Category Archives: Judicial system

Who is the customer?

Outsourcing, public-private partnership – this is the Trojan horse of the political entrepreneur that will fool the political class every time into believing salvation from inefficient government lies within. For those familiar with how markets are actually supposed to function, the irony is clear: only harm shall spring forth.

One of the more insidious “partnerships” is that of the outsourced private prison and probation services. The Georgia legislature has recently passed HB 837 which has expanded the authority of private probation companies while simultaneously decreasing public oversight of their operations. In Georgia, if one is convicted of a misdemeanor  (anything from shoplifting to traffic citations) and cannot pay the assessed fine in full, then one is turned over to a private probation company (basically a glorified collection agency) which then collects the fine, along with their monthly fee of course. Under the new law, if fines are unpaid then those convicted may be thrown in jail or electronically monitored all the while accruing greater fines. The original probation period may be “tolled” or extended indefinitely until the fine is paid in full. Inability to pay will land one in prison. Essentially Georgia has reestablished debtor prisons. Herein lies a perverse incentive; inability to pay translates into larger fines. The public courts and the private companies then share in this growing revenue stream. Ironically they make more money off of those with the least ability to pay.

“But criminals must make restitution, surely you’re not suggesting that just because someone is “poor” they should not be compelled to answer for their crime?” No, I’m not suggesting that at all (although I do seriously question whether traffic violations rise to the level of “crime”). To understand why outsourcing leads to distorted incentives, ask yourself, who is the customer? Is it the state, or is it the lawbreaker? In fact, it is the lawbreaker. The state intercedes and poses as the customer, which diverts the stream of responsibility. The probation company is not answerable to the real customer, so they have no incentive to serve them.

Now you may be scratching your head trying to figure out why the lawbreaker should be the customer. Allow me to explain. Assuming that an actual rights violation has occurred (e.g. petty theft), then there is a victim and a perpetrator. The conflict is between those two parties and no one else. It can then be resolved by use of an arbitration (court) proceeding to uncover fault. Assuming the thief is at fault, he has an obligation to make all parties whole (the entity that apprehended him, the court that adjudicated the facts, and of course the victim). To simplify things we’ll assume the insurance carrier of the victim has made all parties whole. Now the insurance carrier has a rightful claim against the thief. It seeks to be made whole. Stated differently, the thief has a debt obligation to that insurance carrier. If the thief cannot pay immediately, then those two parties can come to a mutual agreement as to how that debt will be discharged. They are not constrained by any “laws” – they may agree to whatever they wish. There are many options, but one option could be a voluntary arrangement with a private “prison” (if you can call it that) that would discharge the debt to the insurance carrier in exchange for a certain amount of labor. The thief would have many of these private prisons to choose from and he is under no obligation to choose this path at all – therefore such private prisons would compete for such a labor source, enticing their customers with favorable terms. Indeed, conditions would most assuredly be far more favorable than in any public or private prison system today. After all, if they don’t please their customers (the voluntary “prisoners”) then they won’t be in business for long.

Public-private partnerships will always be corrupted by perverse incentives if the company providing the service is not directly accountable to the customer.

And Justice for All…

The 19th Century saw an end to chattel slavery. The 20th Century saw an end to conscription slavery. Will we now, in the 21st Century, witness an end to the one remaining form of labor slavery, namely jury service? For those that do not consider jury service to be a form of slavery consider this: If a complete stranger sent you a letter ordering you to appear at a specific location at a specific time, what would you think? What if that person then also threatened you with imprisonment if you did not comply and with physical violence if you resisted the enforcement of compliance and you knew full well they could carry out that threat? Who would that person be, if not your master? The State is your master; the judge is merely its errand boy and the police its henchmen.

So if jury service mirrors the master-slave relationship and is thus a variant of slavery, why is there is no public outcry? Why the quiet acquiescence to our own subjugation? There are two reasons. Cost and confusion. The costs of jury service over one’s lifetime are relatively low (since many are never called and those that are get called only 2-3 times over a lifetime). For example, if the state imposed a new tax whereby everyone paid $10 a year and a randomly chosen 10 people would pay $100,000 instead, it simply would not be worth it for the vast majority of people to fight that. The odds you’ll be hit with the “big” tax are infinitesimal and the $10 tax isn’t costly enough to fight. Just because one puts up with something doesn’t mean it is ok or that consent is implied. It simply means that the costs of fighting it are greater than the burden imposed.

But if low costs are not enough to keep the masses in line, the state can rely on the modus operandi of the con artist: manipulate and confuse your victim into choosing to do your bidding. This is accomplished through public school mediated state sponsored indoctrination that convinces the masses that there exists this mystical thing called “civic duty” and that jury duty falls chief among those. There is no such thing as “civic duty” – we as individuals owe nothing to society by mere virtue of having been born and likewise “society” owes us nothing in return. Our only obligations in life are those that we explicitly consent to (employment, parenting, volunteering, etc.) But even if one does believe in the “civic duty” of jury service, does it not strike you as odd that everyone else in that courtroom (the judge, the lawyers, the bailiff, the court reporter, etc) are all there voluntarily and are being paid market rates for their service, yet the jurors are there involuntarily and are paid well below even minimum wage? Given that jurors by and large are present involuntarily the entire incentive structure of jury service is geared toward producing a low quality product as quickly as possible. That is not to say in ALL cases jurors behave this way, simply that most of the time that will be true since most of the time people just want to get back to their own lives, jobs, etc.

There are two ways the jury system can be improved. Just as we did with the military, we can move from a conscription-based model to an all-volunteer based model. I was called for jury duty last year and found the process to be fascinating. The timing was terrible so I was glad to be dismissed. However that is not to say I would be opposed to volunteering in the future. The point is I would be making the choice of when and where I serve.

The second method to improve the jury system would be to switch to a professional juror system. There is no reason that being a juror cannot be a full time paid profession just like any other. Think of it not so much as a panel of jurors and a judge but rather a panel of 13 judges with one judge guiding the proceedings. Those judges/jurors that gain a reputation for judicious verdicts would be sought out and used for more and more cases. Those that likewise had a poor reputation resulting from their unfair verdicts would cease to be used.

Today’s jury system is an anachronism. It pays homage to an era when the abuse of natural rights was commonplace. A slave may work under threat, but an employee works by desire. Which system do you want delivering you justice?