0:33 Intro. [Recording date: August 7, 2015.] Russ: Now, your book surprised me. We've had EconTalk episodes on pirates with Pete Leeson and on prisoners with Dave Skarbek. And those conversations and their books emphasized how order can emerge from the bottom up. But your book, although it's related, focuses on a very different set of questions. In particular, you are interested in cooperation in the absence of government law, and deviations from that cooperation--when are those likely to occur. You start by making a rather startling point--that human beings must have evolved ways to cooperate without government, because after all, government appeared pretty late in human history. Talk about why that's relevant. Guest: Sure. Well, there is a common wisdom that people are sort of selfish at best, if not demonic in many situations. But while that--we go through our lives and we certainly run into people who on certain occasions, they seem like that, that can't be our basic nature. Right? We started out as a victim species, right? We were surrounded, the Serengeti Plains, by predator species who were bigger and faster. And we not only survived, but we flourished. And the one sort of secret weapon that we had was our cooperative abilities. A small human group could get together and through their cooperative efforts could add to something much more viable, much more powerful than the individuals. So that very basic human nature is one that is at root cooperative. Is helpful and supportive. I'm not sure that is the way people typically think about it. But I think-- Russ: I agree. Guest: the evolutionary story, plus a lot of the stories we give in the book, very specific examples we give in the book of human groups, for whatever reason, thrown off on their own--even in modern times that human character comes out, when that human group has to sort of deal with just each other, with no government to supervise them. Russ: And the possibility of no other kinds of standard costs that might be paid. So, you tell a lot of fascinating and very, very dramatically and well-told, human--humans acting under stress. Where there's high risk of death, and you'd think that selfishness would rise to the top. And it often does not. So, an example would be the Andes plane crash that was chronicled in the book, Alive. Guest: Sure. I mean, anybody can be nice, and things are all wonderful. That doesn't really count. The real test about sort of what we are like is what we revert to when things are bad. When our survival is at stake. And what we try to illustrate in the book is: Even in those situations--and we have a dozen or two of those, all very, very different kinds of situations--but they have that one factor in common: This group is just thrown off on their own and they have to sort of make it. Those very difficult situations, that's when you see humans revert to that very fundamental, cooperative nature.

4:43 Russ: So, talk about the situation in the Andes when it looked like there was very low chance of survival--not zero, but very, very low. And some people were sick, some people were healthy. I've never read Alive, again which chronicles it, but what is surprising as you highlight is that in that situation they didn't let the sick people die. They sacrificed resources for those folks, at the risk of their own lives. Guest: Right. Right. Yes, it's really an amazing story, although a story that's repeated over and over and over in different situations. But you would think in those circumstances people would say, 'Look, here's the sick person. We're in a tough spot. I'd take care; we'd spend resources on the sick person if we could, but we really can't afford to. The rest of us healthy people have to look out for ourselves.' But they don't. It's sort of counterintuitive in some sense. When left to their own devices they actually take care of the sick folks. And in that particular story what's really wonderful is it turns out quite a ways down the road, and nobody had any reason to think that this would be the case, one of the people who they take care of, who was basically near death after the crash from injuries and they sort of revive him--he ends up being the person who, against all odds, performs this superhuman feat of walking out of the mountains, getting them help, and bringing the help back and basically saving the entire crew. It's a fairy tale ending, but the instinct that ultimately led to it is a very common instinct. Russ: Yeah, and I think most of us assume that in those situations--again, if we think like economists which I can't help do--there's a triage situation. We have limited resources; we have to cut our losses; and tragically, even if we are both thinking about the group we might decide to let the weakest members die to let the stronger members have a chance of surviving at all. And yet the natural human impulse was not to do that. It seems, in this case. Now, one of the challenges, I think, in a book like this is that inevitably there is the risk that you've cherry-picked some anecdotes that make your point. And I just don't know about the plane crash where they, you know, killed off the people immediately that were weak so they could eat them. Guest: Sure. Russ: There was cannibalism in Alive with the people who had died in the crash. And so I assume there are some cases that aren't as cheerful. But I assume what's important is that this case, even if it's unusual, is still shocking. If you are a selfish, pusher of the selfish [?]. Guest: Right. And we have a couple of chapters where we try to explore: What are the kind of things that will get in the way of that cooperative spirit? That will cause the group to break down and to revert to the survival of the fittest. And that does happen; and it happens regularly. In the book we have a couple of chapters that talk about that. But I want to go back for a second about your sort of economic analysis of this. This is one of my sort of common squawks about a lot of modern economic theory. The problem is, humans are not just rational calculators like machines. Humans have--humans come with some sort of built-in instincts. In fact, the book is about a lot of those instincts that affect human decisions: the importance of imposing punishments on wrongdoers and so on. You can't justify a lot of that just on economic calculations of what's best for me. There's lots of instincts that affect human behavior. And this is just one of them. We come with a certain evolutionarily-developed collection of intuitions and preferences, and those play a role, too, in our decision-making about our behavior, in addition to the rational calculations of self-interest that also can have an effect. And my concern is that a lot of modern economists aren't willing to recognize the fact that there are both of those influences, some rational, some not entirely rational. Russ: Well, as our listeners know, I couldn't agree with you more. I was trained at the U. of Chicago by the high priesthood of the self-interest-is-very-powerful school. But at the same time, my Advisor was Gary Becker, and Gary Becker has tried to, in his work, take the richer view of human nature that really comes from Adam Smith, in his book, The