In 2011 criminal sentencing reform might be on the table. Collapsing state budgets and ever-increasing prison populations (and the costs associated with them) are forcing the issue. Republican Indiana Governor Mitch Daniels, has recently endorsed a plan to help reduce the prison population.

To understand where this may go, we need to understand where we’ve been. There’s been a massive increase in the prison population since 1980. This increase has been helped intellectually by the widespread acceptance of two strains of conservative thought. We discussed them recently over the winter break (one, two). The first is the school of thought known as Incapacitation Theory, a theory that says, in the words of James Q. Wilson: “Wicked people exist. Nothing avails except to set them apart from innocent people.”

The second is known as Broken Windows, the idea that a neighborhood could be separated into orderly and disorderly people. As disorder sets in, orderly people flee or retrench from the neighborhood, and new disorderly people are emboldened to enter and take over. It also points to an idea of a police force that doesn’t solve crimes but rather one that maintains order. In this vision, the police force isn’t there to investigate crimes, present evidence to a prosecutor who then presents evidence to a jury.

It’s worth noting how Broken Windows, instead of acting as an alternative to Incapacitation Theory, acted as a supplement. But how did we get to Incapacitation in the first place? I’ve been reading a lot of 1970s conservative criminology lately, and I believe it actually grows out of a critique of the rational choice mode of crime. In the law and economics approach of the Chicago School of Becker, Posner, Coase, etc. it is hard to balance the idea that crime is committed by an estimate of costs and benefits. Risking 30 years in prison to rob a store for $80 can’t really be rationally possible.

What the Incapacitation School argued is that it can’t, unless you consider that criminals have a cognitive makeup where they are impulsive and “present-orientated.” Wilson makes reference to this in his 1975 book Thinking About Crime (“lower-class persons…immediate gratification…inclined to uninhibited, expressive conduct”), the idea that delayed gratification is an essential part of normality and middle-class being, and that those who are incapable of delaying gratification are those who are likely to become disorderly, commit crime and be “lower-class.”

Here’s Edward C. Banfield, a professor of Urban Government at Harvard, and the chairman of President Nixon’s task force on the Model Cities Program, who was a mentor to James Q. Wilson:

the many traits that constitute a “patterning” are all consequences, indirect if not direct, of a time horizon that is characteristic of a class…The lower-class individual lives in the slum, which, to a greater or lesser extent, is an expression of his tastes and style of life….[T]he indifference (“apathy” if one prefers) of the lower-class person is such that he seldom makes even the simplest repairs to the place that he lives in. He is not troubled by dirt and dilapidation and he does not mind theinadequacy of public facilities such as schools, parks, hospital, and libraries;indeed, where such things exist he may destroy them by carlessness or even by vandalism…[T]he slum is specialized as [a site] for vice and for illicit commodities generally…. since the benefits of crime tend to be immediate and its costs (such as imprisonment or loss of reputation) in the future, the present-oriented indvidual is ipso facto more disposed towards crime than others….The fact is, that no one knows how to change the culture of any part of the population…[T]he policy maker usually must take certain cultural and psychological traits as given….If he is to change a city’s potential for crime it must be by manipulating situational factors, which is to say inducements…either by raising the cost of crime or by raising the benefits of noncrime…[society] abridge to an appropriate degree the freedom of those who in the opinion of a court are extremely likely to commit violent crimes.” (Unheavenly City Revisited, 1974) a cohort of present-oriented persons could as a rule be expected to commit a good man more crimes of certain types than a matched cohort of persons who are not present oriented. (Present Orientedness and Crime, 1991)

It doesn’t matter where this bias for the present comes from – though they believe it likely comes from something they call “culture” – it only matters that it can’t be changed. Hence we need to separate these groups from the normal population.

There are two things to note about this. The first is that, even if it isn’t self-consciously done, this is an appeal to use thicker psychological descriptions in order to supplement models of instrumental rationality used by economists. The cost-benefit analysis of why someone would commit an armed robbery doesn’t make sense unless you also assume the robber weighs current gains much more than future losses. In this sense this is something we would call “behavioral economics.”

It’s ironic that, since many assume the turn towards thicker psychological descriptions in economics will naturally lead towards more progressive outcomes, here a behavioral turn has been used to justify a massive expansion in the most punitive and reactionary aspects of the government alongside a massive buildup in the carceral state apparatus.

The second is that we should all become more familiar with Charles Karelis’ arguments in his excellent book the Persistence of Poverty. It’s a slim volume, and makes a great afternoon read. Karelis proposes we start to distinguish between pleasure goods, and good that are relievers, and realize that some goods can act as both. His thesis is that there is diminishing marginal utility in pleasure goods, but that relievers have increasing marginal utility. “[P]aying the first bill in a stack of overdue bills does little to relieve a guilty conscience.”

Karelis takes a moment to do some intellectual history digging and finds that the current economic obsession with decreasing marginal utility comes from Jeremy Bentham’s equating happiness with the absence of unhappiness. Bentham, and the Mills, thought of happiness as reciprocal to unhappiness, like the relationship between tall and short. So to increase happiness is the same exact thing as to decrease unhappiness. Maybe, maybe not. But the problem is that this relationship is carried over to the goods that effect happiness and unhappiness.

People in a state of increasing marginal utility will display things that look like pathologies from a more secure footing – binging and not smoothing, low and high extreme work output instead of constant labor – but are perfectly rational given a state where every good has a reliever quality. Thus we should look at poverty and the extremes of living rather than vague notions of culture as being of interest here.