Rachel Barkow’s Losing Strategy
In her book “Justice Abandoned”, Rachel Barkow makes the following statement:
“The real check on pretrial detention should not be coming from politics but from the Supreme Court enforcing the Constitution.”
The word “should” implies there is a reason why the Constitution should be followed. Barkow wastes her book, by not providing such a reason.
Barkow’s thesis is that judges do not actually follow the Constitution. So pretending there are well-known consensus reasons the Constitution should be followed, which reasons Barkow is appealing to without restating them, is pointless. Why, again, should the Constitution be followed? There is not actually a judge who thinks it should be. Judges only dip into this when convenient to give color to doing what they want to do. And they change nobody else’s mind with this silly charade of pointing to the Constitution.
Barkow also offers that people out on bond are not usually dangerous, that detention creates various costs, that it can be abused to control political speech, and that the public generally miscalculates the costs and benefits as can judges. In short, Barkow offers that pretrial detention is being decided irrationally or based on corruption.
Barkow accepts the idea that pretrial detention is being done to protect society from dangerous people. Her problems with that are not that this cannot be done. Her objections are that law and tradition does not actually allow this, and the calculation of dangerousness is not being performed rationally. And maybe the reason the law does not allow it is because the calculation of dangerousness has not been performed rationally, meaning the Constitution perhaps anticipates these “abuses”.
So ultimately Barkow’s real objection comes down to pretrial detention being decided sub-optimally, considering the various costs and benefits such as protecting us from dangerous people. There is no need for the extra fluff of saying what history or the Constitution allows, as these cannot successfully bolster an argument with someone who disagrees with her. Someone can always respond “Well I think there is a benefit for locking this person up.”
So the real debate is not what the Constitution says, but how can the optimal pretrial detention be discovered? Federalist Society academics say smug judges insulated from politics would free the guilty and dangerous based on even less rational nonsense. And so political surveillance, which Barkow objects to because it locks up people irrationally, is still the best decision maker we have.
Barkow does not argue with the real issue, what is really being disagreed about. The real issue is not what the harm and benefit of all these people being in jail is, but how can we make decisions that discover benefits? The real issue is that politics can never decide cases well based on facts, but can only determine general rules. Because case-specific facts can never be determined and monitored and weighed by politics, not any more in law than in industry in the USSR. Imprisonment decisions can only be made rationally and thereby produce benefits, when they are made with due process of passing law and measuring fact against law.
Barkow seems to say we should return to tradition where we can only lock up people to make sure they show up at trial. But that doesn’t convince people they should not try to chase the apple, the mirage, of protecting us from dangerous people before a “fair” trial. It still leaves the door open to there being some benefit from locking up dangerous people pretrial, which benefit a rational decision maker could discover if he is willing to unmoor himself from the Constitution. This is no more complicated than simply saying we don’t need jury trials.
It is not enough to say this was historically abusive, because any judge or voter will always say he is rational today. Saying the Constitution characterized the local majority faction and politicians as abusive, is not going to persuade a local voter or a judge to abandon his efforts to protect the community from dangerous people. Nor is Barkow likely to persuade them by saying the Federalist Papers pointed out man is evil. And so your popular pretrial detention decisions are going to be evil because you are. Has Barkow explained why we even need jury trials?
If a judge can detain someone for two years before a trial, why would we need a jury to give someone a one-year sentence? People want reasons and logic, not history, and will rely own their own bad logic otherwise.
So the real debate is whether you think voters regulating judges with politics, or juries measuring fact against law, can make optimal or even useful decisions of who should be locked up. The reality is that voters can never know whether the people judges are locking up are dangerous, to even supervise the judge’s job performance. And not even the judge can know the facts, without discovery and confrontation. It is simply a problem that voters cannot have any idea what the government is doing or what the benefit is, and no useful decision can be made at all, without due process – without whatever process is due – to make a good decision.
There is no shortcut. Without established facts and laws, you will always lock up and free the wrong people. Just like people in Cuba always go hungry, despite officials wanting to protect them from this danger. Because they don’t have a good process to make food production and distribution decisions.
What Barkow needs to say is that the dangerousness decision cannot be performed rationally or honestly, except by a fair jury trial measuring fact against law. Never mind what the Constitution says. Even if there was no history or Constitution, a rational economic analysis shows that judges operating under the influence of politics, rather then juries measuring fact against law, cannot accurately discover and weigh the various costs and benefits of detaining a particular person.
There is a word for this: “due process”. Due process is whatever process is due, to determine if there is a rational social benefit for imprisoning a person. Some people think this can be decided by political speech in the town square. You don’t need the Constitution, but only basic information economics, to prove this utopian idea is wrong.
The voters don’t know who is dangerous, the voters cannot monitor all the decisions of judges, and the voters don’t even have established hypotheses of what the costs and benefits are of locking up people of various level of dangerousness. The law records standards of what dangerousness is balanced by what detention. The voters can no more regulate the behavior of judges to make optimal decisions, than they can regulate McDonalds managers.
Barkow said:
“The Framers were well aware of the risks of having the government detain people before a fair trial because they were familiar with the abusive pretrial detention practices in England, where monarchs would imprison political critics and set excessive bail…”
This does not stop voters from saying we are not monarchs, we are good people who can make smart and virtuous decisions in a collective based on political speech. No they can’t, it’s economically impossible. The costs and benefits of pretrial detention need to be established in law, and the facts need to be produced in whatever process is necessary to do so, to measure the facts against the law. In other words, no rational decision can ever be made absent a fair jury trial.
Barkow said:
“the Supreme Court ignoring constitutional protections against this very dynamic and authorizing the incarceration of people based on a prediction of dangerousness.”
There would be nothing wrong with this, if the prediction of dangerousness, and the costs of curing it, were weighed accurately. What Barkow really needs to point out, is that the calculation of dangerousness cannot be made accurately in the way judges imagine it can be; not by voters or with their approval, not without whatever process is due. No benefit can be chased or discovered without due process. Not in Cuba, the USSR, or the USA. It is an economic problem.
Barkow needs to simply say it: “People in the town square — a collective — and judges under their regulation, can never make rational decisions in light of information without due process. Not any more in criminal justice than in commerce in a socialist utopia.” This is quite different from Barkow saying you are not allowed to do this – you are not allowed to achieve this benefit – because the Constitution says so. Or because people in the past abused this, or because what you think is benefit I think is abuse.
Saying why they cannot make good decisions without due process, is different from Barkow saying I disagree with voter decisions and want someone else to make them. But without explaining why they cannot make optimal governance decisions.
Barkow needs to explain why their political detention decisions will always be based on bad information and will therefore always be bad; why chasing a benefit without due process, or using a political process, is a mirage. You have to explain that judges are utopian communists who think the collective in the town square can make good decisions. And judges don’t understand why due process is required or what it does. They cannot understand and never could, and will not follow the Constitution unless they rationally understand what due process does and why.
To understand why “due process” is due, and what it does, read:
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