Theory of Moral Sentiments, and try to integrate it into that approach. That's the traditional neoclassical maximizing rational approach. And it is not really--even though Becker got the Nobel Prize and even though people I think recognize that life is about more than money, despite that I think most economists get their mileage from self-interest and from cost-benefit analysis--effectively is our model of human nature. And I think that's a tragedy only and especially when they think that's how the world actually works. Guest: Yes. Russ: It's a very useful set of tools for getting you started and to think where to look for how to answer a puzzle. Guest: Right. Russ: But if you start to think that's the way human beings actually are, you can do some monstrous and foolish things. Guest: And it was a useful insight back when people thought that humans were all emotions, and all instincts. Which is absolutely false as well. So it provided some useful information as well, in trying to understand human conduct. But just to give a couple of examples from the book about how clearly we are not in the pure self-interest--that that's not the simple governing principle--one of the stories we tell is about gold miners. There is actually another story about wagon trains going west. In both these cases, these groups--they are in difficult circumstances. And the wagon trains, they were under a real time crunch. They couldn't actually start their journeys from the East too early because they needed grass along the way to feed the oxen or their horses and their cattle if they were bringing them. But they had to get to the other side before the winter came in. They got stuck in the mountains in the winter. So, time was everything. And they didn't stop for anything. Somebody died, when they stopped for the night then they would get buried, or something else. Some family had a broken wagon, or somebody was sick so they couldn't be moved--well, they were just going to be left behind. Which was essentially a death sentence. But the one exception was that these wagon trains would stop for trials of serious offenses. In fact, even wagon trains that were not part of their group would stop and join in. Russ: That's what's[?] fantastic. Guest: Yeah. Partly because they--for all of them, this was intuitively something that transcended everything else: doing justice in cases of serious wrongdoing somehow was more fundamental than everything else. And the same thing with the miners. The miners had given up everything else in their life--music, hobbies, family. They were just out there in the fields mining and time was money. And that's all they did. Because that's what they were there for. And there was no stopping for anything. But again, that was the exception: the exception was when there was some serious wrongdoing, the groups would come together--stop mining and come together and even call, depending on how serious the offense and how serious the penalty--call for other camps to join them. And this was a practice that existed everywhere, even though these camps were basically all transients. Every night, some group would leave or some would show up. But despite the fact that they had come from all over the world, this was a very basic practice that was natural to them. In part because I think it is basic human instinct. Justice is important. Russ: Yeah. We had an episode with Barry Weingast from last summer that we'll put a link up to so listeners can go back to it, which echoes some of those things with respect to the gold rush.

14:21 Russ: The part I found so interesting in your book is the part that really resonates with any parent who observes their children, which is a passion that we seem to have, an innate desire for justice and fairness. That people who play by the rules should be left alone, and people who don't should be sanctioned or punished. And we'll turn to the consequences of that in a second. But I just want to make the observation that, the way I think of it is: we want to be part of something larger than ourselves. And that might just be our company or our club or our religious community. And we're starting a political season here, that politicians are inevitably trying to sell two things: I'm good for you--but if that's all they're good for they are not going to make it. They have to convince people that they're good for other folks that the voter is concerned about. And I think that tension--it's a huge part of the human enterprise. Your book really highlights it. Guest: One of the interesting things is, we try to not only tell the stories but also talk about the existing scholarly literature in a very accessible way for lay readers. And the studies--the importance of doing justice--are just amazing. You can replicate a lot of these intuitions with game theory, some of these lab experiments. In some of these lab experiments, you can see third-party people who--they are spending their money, when they are watching two people playing a game and one person is sort of taking advantage of their situation and short-changing the other person, being unfair to the other person. The third party, who has no interest in the game at all, is willing to pay money to, and essentially penalize the person who they see acting unfairly. That's bizarre, if you think about it. And there's no other way to explain it. Russ: People do it in the workplace. Guest: Justice and fairness is important to people. Russ: And people do it in the workplace all the time. They'll do something that's really destructive to their own future, but they are so angry or resentful about the way they've been treated in a deal or an employee-employer situation--it's a very strong emotion. Talk briefly--just one more story; I want to get to sanctions and punishment--about the leper colony example because it's a fascinating one. Guest: Of course, it's shocking just to think that this was the Hawaiian solution to what they thought was the leper problem: they were just going to collect them all and dump them on this island. But like the folks in this plane crash, it was sort of a mix. Some of them were healthy; some of them were actually quite sick. And the rational thing to do for the healthy ones would have been to say, 'We're surely not going to waste our energies taking care of these folks who are sick.' Because the sick people, they can't contribute anything. They are just a net burden. They can't go out in the fields and try to do some farming, because they don't have toes. They can't stand up. And so on and so on. And so they just sort of get dropped on the island; and the folks who are running this program sailed off, came back with another load a couple of weeks later. And you wouldn't--in some rational sense you wouldn't have been surprised if only a third of the people were left because the rest had all died off. And that wasn't the case. They had gotten together, and the people who had the ability to do this kind of task, they were off doing that. Everybody was doing something. The strongest people actually ended up being assigned to take care of the sick people. And they actually turned themselves into a colony that really did survive. No thanks to the government at the time.

