The Cost of Trump's Cashless Bail Crackdown: A Waste of Taxpayer Dollars and an Erosion of Justice

President Trump is at it again signing executive orders this week. One of them had to do with making flag burning unconstitutional. I do not need to cover that executive order today because I already covered it in 2016. There was another executive order that Trump signed this week about cashless bail, threatening to cut off funding for those jurisdictions that implement cashless bail. 

Cashless bail is a system that allows criminals accused of a crime to be released before trial without having to pay money. It is meant to be a system that is based on risk to public safety rather than ability to pay bail. Trump finds that cashless bail is a threat to order and public safety, not to mention a drain on public finances. That is why Trump's executive order will restrict the "Federal policies and resources" to jurisdictions with cashless bail policies. 

For some conservative policy groups who are for cash bail, cashless bail is a system that prioritizes the rights of violent offenders over the general public while releasing repeat offenders with impunity. Forgetting questionable constitutionality for a moment, disincentivizing cashless bail is an unwise move that does not help with reducing crime, has disparate impact on minorities, and is a waste of taxpayer dollars. 

Effects on Crime and Public Safety

Cashless bail is a relatively new policy concept. The earliest implementers were New Jersey in 2017, and New York started around 2019-2020. Even so, long-term data is starting to emerge. Jurisdictions who implemented cashless bail have been compared to those who did not in quasi-experimental studies. The Brennan Center for Justice (Craigie and Grawert, 2024) used a Difference-in-Differences (DiD) method to compare 22 cities with bail reform to 11 cities that did not. While there are rare instances in which defendants commit serious crimes, this study found that there were no statistically significant differences in crime rates, whether violent crime or property crime. 

Furthermore, a study from the Journal of Criminal Justice shows that longer pretrial retention translates into quicker new arrests (Silver et al., 2024). What this means is that unnecessary jail time could increase public risk while harming the individuals and families that this policy is claiming to protect. A study from the University of Chicago puts that recidivism rate as increasing by 6 to 9 percent as a result of cash bail (Gupta et al., 2016).

Racial and Economic Disparities

Cash bail disproportionately harms the poor and minorities. As of mid-2023, the Department of Justice data shows that 70 percent of those in jail were not convicted and were awaiting trial. While not broken down by race, this finding strongly suggests that the racial proportions of the pretrial population closely mirror those of the overall jail population, i.e., 48% White, 35% Black, and 14% Hispanic. This would indicate that cash bail disproportionately affects Black suspects. For those who cannot pay, the jail experience is coercive and horrific enough to pressure them into pleading guilty to a lower charge to avoid jail time, regardless of innocence. 

Considering that the median bail is $10,000, those who get harmed by this experience are those who do not have the money to afford bail. This ends up creating a two-tier justice system: one for those with money and one for those who are not well off. Because pretrial detention increases the likelihood of guilty pleas, those held pretrial are four times more likely to be sentenced than those released before trial. It also undermines the legal concept that one is innocent until proven guilty.

Fiscal Costs

Beyond the moral concerns, having increased reliance on cash bail translates into greater fiscal costs. In 2017, the Prison Policy Initiative estimated that cash bail cost $13.6 billion, which would be $18.1 billion in 2025 dollars. In 2023, the American Bar Association estimated those costs to be $14 billion. This is phenomenal considering that the pretrial jail population increased by 433 percent between 1970 and 2011. 

Removing cash bail would go a long way in lowering the burden on corrections systems and the mass incarceration that I criticized back in 2015. Then there is the broader economic costs. Research from the Brookings Institution shows (Miller and Wolfers, 2021) that those experience pretrial detention face a reduction of employment probability of about 9.4 percent, which translates into an average income lifetime loss of $29,000. Brookings estimated that eliminating money bail could increase aggregate U.S. income by up to $80.9 billion per year.

Conclusion

As we can see, there is no compelling public safety justification for cash bail. It is fiscally irresponsible and an affront to the limited government that conservatives are supposed to support to have such high rates of unnecessary incarceration. Rather than punishing poverty and disproportionately harming minorities, we should move away from the outdated cash bail system and adopt evidence-based alternatives that assess flight risk and public safety more effectively. Cashless bail is not about being soft on crime. It is about being smart on justice, fair in process, and responsible with taxpayer dollars.

