The Enduring Appeal of Perversity Arguments and Unintended Consequences Warnings

James Forman, Jr. won the Pulitzer Prize last week for his book Locking Up Our OwnIt is well-deserved. That book–and his earlier work wrangling with Michelle Alexander’s The New Jim Crow–shows the ways that we have arrived at the wicked problem of mass incarceration through something much harder to disdain than evil scheming by distant elites. We did it to ourselves, and African-American political leaders did it with the full support of their African-American constituents.

Forman’s argument is sometimes conflated with that of Naomi Murakawa, who argued that it was liberals, not conservatives, who created mass incarceration by emphasizing the importance of safety over all other civil rights goals. According to Murakawa, when Lyndon Johnson championed the the 1968 Safe Streets Act which swelled the flow of federal dollars–and federally procured military equipment–into local law enforcement, it wasn’t just a capitulation to conservatives, but:

“part of a long-term liberal agenda, one that reflected a belief that federally subsidized police recruitment and training could become racially fair.” (73)

That is, according to Murakawa, Democrats didn’t adopt law-and-order rhetoric to respond to the policy entrepreneurship from Republicans that threatened to swamp them–they explicitly preferred more coercive and punitive state institutions so long as the men and women wielding the riot gear were racially diverse. By the mid-nineties, Bill Clinton wasn’t passing the 1994 Crime Bill because he got dragged there by Republicans, the Democrats lead the way–in fact the Senate version was sponsored by none other than Joe Biden. Murakawa’s conclusion is damning:

In the end, the Big House may serve racial conservativism, but it was built on the rock of racial liberalism. Liberal law-and-order promised to deliver freedom from racial violence by way of the civil rights carceral state, with professionalized police and prison guards less likely to provoke Watts and Attica. Despite all their differences, Truman’s first essential right of 1947, Johnson’s police professionalization, Kennedy’s sentencing reform, and even Biden’s death penalty proposals landed on a shared metric: criminal justice was racially fair to the extent that it ushered each individual through an ordered, rights-laden machine. Routinized administration of race-neutral laws would mean that racial disparate outcomes would be seen, if at all, as individually particularized and therefore not racially motivated.” (151)

James Forman’s book is quite different. Where Murakawa places most of the blame squarely on white Democrats, Forman places his lens on Black politicians in DC, and finds a very different dynamic. From the start, the story of the rise of racialized mass incarceration is a tragic story of reasonable and well-intentioned Black leaders fighting white supremacy and Black disadvantage with reason and evidence. They made deliberate choices that were well-justified and supported by their constituents. And incrementally, they made things worse.

DC’s leaders saw drugs like heroin as a scourge and heroin dealers as race traitors. They saw violent crime rising, and guns playing a major role. And they wanted Black police–because those were good jobs and because Black police officers wouldn’t be tempted to engage in racist practices. So they punished drug dealers and ultimately drug users. They punished violent crime and gun possession. And they did it with a Black-led and majority-Black police force. But still they ended up creating a majority Black prison population in our (I live in DC too) Black-led and Black-staffed prisons and jails.

Forman does the hardest thing in criminology and law: he adopts the stereoscopic vision that can see both from the perspective of those who fear crime and those who bear the costs of policing and prisons.* Black District residents know what it’s like to fear that their family and neighbors will fall into drug addiction or be the victims of gun crime. They also know what it’s like to fear that their family and neighbors will be terrorized by the police or have their lives derailed by imprisonment. And Forman is able to square those stories: see the victim’s fear and rage with one eye and the perpetrator’s circumstances and his community’s losses with the other. Alone, either perspective gives a flat, two-dimensional image, but together you get depth: three-dimensions of a wicked problem where values are always at stake but a way forward is possible.

The difference between Forman and Murakawa is that where Forman wants to tell a careful story about wicked problems and their double-binds, Murakawa seems to want to show up liberals (including Black liberal elites) as self-undermining and doomed to failure. This is Afropessimism at its best and worst: any efforts at racial equity are perverse and doomed to failure. I find such arguments deeply challenging when they come from non-white authors, which is why it’s important to me to think seriously about what a perversity argument is doing.