18:51 Russ: So, these are great and really inspiring stories about human nature. And to me your book is in some ways the anti-Lord of the Flies, which goes the other way. Talk about why punishment and sanctions are so important, and how they determine often whether these types of challenging and sometimes life-threatening situations are going to turn out well or not. Guest: Yeah. Yeah. Part of the--this part of the book is to some extent a response to what--I'm basically a criminal law professor and in my business a certainly have a core of folks who are modern thinkers who, for the most part are happy to toss the notion of deserved punishment and just think about reforming or rehabilitating offenders. And I'm actually--I'm completely down with rehabilitating offenders. The more you rehabilitate people, the better. But there is no substitute for giving people the punishment they deserve. And part of what this book is about is to demonstrate to a lot of the very popular criminologists and rehabilitationists to the exclusion of punishment, to demonstrate to these folks that they are living in a dream world. You simply cannot educate the general population out of their demands for justice to be done. This is not something that--at least without the kinds of intrusion on personal autonomy, that liberal democracies would allow. You just can't get people to give up that judgment. And it's sort of silly to think you can. In fact, one of the chapters in the book--we probably had more fun with it than we should-- Russ: Yes, you did. I noticed that. Guest: is the chapter about the anti-punishment communes in the 1960s, [?] utopian communes where they basically said, we're going to go off and everyone is welcome to come and we're not going to have any rules. People can do what they want. Russ: These are examples of tolerance gone wild. Right? Anything goes. Which is an appealing idea. Guest: And it's like, as I say in the book, watching a slow motion train wreck. You know what is coming. You know the disasters that are ahead. But they are sort of bleeping along, having a great time. And you have to have some considerable sympathy for them because they are so idealistic. They are trying to do admirable things. But they simply aren't taking account of the reality of human nature. And the notion that they could simply have a commune where there are no rules--well, some people aren't going to get with the program. Some people are going to take advantage. And if you don't have any kind of sanctioning systems, if one of your operating principles is there can't be any operating principles and there can't be any sanctions to enforce them--well, you pretty much condemn yourself to failure at the start. And every one of these enterprises just collapses, over and over again. There are actually some communes that ended up being successful, and a couple of them are still in operation, but what they learned along the way is: You can have not many rules, but one of the rules you have to have is, there are a couple of basic things that you can't do, like injuring other people, certain intrusions of personal autonomy, and so on. And, if you do, there are sanctions against you--that the larger community is going to do something about it. They are going to sanction you. As long as you have a couple of basic rules like that, you can actually make something quite utopian work. But just punishment is essential. Russ: When I was reading that chapter I was thinking about the Pilgrims. When they arrived in the United States they started with a communal farming system. And the problem they had was poaching. If you could go out at night and pick a piece of vegetable before it was ripe, you got all of it rather than having to share it with the other people. It's always a problem. So you're choice at that point is either to monitor poaching--sanction it. It was sanctioned, but it was expensive to keep an eye on it. And so they used private property: they basically said, 'Here's your plot. Everything that you grow on it is yours.' And that has a natural--a better way to say it: Property rights solve some of these, reduce the costs of these kind of problems. However, if you don't like that, or you need to farm, literally, for survival reasons, in larger plots than would be easy to monitor as individuals, then you need some strict monitoring and sanctions, or otherwise the selfish part of us, or some of the people's selfishness, will overwhelm their cooperative urge. Guest: Yeah. Yeah. Now, what's interesting in this sanctioning business is, there is a cost to imposing sanctions. First of all, you've got to get some person or group within the larger group who is willing to actually impose the sanctions. And there can often be some danger in doing that. But this goes back to this fundamental nature of the importance of doing justice. People are willing to make those kind of personal sacrifices. So the group in a sense gets saved from itself. As long as you have some people who are willing to make the sacrifice of being the communally-approved punisher, you can make it work. And sometimes the cost of being that person is quite significant. One of the stories we tell is about concentration camps. A lot of these stories, these absent-law situations--the plane wreck, or you put a person on the island, or things like that--but one of the things we point out is that you can essentially get the same kind of absent-law situation without being off in some remote location. In the concentration camps, obviously the guards care tremendously about how you deal with them or with your work. But they care nothing about how the prisoners deal with each other. So, within some barracks there's essentially completely lawlessness. There's no courts; there's no law; there's no nothing. Russ: No government. Guest: Right. Yes. It's just the group is, they might as well be on a remote island, for all it matters. And one of the stories we talk about is, it was not uncommon to have a couple of bad apples who, they are trying to survive so what they would do at night is to go around and those inmates who were already kind or weak, go around and steal food from them. A lot of prisoners--it was a common practice for a lot of prisoners to save a little piece of bread or something for when they really needed it, because if they didn't have it they just going to collapse. So you'd get somebody who will go around at night and steal this from the weaker folks because everyone else is asleep and even if the weak folk woke up, it's easy to deal with them. And what would happen is some of the stronger folks would stay up all night, take turns staying up all night, to make sure this didn't happen. Knowing that staying up all night meant that they were going to have a problem come daybreak and during the work of the next day. Their having stayed up all night could be just enough to make them not be able to make it through. And maybe you'd get sent to the gas chamber when you are no longer a useful worker, because you seem unable to keep up that day. So, it really was heroic in some ways. But they didn't think of it in those terms.