Migrant Crime Wave Is a Myth: New Study Shows Immigrants Are Much Less Likely to Commit Crimes

During Trump's presidential campaign, he pushed the idea that there is a "migrant crime wave." Essentially, his argument that was due to the influx of immigrants, there is a corresponding and substantial increase in crime that is caused by these immigrants, particularly undocumented migrants. It is a justification that Trump has used for his mass deportation plan. Earlier this week, the White House lawn was lined with mugshots of arrested immigrants accused of crimes, thereby reinforcing the notion of a "migrant crime wave." Even about half of U.S. citizens believe that immigrants are causing an increase in crime (Gallup). The problem is that as much as Trump likes to scapegoat immigrants, the "migrant crime wave" is a myth.

Last week, the Cato Institute released an analysis entitled Illegal Incarceration Rates, 2010-2023. With all the stories on the news about "illegal immigrants committing crimes," you would think that they are a menace to society and are committing crimes like mad. But guess what this analysis found? "Illegal immigrants are half as likely to be incarcerated as native-born Americans. Legal immigrants are 74 percent less likely to be incarcerated than natives. If native-born Americans were incarcerated at the same rate as illegal immigrants, about 806,000 fewer natives would be incarcerated."     

If the "migrant crime wave" theory played out, there would have been a surge in crime in 2023 at the border states that corresponded with the record 2.3 million immigrants that were encountered at the southern border. Yet Texas' violent crime rate decreased 15 percent in 2023, and Arizona's violent crime rate dropped by 8.8 percent. More interestingly, Texas is the only state that tracks crime data by immigration status. Guess what Texas' data has to say? The homicide conviction rates for legal and illegal immigrants are 36 percent and 62 percent lower, respectively, than for native-born Americans living in Texas. 

Sadly, this moral panic about immigrants committing a disproportionate amount of crime is nothing new. Even a 1931 report from the Hoover Administration pointed out that blaming immigrants for crime is about as old as the U.S. colonies themselves. Yet the results remain the same. A working paper at the National Bureau of Economic Research looked at immigrant crime rates from 1860 to 2019 (Abramitzky et al., 2023). Over the past 150 years, immigrants have consistently had lower crime rates than native-born citizens. The authors estimated that immigrants are 60 percent less likely to commit crimes than native-born citizens. 

When you think through the reasoning, it makes sense that immigrants are less likely to commit crimes than native-born citizens. The fact that immigrants make the conscious decision to leave their home country behind for a better future shows resilience, ambition, and a focus on the future. There is a high deterrence factor, especially for illegal immigrants/undocumented workers, because the punishment is higher. Since immigrants have higher employment rates than native workers, better economic opportunity and a steady job mean less likelihood of committing crime. Also, immigrants are more likely to have stronger bonds with family and civil society, thereby reducing likelihood of crime.  

What does this all mean for the "immigration and crime" conversation? The data do not substantiate the idea that more immigrants equal more crime. Quite the opposite! The U.S. government previously tried implementing a program to deport illegal immigrant criminals called Secure Communities. It did not do anything to lower crime rates. Peddling this myth harms the Latino community in particular while fracturing the relation between police officers and the overall community. If anything, this fracture can foment mistrust that makes people less likely to report crimes or cooperate with the police. This can hamper the police's ability to conduct investigations, thereby increasing the crime rate. None of this surprises me since immigration creates black markets, and black markets make matters worse. 

As this report from the American Immigration Council illustrates, greater immigration keeps crime down because the social ties and robust community programs that are common with immigrants help maintain lower crime rates. Immigrants are a net positive for the economy (even "low-skilled" immigrants) and significantly contribute to tax revenue. The social and economic positives of immigration help keep crime rates down. If the anti-immigrant side is legitimately concerned with crime rates, what we should do is allow for more legal immigration while channeling more resources from immigration enforcement to ordinary police. Otherwise, the anti-immigrant, nativist crowd is all talk and no action that will actually help with reducing crime rates. 