A perversity argument is any argument that claims that when we try to do a thing we believe is important, we will fail and make it worse, falling further behind as we try to move ahead. The actual use of perversity and unintended consequences arguments are often justified by some of the available evidence, as well as some of the speculative hypotheses: try to make someone love you and they will feel manipulated; create a minimum wage to help the poor and you’ll increase unemployment; try to reform the criminal justice system and you’ll just make it stronger and more pervasive; tell someone they’re wrong and they’ll sink even deeper into their error; try to engage in affirmative action to reverse racial discrimination and you’ll entrench stereotypes of inferiority.

Margo Schlanger’s 2015 review of Murakawa’s The First Civil Right has stuck with me for a while in part because I still occasionally hear people pushing the Murakawa line that Democrats and liberals are primarily responsible for mass incarceration, and thus can’t be trusted to reverse it. Schlanger has a great reading of Albert Hirschman’s work on reactionaries, radicals, and academics and our enduring love of perversity arguments:

Indeed, perversity arguments are appealing not only to reactionaries and the left-of-liberal left but to academics, irregardless of ideology. As Hirschman says, a perversity argument “is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Perversity arguments are counter-intuitive, attention-grabbing. These are attractive characteristics for someone trying to stand out in a crowd of monographs. And sure enough, the attack on liberalism as perversely harming the disempowered has become quite fashionable in criminal justice in particular. Bill Stuntz is its most well-known (and least radical) author, but structurally similar claims have sprouted up all over, usually from the far left. These are arguments that prison conditions litigation causes an increase in incarceration, Miranda rights cause increased arrests, and so on. The claims are empirical—A caused B—but the arguments are usually a combination of ideological and hypothetical.

Perversity arguments feel smart and daring. They make you feel like you’ve seen a secret truth. But they also work to disempower and disengage. They paralyze us with fear, uncertainty, and doubt. Every step in the minefield of unintended consequences and backlashes is probably doomed, so the only safe thing to do is stand still. From the perspective of perversity helping hurts, loving hates, attacking strengthens, and truth-seekers lie. Nothing is what it seems, and everything must be viewed through a hermeneutics of suspicion that ends with a kind of paralysis or status quo preference.

But at the same time… sometimes everything is not what it seems. Sometimes our well-intentioned efforts do make things worse. If Forman is right, DC’s leaders were facing real crime problems in need of real solutions, and they built a tidy mass incarcerated city without ever seeking to do so. And his chapters on DC’s responses to gun violence, especially, strike me as importantly relevant to current discussions of gun control in the wake of the Parkland shootings.

*Another book that manages the “stereoscopic view” well is Danielle Allen’s Cuz.

“The purpose of law enforcement, with respect to transactional crimes, is to make sure that they have ‘good’ criminals.”

Keith Humphreys shares this interview with Vanda Felbab-Brown. There are no dull moments, but here’s one I think should give us lefties pause: what will replace the underground marijuana economy? Felbab-Brown explains:

Most of the time governments tend to fight illicit economies and not think about what will replace them. Policies are often premised on the erroneous idea that simply suppressing a particular part of the illicit economy will mean that legality will emerge. Frequently that does not happen, especially when large segments of the population cannot participate in the legal economy and are dependent on illegality for their survival. In those cases in particular, the propensity towards shifting to other forms of illegality is very high. On the other hand, if you have a finite supply of traffickers and a large segment of the population that does not depend on illegality, then it is quite possible that suppression alone will be sufficient, and no replacement economy will arise. In the case of global networks that have large societal dependence and participation in illegality, it is almost impossible to make sure that if you suppress one illicit economy, another one will not emerge.

So it mostly depends on the setting. There are some illicit economies that need to be the priority when it comes to suppression—smuggling nuclear materials, for example. This is an economy that is rather minimal in scale but nonetheless the consequences could potentially be so exorbitant that suppressing it needs to be a priority. The priority, in my view, should be to think about which illicit economy is the most dangerous and poses the greatest harm, and to focus on methods to minimize that economy.