28:10 Russ: Yeah. It's a fascinating example. And there's many, many in the book of people who bear personal costs to help the group in ways that aren't necessarily beneficial to them. And there's no accounting. Other than the group sanctions. You say at one point--you don't say this literally, but a huge theme of the book: In the absence of government law, people organize themselves, establish norms, and ideally establish ways to enforce those norms. So one of the questions that you don't talk about is: Where are the limits to that process? I'm a classical liberal, heading toward an anarcho-capitalist. I'm not an anarcho capitalist. I think government has important roles to play. But I think in our current society we've gone way too far. You don't talk about what the limits might be. We've talked implicitly that obviously if the costs of sanctioning are sufficiently high, you might want to have the state do it. Do you have any other thoughts on some of the limits to that norm, the self-organizing forms of cooperation? Guest: Limits on punishment? Russ: No, on their effectiveness. So--I was going to ask you this later; I'll ask it now: The welfare state. The welfare state forces us to help others. I don't think it does a very good job. I don't think it's good for the humans' side of the equation. I think it's great at transferring money; I think it's not so good at creating meaningful lives, either for the people who are taxed or for the people who receive the benefits. There are benefits, obviously, to having the state do it coercively. But in a different world, we would have an incentive as individuals to cooperatively join with others to help folks. And we do that now. Obviously there's tons of charity that's given that's actual real charity. A lot of it's not. A lot of it's club goods and other forms of consumption. Guest: Right, but the point is that the government has in many ways taken away the obligation of a lot of people to make their own contributions. Russ: Absolutely. Guest: And a lot of these smaller groups--if you--you only have to go a couple hundred years back. You don't have to go back to the Serengeti Plains. One of the reasons that there was this natural cooperative instinct in groups, and groups in difficult circumstances sort of made it, because everybody in that group understood that their success and survival depended upon others. So, all of them had incentives. There are, of course, complications that come from a world in which we no longer deal with people personally. Where government stands between us and everyone else. The government simply provides. And once government is providing and you no longer have a sense of accountability or responsibility for contributing to the larger enterprise, well, some people don't. And yeah, what do you do about that? Certainly the advent of government has made our lives better in many ways. But it has certainly complicated the nature of our interactions with one another. It has made it possible for us to be much more individually isolated from the rest of our community. Russ: Which is ironic. Right? I think a lot of people see government as a way to express this cooperative urge. I rail against it constantly on this program, and I--we have many listeners who find my listening offensive. But I don't see government as a--let me give a contrast. I just happened to be watching Witness, the Harrison Ford movie Peter Weir directed in 1985. It's a fabulous movie; and one of my favorite scenes in that movie is they raise a barn. They have a day, and all the neighbors come from miles around and they build their neighbor a barn. And there's food put out for the workers. And the music is phenomenal. It's just such a great scene. But, today-- Guest: And they in their turn, their son have a barn built for them. Russ: Yeah. And as a result, in a world where you can, say, apply to the Department of Agriculture for a grant to have your barn built, or to have a government agency build your barn--as you point out, our cooperative urges get dulled. That's the word you use. They get 'dulled.' And they are always there. But I think when you take away the incentive--my argument is that it's not just that the government might not do it as well. Or maybe it will do it better, even. But I worry about the fact--not worry, but it bothers me, that that essential part of our humanity that you write about in the book doesn't have that outlet any more. Maybe it spills over somewhere else. You know, to me it spills over on Sunday to football games, where we cooperatively get together and scream and cheer in a nice harmless way for our enemies to be destroyed. Guest: Well, the book is not at all meant to be anti-government. The message I think is a little more nuanced. And that is: Government can do wonderful things. If government understands what human nature is, and tries to build upon that human nature rather than disregarding it or trying to tear it down. So, in the context of just punishment, for example, government spending its time, as you actually see sometimes: government