Trump Revives His Trade War, This Time Under the Guise of Fighting the War on Drugs

The Tariff Man is at it again. Last Saturday, Trump imposed 25 percent tariffs on Canada and Mexico, as well as an additional 10 percent tariff on Chinese imports. The justification Trump used was to address the threat posed by fentanyl, and to use the Emergency Economic Powers Act to do it. So why China, Mexico, and Canada? Because according to Trump, the fentanyl comes from China and passes through Canada and Mexico before it comes to the United States. Granted, he was able to delay the tariffs on Mexico and Canada for a month because he received some concessions about border security as it pertains to fentanyl. Whether they resume in a month remains to be seen. At the same time, here are some reasons why this latest round of tariffs is ridiculous:

• China, Mexico, and Canada will not be paying these taxes. It is not the foreign countries that bear the majority of the tax burden for tariffs, but it will be the American consumers and American businesses. There were a dozen studies showing that tariffs during the first Trump term were almost entirely paid by U.S. consumers and businesses. The fact that U.S. citizens and enterprises will get hit much harder than China, Mexico, or Canada ever will undermines the argument. 
• Trump is undermining his trade agreement from his first term. Trump touted the United States-Canada-Mexico Agreement (USMCA) as the fairest and most balanced trade agreement the United States ever signed into law. This bout of tariffs violate his promise with USMCA, which can make him less trustworthy in future engagements with other countries. 
• This trade war will increase further trade retaliation. Other countries can and do retaliate in response to tariffs. The Federal Reserve concluded that retaliation helps offset what little benefit that tariffs develop. The Peterson Institute for International Economics found that the GDP of all countries involved will lower as a result of the tariffs and subsequent retaliation. 

• Previous tariffs hurt the American people. When Trump implemented the tariffs in his first term, what happened? Trump's tariffs cost the country $51 billion in economic output, a reduction of wages by 0.14 percent, and employment decreased by 166,000 jobs. Bush Jr.'s tariffs cost 200,000 jobs and $4 billion in lost wages. What about the tariffs of Trump's tariff mentor, William McKinley? They resulted in lower productivity and higher consumer prices.
• Trump's tariffs are likely to hurt the American people again. Last week, Trump justified the tariffs by saying that they will make America rich and very strong. Too bad he is wrong on that front. Not only did tariffs not work in the past. The Tax Foundation estimated that these tariffs would shrink economic output by 0.4 percent over the next decade while amounting to a tax of $800 on the average household. The Peterson Institute for International Economics calculated that it will reduce the average household's purchasing power by $1,200 per year. Trump still has not learned that you cannot tax your way to prosperity. 

• Trump's argument about tariffs and economic prosperity does not hold. If tariffs are so great, why does Trump simply implement them no matter other nations decide to do? Why did he take them off the table instead of go ahead with the tariffs if they are so great? If tariffs are simply tools to threaten other nations with and then Trump removes them upon compliance, then tariffs were never about economic prosperity. 
• Nor does his argument about stopping border crossings. Trump also said that he wanted to implement these tariffs because he wants to "stop the flood of illegal aliens." This is humorous because a tariff is a subpar way of going about it. Why? As the American Enterprise Institute (AEI) brings up, tariffs appreciate the value of the dollar. A dollar with a higher value makes working in the United States more attractive to immigrants, thereby increasing border crossings. 
• And fentanyl will get cheaper. More immigration will not be the only result of the appreciated dollar as a result of the dollar. To quote AEI again, the exchange rate appreciation would lower the dollar price of fentanyl because the fentanyl would not be subject to tariffs. Cheaper fentanyl would mean greater consumption, more substance abuse, and more overdoses, which is exactly what Trump purports to be preventing. 

Conclusion. These tariffs are not about generating prosperity for all, but about inducing fear and compelling behavior. Not only do tariffs harm the economy, but these particular tariffs will undermine Trump's goals of stopping fentanyl consumption and border crossings. Furthermore, Trump's actions effectively gives him the ability to start economic war without notice or oversight. To quote Charles Cooke from National Review, "They [the tariffs] are constitutionally suspect, statutorily usurpative, diplomatically toxic, and culturally chaotic." Instead of making America great again, Trump's tariffs will make all countries involved worse off.