The interpenetration in criminology of economic themes of cost-benefit analysis, unintended consequences, and public choice problems with the epidemiology of violence and an ethics of harm reduction is now almost complete. (What’s missing? Daniel Levine‘s work-in-progress operationalizing care ethics in peacekeeping.)

Arendt, Antisemitism, and the Chicago Teachers’ Union Strike

I am one of those ideologically-impure liberals that worries a lot about public sector unions. On the one hand, I favor workplace democracy and collaboration; on the other hand, I worry about the fact that as union membership has declined, the majority of remaining union members haved tended to be at the top of the income distribution and to have many other forms of cultural and social capital as well. A public sector union member gets input into the functioning of government as a voter, plus they get input into our government as a union member concerned about their own labor conditions. What’s more, public-sector unions are not all the same: to my mind there’s a difference between a teacher’s union and a police or prison guard union, and I’m not willing to be univocal in my support for both. Still, my bias is generally in favor of teachers: I am one, after all.

Caption BelowI recently read an interesting factoid about teaching: in the 1960s, 2/3 of all households had school age children. Today, only 1/3 do. Attempts to verify these have been unsuccessful, although the percentage has certainly been dropping for a long time along with the birth rate. (I also learned that 39% of Chicago’s public school teachers send their own children to private schools.)

Looking at the responses to the Chicago Teacher’s Strike, especially the way it pits centrist technocratic Democrats like Barack Obama and Rahm Emanuel against old-school labor progressives, I suspect that the falling percentage of families with school-age children is part of the problem. Sure, everyone agrees that education is important, but fewer families actually have current need of a good education, and so for better or worse they have begun to look at the costs rather than the benefits of strong schools.

In my view, this decline allows an interesting analogy with Hannah Arendt’s account of the growth of anti-semitism in Origins of Totalitarianism, which itself is derived from Karl Marx’s essay on On The Jewish Question. Arendt argued that Jews had failed to take advantage of their political and economic power while it was still extensive enough to garner protection from the Christian majority. When their role as scapegoat creditors was centralized into big (non-Jewish) businesses and a few Jewish financiers, the long-ignored differences between Jews and Christians exploded to the fore, with genocidal results.

Arendt bases this theory on Tocqueville’s account of the downfall of the French aristocracy:

“the French people hated aristocrats about to lose their power more than it had ever hated them before, precisely because their rapid loss of real power was not accompanied by any considerable decline in their fortunes. As long as the aristocracy held vast powers of jurisdiction, they were not only tolerated but respected. When noblemen lost their privileges, among others the privilege to exploit and oppress, the people felt them to be parasites, without any real function in the rule of the country.”

Troublesome as inequality and oppression may be, inequality without the power to back it up is even worse. Arendt suggests that the Jews refused to occupy a designated space within the European political economy, instead “choosing” to remain aloof no matter which class individual Jews would otherwise occupy. (Of course, it’s not so simple, but to Arendt it seems that there was a coincidence between the Jewish desire for group survival and the nation-state’s interest in preventing assimiliation.) Yet according to Arendt this became a great problem when successful Jews sought acceptance and assimilation into the professions and intellectual elites:

“Central and Western European Jewries had reached a saturation point in wealth and economic fortune. This might have been the moment for them to show that they actually wanted money for money’s sake or for power’s sake. In the former case, they might have expanded their businesses and handed them down to their descendants; in the latter they might have entrenched themselves more firmly in state business and fought the influence of big business and industry on governments. But they did neither. In the contrary, the sons of well-to-do businessmen and, to a lesser extent, bankers, deserted their fathers careers for the liberal professions or purely intellectual pursuits they had not been able to afford a few generations before.”