trying to convince people that they shouldn't care about justice being done--that, and that as I said earlier is not only hopeless. I think it's bad policy. Government taking account of the fact that people think doing justice is really important--and it's the flip side: Justice, of course, goes in both directions-- Russ: Yeah, that's very important. Guest: Not only should we be opposed to failure of justice. We also are as concerned, as sensitive to injustices. Government that understands people's interests in both directions and having punishment but only just punishment would be much more careful to focus on the importance of doing justice. But in fact we have a criminal justice system that regularly trades off justice to promote other interests. Not necessarily, you know, inappropriate interests. But interests that, I think, the folks who have sort of created these tradeoffs didn't really appreciate the hidden costs to failures of justice, or to doing injustice. Russ: Yeah, I just want to emphasize that, because in the earlier discussion we talked about the importance of punishment. But a good chunk of the book, and it's very powerful, talks about excessive punishment. And how disturbing that is to most of us. People who do-- Guest: Well, this goes back to--if you think about the origins, this goes back to these sort of maintaining cooperation. You can as effectively lose cooperation if the group sees that people are violating some basic rules that protect personal autonomy and nothing happens to them, but also you can lose cooperation if the group sees that somebody is being punished far in excess of what they deserve. One of my favorite stories here is, just to make it clear how fundamental these instincts are: In groups of gorillas--in fact, most animals that are social animals, you will see precursors to these kind of justice judgments. But one of the things that happens in gorilla groups is, they have some basic rules. And they are actually like the rules that you see in some of these absent-law human groups make up, like the plane crash. They have some basic rules about what you can't do. And if you violate one of the rules, then one of the big males sort of gets to beat on you. But lots of things that also happens is that a lot of the older females will sit and very carefully watch [?] if the big punishing male doesn't back off when the appropriate amount of punishment has gotten to, they step in. The group understands that there's to this proportionality between the seriousness of the wrongdoing and the seriousness of the punishment. And the group as a whole will insist on meeting that proportionality requirement even if the official punisher missed the mark.

37:45 Russ: Yeah, I find this part of the reason the optimal punishment literature in economics is so weird. This idea that--I think it's very reasonable to assume that criminals have some awareness of the expected cost of their actions, which would be the probability that they are caught and the consequences of if they are caught. And if the probability of their being caught is low, that suggests that we should make the punishment very high. But there's an inherent unfairness in that. Because it means that people who are actually caught are bearing a very disproportionate penalty relative to those who aren't caught. Guest: Yeah. Russ: And I think that bothers us. Even when they've done something wrong. Guest: Well, this is the example--when I was talking before about the hidden costs and trading off justice against other interests, that sort of general deterrence program is I think a very nice example of that. The folks who push general deterrence as a distributive principle for punishment are willing to punish more than is deserved if they can get the right kind of deterrent effect--which avoids a certain amount of crime in the future. And I totally get this is [?]-- Russ: Makes sense-- Guest: in general deterrence is wonderfully efficient mechanism for avoiding future crime. And avoiding future crime is a great thing to do. So I totally get it. But what the analysis misses is that there is also a hidden cost in giving somebody more punishment than they deserve. It undermines the system's moral credibility with the community. And that in itself has crime control effectiveness costs. People are less willing to be cooperative and helpful. They are much more willing to subvert the system. Much less willing to internalize its norms. So, the good utilitarian who weighs all the costs and benefits frankly I think has to come away saying: Oh, no, maybe the real, the most efficient criminal justice system is going to be one that can harness all those powerful forces of social influence and internalize norms by being the most morally credible system. The system which has earned itself a great reputation for being just: avoiding injustice, avoiding [?] of justice. That kind of reputation has a real moral authority. That has real social power. And utilitarians concerned about gaining compliance ought to be very interested in harnessing those social influences.