Measure 110 Had Its Limits, But Oregon Re-Criminalizing Drug Possession Is a Step Backwards

In 2020, the state of Oregon passed Measure 110. The point of this Measure was to decriminalize all drugs. Instead of jail time, the punishment was a $100 fine or a completed health assessment by a qualified center. It took less than four years for this experiment to end. Late last month, Oregon re-criminalized low-level drug possession due to an increase in opioid deaths and nuisances related to public drug use. My reaction is similar to my reaction last week when Idaho got rid of its syringe services programs: re-criminalizing is not going to do any favors. Below are some preliminary findings about the Oregon experiment to make me wonder about Oregon's recent decision.  

Measure 110 did not increase drug deaths. Brown University Professor Brandon del Pozo found that once adjusted for the rapid increase in fentanyl that came to Oregon later than it did the other states, there was no association between Measure 110 and an increase in fentanyl. These findings are consistent with a study from JAMA Psychiatry (Joshi et al., 2023).

Measure 110 did not encourage drug use. There are some preliminary survey data to suggest that this is the case. An RTI International survey of 467 Oregonian drug users found that only 1.5 percent of respondents started using drugs after Measure 110 began. 

There have been fewer arrests since Measure 110. Since Measure 110, there have been 83 percent fewer possession of controlled substances (PCS) arrests (Russoniello et al., 2023). Fewer arrests mean fewer interactions with the criminal justice system, particularly in terms of prosecution and incarceration. This translates into fewer law enforcement costs. 

Postscript. There are limitations to the findings here, at least in part because it has been less than four years. I made that caveat last year when analyzing the public health impacts of marijuana legalization. Between a fentanyl wave that swept the United States, the COVID pandemic, and a delay in funding for harm reduction programs, I am not surprised. It is also an issue that Oregon did not take it far enough. Similar to what I brought up with last year on Maine's partial prostitution legalization, doing it partway can either cause more problems or keep many problems intact. As Cato Institute scholar Jeffrey Miron brings up, "Legalizing [or, to a lesser extent, decriminalizing] possession, but not production, does not eliminate the underground market, so violence and quality control issues remain." Until these drugs are brought to the legal market, consumers are unsure as to the dose or purity of what they are purchasing. 

There is potential for success of decriminalization. As I pointed out last year, Portugal's twenty-plus years of drug decriminalization has been a success. However, without addressing the decriminalization or even legalization of the production, the success for decriminalization is going to be limited, especially in comparison to legalization. 

In spite of Oregon only partially decriminalizing, it beats the alternative of taking the step backwards that Oregon did. Oregon gave up on serious drug policy reform too soon. All re-criminalization is going to do is divert drug users to jails while doing very little to deter illicit drug usage. Prohibition and criminalization compound the effects of what is a public health issue, not a criminal issue. Why Oregon is going to revert back to prohibition, the very policy that got the Beaver State into this mess in the first place, is indeed a puzzlement. 

9-6-2024 Addendum: A study from the JAMA Network released this week found that decriminalization did not cause the overdose mortality; it was the increase in fentanyl (Zoorob et al., 2024).

Idaho Banning Syringe Services Program Is a Stab in the Back of Idahoans

Last week, the state of Idaho took a step backwards in public health. Idaho's Governor Brad Little signed HB617 into law, which repeals the ability for harm reduction organizations to operate syringe service programs (SSP). Also known as "needle exchange programs," an SSP provides a wide range of services, including "access to and disposal of sterile syringes and injection equipment, vaccination, testing, and linkage to infectious disease care and substance use treatment."

Why did Idahoan lawmakers get ride of their SSPs? They were concerned that SSPs increase drug use and opined that there was not enough evidence to show that SSPs incentivize substance abusers to seek treatment. Here is the problem with that line of thinking. According to the National Association of Counties, SSP participants are twice as likely to reduce the frequency of substance use and three times more likely to stop using substances all together. Even so, advocates never promoted SSPs for that purpose. 