Arendt called this “political ignorance” that blinded the Jews to “the political dangers of antisemitism.” Certainly they understood the costs of social discrimination; what they did not understand was the way this would morph under totalitarianism:

“Whenever equality becomes a mundane fact in itself, without any gauge by which it may be measured or explained, then there is one chance in a hundred that it will be recognized simply as a working principle of a political organization in which otherwise unequal people have equal rights; there are ninety-nine chances that it will be mistaken for an innate quality of every individual, who is “normal” if he is like everybody else and “abnormal” if he happens to be different. This perversion of equality from apolitical into a social concept is all the more dangerous when a society leaves but little space for special groups and individuals, for then their differences become all the more conspicuous.” (55)

To be unequal when equality is understood as equality before the law is a blessing; to be unequal when equality is understood as a social requirement for membership in the political community is quite a curse. The more that Americans attend to income inequality, the more they will worry about Wall Street bankers, certainly; but they also worry about the local inequalities, those they see at work in their own communities. Wall Street is far away for most Americans; yet everyone has a local government, and most Americans can observe that the cars that park in the teachers’ lot are nicer than their own, while simultaneously noting that teachers have shorter days and longer vacations.

For Arendt, the backlash of resentment comes when those with a privilege lose the power to enforce it. The aristocrats tried to keep their privileges without preserving the authority to organize their communities, and they lost their heads; the Ancien Régime gave way to the centrally-administered bureaucracy. Teachers are no longer trusted to evaluate their own success or failure; more and more of their lesson plans are legislated or provided by centralized textbook publishers. Fewer families depend upon teachers than ever before, and those who do have political power don’t trust the public schools in large urban school districts like Chicago, New York City, or Washington, DC. In these and many other ways, the job of teaching K-12 education is being de-professionalized, in large part because we’ve tried to demand that education solve all of our problems and it simply cannot.

Perhaps this comparison is not the right one, but what I notice is that labor solidarity is increasingly exclusive of the least-advantaged. Especially during times of increasing unemployment, I worry that solidarity with laborers will not include those most in need. Unions are no longer primarily sources of solidarity between the lower and middle-class and a means of stepping into the middle-class; now they are sources of solidarity within some elements of the upper-middle class, i.e. those who are well above the median income in the United States. In this sense, public sector labor unions appear to command economic power while failing to achieve the cross-class solidarity that would legitimize that economic power for those who are worse-off. The resentment that emerges, then, appears to be driven by the demographic constitution of the union itself. As Arendt pointed out, rights without the power to protect them are useless: when you need them, they’re not there.

Even as teachers are losing political power, it appears that the political power of labor solidarity has an unfortunate tendency to accumulate among those who already have it. In the US, the people who most need unions don’t have them: Walmart workers; nurses and home health aids; agriculture and construction workers. Meanwhile, the people who least need unions get them: folks with graduates degrees and guns. Soon, perhaps, it will just be those with guns who can prevent the legislative undermining of their rights to collective bargaining.

(Continued in the next post, Public-sector unions as Public Work: The Case for Teachers)

Democracy Means Asking the Right Questions

Whenever I talk to students about democracy, I like to emphasize that the original term for democratic rule was isonomy. Consider the account Otanes gives in Herodotus’ History:

“[T]he rule of the multitude [plêthos de archon] has… the loveliest name of all, equality [isonomiên]…. It determines offices by lot, and holds power accountable, and conducts all deliberating publicly. Therefore I give my opinion that we make an end of monarchy and exalt the multitude, for all things are possible for the majority.” (Herodotus 1982, 3.80)

Here Otanes identifies democracy with the strict equality accomplished through lots, rather than election by popular balloting. Though this might seem too random when compared to the collective choice of representatives, the appeal of this vision of isonomy is that the lottery supplies an equal opportunity for rulership to each citizen, guaranteeing equality well in excess of the American ideal of equality ‘before the law.’ But note that this equality is only possible when combined with two forms of accountability: that accounting by which an officer must give an accurate tally of expenditures during the administration or be held liable, and the figurative accountability by which the officer owes his fellow citizens his reasons for the decisions made in the public deliberations before, during, and after the decision is taken. Obviously, the use of lots only functioned insofar as citizenship was radically restricted, and Otanes justifications for the ‘rule of the multitude’ fell flat against Darius’ account of the tendency of all regimes to fall into monarchy insofar as both oligarchies and democracies produce agonistic tensions from which one man eventually emerges the victor and is designated the most excellent and the wisest of the contenders. (Herodotus 1982, 3.82)