40:28 Russ: Yeah. I'm a little skeptical, then. I'm going to push back. I'll let you defend that view. This is something that I think is implicit in the book, that I found I didn't totally agree with. Which is, in a small group setting, I totally understand how deviations from justice--the punishments necessary to encourage cooperation and that deviations from justice are going to be viewed very poorly by members of the group. And that will discourage cooperation. In either direction. So, punishment that's arbitrary and capricious will discourage cooperation, as will lax punishment. I find it harder to accept the idea that that's part of what's happening in a larger society. So, I definitely agree that in our current world right now there are a lot of people very upset about the level of punishment in our criminal justice system, either on the street or in our prisons. But what I find interesting is depending on how your ideology you tend to go one way or another. So, former guest Arnold Kling talks about the three languages of politics--so, conservatives tend to see everything on a civilization-versus-barbarism axis; liberals tend to see the world through oppressor-versus-oppressed eyes; and libertarians see it through coerced-versus-voluntary eyes. So, if you are a liberal, I think people who are generally liberally look at prisons and say they are horrible, because there a bunch of people there who don't deserve any punishment and they are being oppressed. Conservatives tend to think, 'Well, if you did something wrong, hey, it's your fault,' and they tend to think that--and I've heard this many times--'Oh, the prisons are like country clubs. It's easy. Everybody gets off. The criminal justice system is inept.' And libertarians are sort of in between. But to come back to my main point--sorry for the rambling question: We all have our own perception of what the criminal justice system's law[?] is. Nobody really has a good feel for it. It's actually like. And to suggest that that's part of our problem of cooperation just doesn't make, doesn't convince me. So, defend your view. Guest: Yeah, no. This is I think a very interesting issue. I think the--you are absolutely right that politics does tend to drive a lot of the talk on these kinds of issues. But what the empirical studies show us is there is a shared intuition about justice that cuts across all demographics. That, as long as you--it doesn't matter what somebody's politics are. If you, for example, there was a study, I think we probably talk about it in the book, where you ask people to rank order, I think it's like 26 little stories of different cases; and essentially everybody--it's a Kendall's W, I think .96, which is staggering. Essentially everybody ranks them exactly the same. It doesn't matter what their politics are. People really do have shared judgments about the relative blameworthiness of offenders. And if you were just talking about regular, run of the mill people who were sitting in a court room and listening to all the facts and listening to a pre-sentence report, I think you'd get an enormous amount of agreement about the relative seriousness of the cases that they saw in a day. But as soon as a case, it's headlines--once it gets that sort of political interest, that sort of short circuits people's intuitions. The case, then, they can't see the case for it's real facts. They somehow go to, 'Oh, well, what is the politically correct answer, given my particular political point of view?' What I want to suggest is that there is real hope for the criminal justice system. You can cut through all these political differences by having people focus on, you know, the core of what's important for justice. This notion about having punishment reflect the relative blameworthiness of offenders--that's something that doesn't matter what somebody's politics are. If you can get them to focus on those sort of basic issues, about relative blameworthiness, people will agree on most things. And you can construct a criminal justice system, that people would all sign on to. So, it's really a very positive story. But it's a story that basically argues that the politics here is something that interferes and distorts with people's normative, intuitive judgments about justice. Russ: I agree with all that. Totally. 100%. The question I'm really asking is: First, we misperceive the data through our own ideological lenses. So, as you point out, what we read in the headlines--and we choose what we read, because we listen to and watch the shows that often confirm our biases; we read the newspapers that do. So what I'm wondering is, you seem to be suggesting at one point that we'd have a more cooperative society if our justice system was fairer. And--I like the idea of a fairer justice system for its own sake. I think that's a wonderful argument and I think you highlight some horrific-- Guest: But you don't think you can get there because of the politics? Russ: No, no, no, no. I think you could get there. I think, conceivably, for example, you talk about a shocking law called 'felony murder' where an accusation where somebody's roommate borrows his car at night against his will at first, but then eventually says, 'Okay.' Go borrow his car-- Guest: He [?]-- His mother's wedding. And his roommate borrows the car, lends it to some other folks who go off and do something bad-- Russ: They kill somebody. Guest: He's in prison for life. Russ: And I think when you share that story with people who "want to be tough on crime," they'll say, 'Well, yeah, that's too tough. But that's an exception. And that's one case. It usually doesn't happen.' Guest: No. That is the absolute standard form[?]. One of the things we did was--I have a criminal law research group here at U. of Pennsylvania, and we were commissioned by the State of Pennsylvania and the State of New Jersey to do some grading studies of their criminal codes. And the--part of our report sort of demonstrates the astonishing conflict between citizens' judgments about what punishment should be in different cases, the relative punishments in different cases when they are actually given the facts of the case, versus what those same citizens, when they are parroting the political bumper sticker of the day, what they say. You can take some serious conservative and some serious leftie who think they don't agree with anything and you give them a bunch of cases and get them to talk about what should actually happen in the cases where they know the people, they know the facts; and you give them a dozen cases: They are probably going to agree on those cases. And we report in these reports--I think it actually is mentioned in some places in the book: There's an enormous amount of agreement, again, across demographics. And, the agreement seriously conflicts with what the criminal codes now provide.

