasons.

Forfeiture brings huge inflows that are not shared. DARE employees and counselors who go around making speeches of dubious quality are not likely to let go. Churches who are receiving funds to rehabilitate users are not likely to go quietly.

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I think more often than not the separate institutions of criminal justice change in conjunction with one another. The bureaucracy may be set up so that an increase in public defenders is matched with an increase to public prosecutors -- so on and so forth. The system grows and grows. In a quasi-posnerian framework this doesn't seem like a recipe for guaranteeing justice but rather raising transactions costs..