The three norms of isonomy are mutually reinforcing: equal participation requires that the office-holder act with the understanding that she might be replaced by any other member of the community. She cannot abuse her office without being held to account at the end of her term. For the same reason she must regularly give reciprocally recognizable justifications for her actions, without which her decisions might be reversed by the next office-holder, or even punished when her office no longer protects her from prosecution. The ideal result of such a regime is a strong preference for deliberation, consensus, and mutual respect, alongside a cautious honesty and transparency with regard to potentially controversial decisions.

The reverse of isonomy is bureaucracy. Bureaucracies are more efficient, and are supposed to be more procedurally rational, but insofar as they are predicated on expert knowledge, they’re not intended to involve every citizen or to answer to them directly. According to Joseph Schumpter’s popular formulation of the relationship, too much democratic control makes it difficult for the administrative state to efficiently pursue the public goods citizens ultimately want. But there are still ways to hold bureaucracies accountable.

During the Tufts Civic Studies Institute, we met with Luz Santana and Dan Rothstein of The Right Question Institute. Santana and Rothstein have a simple model for teaching people to generate, improve, and strategically deploy interrogatives. They mobilize a few easy heuristics, like the difference between open-ended and “closed” questions (which can be answered with a single word or short phrase,) but they also emphasize the role of questioning in holding others accountable. Underwriting the whole project is the empowering assumption that those with power can nonetheless be required to answer questions about the reasons that went into a decision, the process by which it was reached, and the role for individuals affected. These are subversive demands, as they undermine unreasonable, unfair, and exclusive decisions.

One of the ways that people experience power and weakness is through a tacit recognition of who has the right to ask questions, and who does not. By giving those who normally feel disempowered a little practice and confidence with questioning, Santana and Rothstein suggest that they can reverse some of those tacit assumptions in a democratic manner. It takes about twenty minutes to teach their method, but look at the results:

Dominique’s landlady wanted to sell the property Dominique was renting to a buyer that didn’t want to have a tenant. Without much introduction, the landlady knocked on Dominique’s door one evening and asked her to sign a paper. Unbeknownst to Dominique, the paper was an agreement that she would have to move out of her apartment within 30 days. [Dominique] had just participated in a short educational workshop at the adult literacy program she attends. At the workshop, Dominique had learned that she had the right to ask questions and more importantly, she had learned how to ask good questions about the decisions that affect her life. Dominique politely asked her landlady to leave the paper with her so that she could look it over before she decided if she was going to sign it. Dominique plowed through the language and realized that she would need help in deciphering the paper. Thinking about the RQI process, Dominique started coming up with her own questions. Then, she began calling the few people she knew in Philadelphia to try to get some answers. One of her friends gave  the number of a lawyer that worked for a renter’s assistance program. Dominique followed up and found out that her landlady didn’t actually have a renter’s license and therefore couldn’t take a legal route to evict her. The new owner would have to honor Dominique’s leasing agreement until the following year.

Santana and Rothstein describe this as an exercise in microdemocracy. Most people’s understanding and civic capacities are at their weakest in the formal voting and lobbying of representatives that political theorists tend to emphasize as the heart of political life. This is doubly true for youth, immigrants, and the unemployed. Yet these are are the people that have the most interactions with the state’s coercive power, and a good strategic question can help to democratize the millions of interactions individuals have with the employees of state agencies. 

Though Santana and Rothstein emphasize questioning as a practical skill and the source of all other rights-claims, I think there’s something deeper at work here: not just questioning, but interrogation. We generally reserve “interrogation” for custodial questioning by the police, where state officials set out to elicit a non-voluntary confession from an unwilling speaker, forcing them to divulge something that they did not want to reveal. Indeed, the Latin quaestio is also the word for torture, and a quaesitor or inquisitor would ‘put one to the question’ with implements whose primary purpose was to cause the excruciating pain that was once the only surety in the world of jurisprudence.