48:44 Russ: Now, I agree with that. Again, I think that's fascinating. Again, the connection I'm questioning is--and by the way, I just want to add again as I do on the program, as a Patriot's fan in writing and talking in August of 2015: I think if I sat you down with the facts I could get you to think that Tom Brady might even be innocent. But let's put that to the side for the moment. What I'm suggesting is the following--appreciate that. You are making the case that, in a group, when I feel there are unjust sanctions and punishment, I won't be as cooperative as I otherwise would be. Are you also suggesting that our current criminal justice system, which I also agree with you is not very good at tying punishment to blameworthiness--does that discourage our cooperation societally? Does that encourage law-breaking? Which I think you suggest? Guest: Okay. Yes. Yes. And here's the mechanism that comes from--this is the connection between a criminal justice system that has gotten itself a bad reputation, because people see it as being unreliable judges, the amount of punishment that somebody deserves--and the actual, the crime-control effectiveness. And my argument is that it undermines crime-control effectiveness. One of the studies that we report in the book, for example, is where you bring some folks into the psych lab, and you do a bunch of tests that gives you a sense about how much they are willing to comply. Are they willing to report crimes? Be witnesses? Are they willing to internalize the norms? If some new offense is created do they take that to mean that it's really condemnable conduct? Like, insider trading. We don't--we never really took it too seriously before; now the criminal law says, 'Oh, no, we are going to increase the penalties; this really is a really condemnable conduct.' Do we sort of take that to heart and say, 'Now that you mention it, this criminal law really seems to have a very good judge of what's really condemnable and other things, so I guess I've got to rethink this whole insider trading thing. Maybe it is condemnable.' Or, whether it's drunk driving, or domestic violence, or a lot of other things. There are mechanisms by which people's attitudes, attitudes about the criminal law actually turn into their willingness to comply. So in these studies that I was talking about, we find out what people's willingness to defer to the criminal law is. And then, you know, you distract them by doing a few other tasks. And then you give them some real world cases. You give them a bunch of cases where the criminal law has seriously screwed up. And then you can show in the testing that they are now a bit more disillusioned about the criminal law. And then a few more distracting tasks, and you re-test to see what their level of compliance is now. Are they willing to subvert it, or help it? Are they willing to internalize the norms or not? And even in the lab, in these kind of studies you can see a significant reduction in their willingness to comply. Now that's amazing in some ways. Because people come into the lab, and they have a lot of information about the criminal justice system already. An experimenter can only sort of nudge their conclusion about the system a little bit. Yet, even with that little nudge you can see significant, comparable reduction in their willingness to comply. And we've reproduced these same studies using separate groups, where one group, you get the disillusioning effect and the other group you don't. And you can see the differences. Or, you get three different levels of disillusionment, and you get three different levels of compliance. So I think there is a lot of modern data in support of that connection. The reputation of the system really does matter if you are talking about effective crime control. Russ: I agree with that. And I think recent events in the United States, starting really with the Snowden case, down through Ferguson and Baltimore and some of the tragic deaths of people in the street that have been chronicled in public now, only because of cell phones and the Internet, I think it has to disillusion people. And it has gotten people to be more wary of the criminal justice system who weren't "honest", good law-abiding people, and think there's--for themselves--but they are a little bit, I think people are a little bit alarmed of it. I was probably thinking about a more-- Guest: Before we leave that, can I mention-- Russ: Yeah, go ahead. Guest: One of the chapters we have is on Prohibition, American Prohibition. Which I think is really wonderful. Because that really demonstrates that dynamic on a large scale. For a lot of interesting reasons we throw it in, Prohibition. But then it's broken so often, even by public officials. Nobody takes it seriously. So, it's no surprise that you have a lot of violation of prohibition laws. What's less obvious to people but I think really telling, is that during Prohibition, crime rates generally went up. Even if it had nothing to do with Prohibition. You had crime rates going up because there was this general effect. People would look at the criminal law, see that they simply didn't see drinking alcohol as condemnable conduct and that undermined their faith that the criminal really knew what was condemnable and what wasn't; saw a lot of people breaking the criminal law and not feeling bad about it. There was, the community sense was that the criminal law was just being silly and out of step here. And that reduction in its reputation, it's moral reputation, translated into a lot of other areas. It was a very bad time for crime, until Prohibition was repealed and criminal law started trying to earn back some of its lost reputation.

55:46 Russ: I want to give a different example that I think makes your case, in a different context. The connection I'm trying to think about is: What is lost in civil society when government takes over certain functions that could have been done privately, cooperatively. Or when government reduces the reliability of punishment and the justice of it. And particularly that second one--in an extreme you can see it in a case like Stalinist Russia, the Soviet Union, where you know that--the famous example for me, not famous, but the big example in the Gulag is somebody wraps a piece of fish in a newspaper and the picture of Stalin happens to be on the fish--they used a piece of newspaper that had a picture of Stalin. And so you get a 10-year prison sentence. We joke about a 10-year sentence. But in the Gulag, 10 years could kill you, literally. And so, in that kind of world where your neighbor can entrap you or whisper about you and tell a story that can give you a 10-year and possibly the equivalent of a death sentence, you don't want to hang out with your neighbors so much. When you go to form clubs and thugocracies[?] in those kinds of societies, the authorities see those clubs as a threat. And they will have informers there. The whole tenor of civil society can be destroyed by that kind of lack of faith. Guest: Right. Yes, this goes to your cooperation point. Actually, we actually talk about the Soviet example at one point, and I think one of the interesting things is after the collapse of the Soviet Union, you had a significant crime problem. Because you had a criminal law which, as you say, had a very bad reputation as a moral authority. It was effective only because of its coercive, police state power. And once that was gone, with the collapse of the Soviet Union, it didn't have anything left. Whereas there are a lot of societies in the world where they don't need much--criminal law does not do much coercively, because its reputation is such that it's a very powerful social influence. It doesn't need that police apparatus. Russ: And it also lets the nongovernmental norms, respect and shame and other things that we talk about when we talk about Adam Smith's desire that we have to be lovely--we have an innate desire, Smith says, to earn respect and to be respectable, to earn respect honestly from those around us. And when you have a world where people are honored and promoted and paid for betraying their neighbors, that, as you say, that urge gets dulled. And it doesn't maybe come back so easily. Guest: Yeah.