The main purpose of SSPs was to provide drug abusers with a cleaner, safer alternative. This "meet them where they are at" approach is meant to reduce the spread of disease. SSPs have been shown to reduce HIV and Hepatitis C by 50 percent. SSPs have reduced syringe litter (Levine et al., 2019), which means less likelihood of being pricked or injured by a needle. In Idaho, the program collected nearly 600,000 needles, which kept them out of public places. Furthermore, SSPs are not shown to increase crime or illicit drug use. As a matter of fact, SSPs save upwards of $7.58 [in 2014 dollars] for every dollar spent (Nguyen et al., 2014). The cost savings for SSPs is quite high (Ruiz et al., 2019). If you want more information on how beneficial SSPs are, you can read this 2023 meta-analysis from the U.S. Department of Veteran Affairs here.

Much like we could not mask our way out of the pandemic, we cannot criminalize our way out of the opioid crisis. As a 2022 research paper from Cato Institute shows, such drug paraphernalia laws obstruct harm reduction. Criminalizing these programs will make users more likely to use dirty needles (Marotta et al., 2021) and cause a rebound in HIV cases (Zang et al., 2022). Instead of keeping those who use drugs safer, re-criminalization will decrease their likelihood to survive. Idaho's abandonment of a program clearly shown to protect those who use drugs, as well as the community as a whole, is putting its citizens at risk. 

Meta-Analysis Shows That "Systemic Racism" Does Not Really Exist In U.S. Criminal Sentencing

Today is Martin Luther King Day. It is hard not to think about the man and the legend. MLK had to face Jim Crow laws, which de jure forced racial segregation between black and white people. MLK was arrested 29 times, including the so-called "crime" of  sitting at a lunch counter with white people. Even after the Civil War, the justice system treated African-Americans unfairly in more ways than one. The Civil Rights Act of 1964 was a turning point for civil liberties, which included overturning the Jim Crow laws. I would not expect changes for racial attitudes to happen overnight, but it has been about six decades since the Civil Rights Act. I have to wonder if the criminal justice system has improved since then. 

If you listen to the Far Left, the answer to that question is a resounding "No!" Their thesis is that systemic racism is epidemic in the criminal justice system, and as such, is rotten to its core because of how it treats racial minorities. For advocates of this theory, the fact that the overtly racist laws by and large no longer existing does not matter. Those arguing that systemic racism exists either argue that it comes in form of there being implicit bias within the system or that institutional factors result in systemic racial disparities in the judicial system. In spite of removing de jure racism, proponents argue that the system de facto remains racist and White supremacist.

Part of my issue of the "systemic racism" argument is with the framing. Racism depends too much on intent and belief, which is an issue because the vast majority of criminal justice laws being scrutinized are not de jure or explicitly racist. It assumes that any disparity is prima facie discrimination or racism, a concept that I refuted last year. The other issue with framing is that "systemic" is too vague of a term to describe anything meaningful. As African-American linguist and Columbia University professor John McWhorter points out, "this usage of 'systemic racism' is more rhetorical bludgeon than a simple term of reference."

My bigger contention is the fact that the argument violates the logical fallacy of begging the question, which is an argument in which the premise assumes the truth of the conclusion. In the context of critical race theory and the "systemic racism" argument, it means that those who question the theory are "systematically deceived" because they are not "in the know":

If someone begs the question and foreswears any counter-evidence, then the idea becomes unfalsifiable. This is irrational. Every challenge to one's viewpoint can then be dismissed a priori...When a claim is taken to be impervious to criticism, it loses rationality given its irrefutable dogmatism. 

I know that people on the Far Left like to argue that logic or objective, linear thinking are part of "white culture" or "white supremacy." It means that their arguments about systemic discrimination cannot be criticized.....or so they think. I value logic, facts, and rationale over emotion grasping towards one's preconceived notions, especially when talking about public policy. That means I am going to scrutinize the theory, especially when it has major implications for criminal justice policy. 