In the policing model, the interrogative relationship is a curious reversal of the norms of elite domination: the questioner’s ignorance is her strength, while the respondent’s knowledge is the basis for subjecting her to the question. I think this is what the RQI taps into: because the interrogative relationship prises apart expertise and power, it is especially useful for reworking the sources of bureaucratic governance that most people experience as their primary mode of interaction with the state. By demanding reasons, ordinary citizens help to police the reasonableness of the administrative state; by demanding a fair process, they remind officials that a fair process is expected; by demanding to know what their role in any decision affecting their lives will be, they build the assumption that there will be a role for them into every discussion of the decision, and this assumption can be self-fulfilling.

Land Use, Density, and Local Control

I’ve been looking for good articles on local governance, in part related to the Tufts Summer Institute, and in part related to my goal of transforming my ethics course so that it takes up the paired questions of the Good Life and the Good Citizen. One resource for this is Sharon Meagher’s textbook Philosophy and the City. Though the selections are a bit short, the table of contents supplies an excellent set of recommendations. In particular, she suggests pairing Andrew Light’s “Elegy for a Garden,” with a chapter from Hayek’s The Constitution of Liberty, “Housing and Town Planning.”

At first this looks like a classic matchup between libertarian and communitarian, “market”-governance and “community”-governance, but it’s not quite that. In fact, both Light and Hayek are worried about the same thing: the pernicious interventions of planning and zoning boards into the lives and livelihoods of the least-advantaged. While it’s true that Hayek prefers market solutions and Light wishes that community gardeners were the authorized land-holders of common pool resources, their actual disagreement goes beyond procedures to a substantive disagreement at the heart of urban environments: density. Ken Archer at Greater Greater Washington describes the disagreement like this:

[C]ities aren’t just denser suburbs. Rather, cities are organisms that function fundamentally differently, expanding the range of real freedoms available to their citizens. Prominent amongst these are the freedom to interact with people of diverse backgrounds, the freedom to participate in culturally rich and deep communities, and the freedom to meet everyday needs in the safety and convenience of your community.

Density in and of itself doesn’t necessarily generate these benefits, as the early 20th century experience in U.S. cities demonstrates.

He concludes with a quote from Jane Jacobs:

Jacobs writes that “cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.”

One mode of co-creation is the community garden, it’s true. As Elinor Ostrom has demonstrated, legitimate community control of unused spaces will tend to empower citizens to enrich and beautify their communities. But this creates a difficulty: empowered, beautiful communities are also desirable communities, places that foreigners in weak and ugly communities would like to join. Yet community control of unused spaces will tend to foreclose outsider’s access to them

Hayek’s argument is that this is an unfair preference for the smaller loyalty to our neighbors over the larger duties we have to our fellow human beings. The market would allow strangers to purchase access to these gated spaces. Yet in general these transactions occur between city government and developer, not between current and future residents. So again, the real problem is that urban gardeners are not recognized as the legitimate authorities over the land they cultivate, but only as a few of the many citizens who stand to benefit from the local government’s windfall.

There’s a simple solution to this in the common-law: adverse possession. The garden that Light elegizes, Esperanza, had been in continuous cultivation for more than two decades. But centuries of statutory tinkering with the common law have rendered adverse possession laws useless for their intended purpose. Another possibility is a Community Development Corporation that would purchase the unused land before it was beautified, but there we often run into local governance interference through eminent domain. Luxury condos generate more tax revenue than herbs and flowers, after all.

Notice that in both of these cases, it is not the market that fails to protect a community’s interest in its common pool resources, but local governments. In that sense, our progressive intuitions will tend to distract us: a democratic collective (the town government) is overriding a non-democratic collective (the community.) Yet if we champion isonomy, subsidiarity, and civic engagement, we will tend to prefer the smaller engaged collective to the larger expertly-managed collective.