58:56 Russ: I want to close with a really powerful insight that I had not thought of, and I want to hear you maybe go into it in a little more detail than you had in the book. You tell some really depressing and very, very powerful stories about criminals: a serial murderer, for example, who gets off from conviction because the evidence that was gathered against him was gathered in an illegal way. And this is a common tension in civil rights and the legal system. And I've always been sympathetic to the idea that, okay, it's terrible that a person gets off from committing a crime and doesn't pay a price, but we also want to make sure that the police don't do things that are oppressive. Guest: Absolutely. Yeah. Russ: And yet you point out, which I think--I'm embarrassed I've never thought about it--there are other ways to discourage police misbehavior than just throwing out the case. In fact, it's the wrong punishment. It doesn't even punish--the police would rather have a conviction. Why aren't we punishing them? Rather than rewarding the criminal? Guest: I think I was talking about the Eyler case, for example, where you have a serial murderer who gets off really for just a trivial violation. He's held on the road for questioning when a trooper just happens to stumble by when he's got one of his victims [?] to deal with them. But the judge later decides, well, he's been held a little too long. So-- Russ: The whole thing gets thrown out. Guest: The whole thing gets thrown out. The evidence is overwhelming that he's killed all these people. And then he goes off and kills somebody else later on. The point is, in a lot of these cases, it would be more effective, essentially, if you really had some misconduct by the police, sanction the police officers. The police office doesn't really care that much, what happens to some other offender. He's doing a job. But if he's going to get a day, a suspension of days paid, just something that minor, you'd probably get them jumping. In fact, it's the police unions who have, unfortunately, blocked this I think much more effective approach to the exclusionary rule. Nobody wants to live in a world that doesn't have some kind of limitations for police intrusion in our personal lives. But think about how to do it. To be able to do it in a non-justice-frustrating way would allow the system to have a much better reputation for doing justice. And at the same time might be more effective for controlling police. Russ: So, are there any sanctions, even implicit sanctions, for police who ruin a case because they look, they crack open somebody's trunk without permission? Guest: Typically, no. And in fact one of the reasons why the current system doesn't work very effectively is because even the police higher-ups see the exclusionary rule as essentially immoral. Russ: Explain what that is. What is the exclusionary rule? Guest: The [?] where some police doesn't follow the rules or gets the application of the rules wrong or something, and therefore the evidence that was seized, although it's very reliable, gets excluded. So, the [?], it's hidden from the jurors at trial. That's the exclusionary rule. A lot of the--the police culture typically sees the exclusionary rule as essentially immoral. So, they are more than happy--for example, 'testilying'--you've probably heard that phrase, testilying? This is a phrase created by officers in the New York police department. Russ: I don't know the phrase. What does it mean? Guest: Testilying? It is--their view was, it was actually morally okay to lie in court about the circumstances regarding a search or a seizure, if it was necessarily to avoid application of the exclusionary rule. All these cops who would never think it would be appropriate to lie about some criminal case, this was their exception. If it concerned the search and seizure rules, the rule itself was so immoral that it was morally okay to testify incorrectly--testilying, testi-lie in court about the search and seizure. Russ: Because the person is guilty, so we're going to get to the right--in their mind-- Guest: Yes: 'I'm doing the right thing; I'm standing up for justice and this crazy rule is anti-justice. I'm morally justified. It's these crazy courts that have it wrong.' Russ: I differ--again, I never thought about it. It's a strange concept to say, 'You gathered this evidence in an inappropriate way; therefore the price will be paid by us. Rather than you.' Guest: What's interesting is the Europeans, who obviously have the same sorts of issues, who care as much about controlling police, do not have the kind of wooden application that the United States does on the exclusionary rule. The exclusionary rule has these very, very complicated set of rules the police have to follow about when they can search and how to do it and all. And if you violate any of them, bang--the evidence is out. In Europe, it's much more of a balancing of: Was there real unfairness done to the defendant? Right? And what was the seriousness of the police violation versus what was the seriousness of the offense? The European courts are much more likely to look at the bigger picture and say, 'How is society better off?' And balancing the costs and benefits in this case. The criminal justice system reputation for protecting citizens' privacy is important. But the criminal justice system reputation for doing justice is important, too. And as it turns out, the Europeans actually have a better--if you look at the polls, the surveys do better in the fairness of their criminal justice system than the Americans do, despite the fact that they have this much more flexible approach to how they control police conduct.