We should be asking ourselves here whether the facts line up with a story about systemic racism or not. This is exactly what two scholars from Stetson University did when they published their meta-analysis last month on the topic of race, class, and criminal adjudication (Ferguson and Smith, 2023). These scholars examined 51 studies that have been published on the topic since 2005. Their main finding was that "neither class nor race biases for criminal adjudications for either violent or property crimes could be reliably detected." The exception noted in the meta-analysis was drug crimes, which is significant because drug crimes often have strict sentencing. Even then, the effect sizes were very small (i.e., 1.6-1.8% of the variance in criminal adjudication).  

I am not here to say that discrimination is nonexistent in the criminal justice system. There are other aspects to consider, such as arrest rates, innocence rates, or rates at which certain people are stopped by police officers. Conversely, sentencing is a major aspect of the criminal justice system because it determines how badly one is ultimately punished for committing a crime. 

The near absence of sentencing bias in terms of class and race are surprising given what "conventional wisdom" is on the topic. Yet it makes sense why I have not seen people clamoring to laud these findings. Much like with climate change or COVID, it would not make for good news if something is not in crisis mode. For the Far Left, it means losing control over the political narrative. I talked about this concept a couple of weeks ago when covering how growing income inequality has not really been a thing in the past six decades.  

If the criminal justice system is not in the disarray that the "systemic racism" crowd is purporting, it means they have less political power. This is more than having an arguably cynical view about political power, although I honestly would call it "being realistic." As the authors of the study also point out, such a view is detrimental to society because reduces public confidence, creates more social discord, and reduces community cooperation with criminal justice authorities, all of which erode the criminal justice system and have the potential to increase crime. Plus, it perpetuates our post-truth world when political narratives matter than reality.

This is not to say that reforms could be made, a topic which I have written in past pieces. On the whole, I am frankly relieved at the finding in these studies. Mitigating and ultimately eliminating racial bias should be something every free, democratic society should aspire towards. For me, it is marvelous that the United States is, in at least one aspect, becoming a more perfect union. I hope that we as a society can continue towards this trend in a more neutral, impartial criminal justice system. 

Maine to Show How Partial Prostitution Decriminalization Will Give the Shaft to All Parties Involved

Although I aspire to keep apprised of everything going on in the world, the truth is that it is not possible. There is only so much time and effort one can dedicate to current events. Sometimes current events do not come up on my radar until later. That is how I felt when I read an article from Reason Magazine entitled Maine's Bad Prostitution Law Could Be Coming Soon to Your State. Prior to reading it, I did not know that Maine enacted a law to partially decriminalize prostitution or that in July 2023, it was the first state to do so.  

Maine adopted what is referred to as the Nordic [Criminal] Model. Why is it referred to as the Nordic Model? Because Sweden was the first to adopt it in 1999. Norway and Iceland later adopted the model in 2009. Essentially, the Nordic model is an approach that criminalizes prostitution customers but not sex workers. The idea behind this approach is that punishing the clients will reduce demand for sexual services. I take multiple issues with this legal approach to sexual activity. 

The first is that it makes the paternalistic assumption that all sex workers are victims and are incapable of consenting to sexual activity, whereas clients are exploitative and unscrupulous. Instead of empowering sex workers (most of whom are women), such an approach infantilizes them. This is not to minimize the prevalence of human trafficking or child prostitution, both of which are ethically problematic due to their coercive nature. It does, however, exclude and ignore the reality that there are consenting adults that are willing to pay for sex or willing to get paid to have sex. After all, there is a reason why prostitution has been referred to as the "world's oldest profession." Sex is a highly pleasurable act, and as such, there is an understandably high demand for sexual services.

Under the Nordic Model, it is clear that the client gets punished because the client is still de jure punished for paying for sex. By not legally punishing sex workers, it seems like the Nordic model helps sex workers. However, that is far from being the case. The fact that purchasers of sexual services are punished still keeps the market an underground market. This means that most of the aspects of criminalizing prostitution remain intact. While some find criminalization acceptable, I do not and I have not since I wrote a piece on legalizing prostitution in 2013. The Nordic Model presents a few issues for sex workers:

1. While proponents state protecting sex workers as a benefit of the Nordic Model, the Nordic Model exists to reduce demand for prostitution and ultimately eliminate the demand for commercial sex services. Tangentially, this reasoning falters considering that the Nordic model does not reduce the demand for sexual services (Kington and Thomas, 2018) because again, people really like sex. But let's get back to the crux of the issue here. Sure, the sex workers do not get sent to jail for being sex workers under the Nordic Model. For those who rely on that revenue to pay their bills, that provides little comfort for sex workers because fewer clients means less income for them. Plus, this means accepting worse work in the sex trade, which brings me to my next point...

2. The clientele under the Nordic Model is reduced to those who are willing to break the law, which increases the likelihood of high-risk and/or violent encounters. This is not mere conjecture. A 2023 study from the University of Chicago shows that prostitution legalization lowers rape rates, whereas criminalization, notably under the Nordic Model, proliferates sexual violence (Gao and Petrova, 2023).

3. Under decriminalization, it is still illegal for sex workers to work together and provide mutual assistance, to work in safe locations, or the employ people to help keep them safe. Plus, clients will be more reluctant to undergo screening processes prior to having sex.  This means that sex workers cannot take basic measures to help ensure their occupational safety, as was the case in the Canada case study (McDermid et al., 2022). A report from the London School of Economics found not only did the Nordic Model make clients more dangerous for sex workers, but also that sex workers were more likely to face eviction or deportation (Vuolajärvi, 2022). By keeping prostitution in the underground market, it makes it more difficult for sex workers to gain a sense of empowerment. 

4. According to a study from Reframe Health + Justice Consulting (D'Adamo, 2021), the impact on sex workers from implementation of the Nordic Model included the following: shifting power balances to favor clients, increases in violence and stigma towards sex workers, decrease in income, increased use of substances, and decrease in health outcomes (e.g., increased stress and fatigue). A report from the American Civil Liberties Union (ACLU) similarly found that the Nordic model increased stigma and discrimination of sex workers while reducing health services (ACLU, 2020, p. 10).

Postscript. Endangering sex workers and lowering their quality of life is not exactly a ringing endorsement of the Nordic Model. Aside from sex workers and clients, this Model also screws over law enforcement. Why? Because they are spending time and resources to police private, consensual sex acts. This argument is all the more important considering that Maine, much like the rest of the United States, has endured police shortages since the pandemic. Last year, the towns of Limestone and Dixfield, Maine had to shut down its police stations due to shortages. The police could be pursuing actual crimes instead of victimless ones. 

Conflating consensual adult behavior with exploitation is a direct assault on bodily autonomy specifically and freedom generally. To respect sex workers and their profession, we need to fully decriminalize sex work and treat it as if it were any other economic service. Only then will we take the right step in civil liberties as far as sex work is concerned. 

Graffiti Decriminalization Has No Place in Civil Society

I recently came back from a sublime vacation in Colombia. I did so much in 11 days. I tried scuba diving, mud-bathing, paragliding, and riding and ATV for the first time. I also went surfing, learned salsa dancing, went on two separate hikes, and so much more. One of the issues I ran into during my trip was during my stay in Bogotá. One of the first things I noticed as I took a taxi through Bogotá was the graffiti. I have traveled through other cities before, including Chicago, New York, Philadelphia, Mexico City, Quito, Paris, and Stockholm. Yet never have I seen as much graffiti as I did in Bogotá. 

It made me wonder why Bogotá was saturated with graffiti, whereas the other two cities I visited in Colombia (Cartagena and Cali) did not have that level of graffiti. In 2011, a 16-year old Bogotano by the name of Diego Felipe Becerra was spray-painting a picture of Felix the Cat on the walls of an underpass. Police caught Becerra in the act and killed Becerra as he was fleeing the scene of the crime. When a police colonel manipulated the crime scene, the people were in an uproar. This political pressure created by the protesting resulted in the subsequent decriminalization of graffiti in Bogotá. 

The fact that Bogotá has a ton of graffiti makes sense. When something is decriminalized or legalized, you tend to get more of it because the barrier of criminalization is out of the way. Yet I found the proliferation of graffiti in Bogotá to be more than aesthetically unappealing. It was unsettling, as if it were an external symbol of the tumultuous nature of Bogotá. 

Before continuing, I need to make the distinction between graffiti and street art. For one, graffiti tends to be more word-based, whereas street-art is more commonly image-based. About 80 percent of graffiti comes in the form of tagging. There are also throw-ups, blockbusters, wildstyle, and other forms of graffiti, but tagging is by far the most common. Street artists use other materials, but graffiti is typically created with spray paint. Street art is also perceived to be more positive than graffiti. This could do with the fact that street artists almost always ask for permission first, whereas those spray-painting graffiti do it when no one else is around to make sure they do not get caught. This latter distinction is where I take issue with graffiti. 

The pro-graffiti side argues that graffiti is a form of expression and is thus inherently democratic, especially for those who otherwise do not have a voice (e.g., Carroll, 2019). I indirectly addressed this topic the context of pro-Palestine protestors a few weeks ago. Not every form of expression constitutes as freedom of speech, including violence, actual threats, bona fide intimidation, incitement of violence, discriminatory harassment, or the heckler's veto. Graffiti falls under this list of exceptions. Why? 

It does not matter if you view graffiti as art or not. In libertarian thought, the premise of the nonaggression axiom is that your rights stop where mine begin, much like with second-hand smoke. Those who are spraying graffiti on walls are almost never doing it on their own property. They are most likely doing it on someone else's property. Property rights are valued highly, not only in libertarian thought, but in any free society. When you are spraying graffiti on someone else's property without their permission, it is not freedom of speech. It is a form of vandalism that is often accompanied with trespassing.  

Freedom typically does not come at a cost to someone else. I made this argument when I refuted the supposed "right to healthcare." In 2015, American paint manufacturer Valspar released a technical paper finding that graffiti removal cost $12 billion a year. In 2008, the Environmental Protection Agency estimated that it was as high as $15 to $18 billion. If you adjust those figures for inflation, the estimated cost of graffiti removal is higher. This does not even get into property devaluation. According to the National Association of Relators, graffiti can devalue a property by as much as 25 percent. If it were truly a matter of freedom of speech, it would not come with this sort of price tag. 

I am not going to get into the theory of whether graffiti is a gateway crime or if it encourages more crime. What I will say is that violating property rights by spraying graffiti has no place in civil society. If you want to artistically express yourself on someone else's property, ask for permission first. That is what the vast majority of street artists do. Yet we know graffiti artists do no such thing. 

Most libertarians believe in limited government. It is rarer for a libertarian to say when the government should actually be present. I find that graffiti is one of those times that the government should intervene. Graffiti is vandalism and visual pollution under the guise of free speech. It comes with the direct costs of removing the graffiti, as well as indirect costs of devaluing property. These negative externalities are violations of the nonaggression axiom, especially with regards to defacing private property. Aside from enforcement or improving programming alternatives so they do not feel inclined to spray graffiti, encouraging street art could be another step in dealing with the blight of graffiti. Whatever the solution might be, decriminalizing graffiti has no place in libertarian thought or civil society.

Note to Washington Post: Drug Decriminalization in Portugal Has Been a Success

In July 2001, Portugal underwent a controversial social experiment. Portugal decided to decriminalize all of its drugs for personal use, including such harder drugs as crack and cocaine. Portugal has had the longest and most extensive drug decriminalization policy in play. If successful, the Portuguese case study would have major implications for drug policy across the world. 

Last week, the Washington Post (WaPo) wrote a scathing piece on how Portugal was experiencing fatigue with the experiment. According to WaPo, the Portuguese police are blaming increased crime on the drug use. WaPo described streets littered with drug-related paraphernalia, not to mention the long waits for state-funded rehabilitation treatment. WaPo poses the hypothetical question as to whether Portugal should question the success of the decriminalization. It is a question that I would like to answer non-rhetorically and to do so with some questions of my own. 

How do Portugal's drug statistics now compare to those from pre-2001? This policy was implemented in the first place due to high levels of heroin use, increased drug addiction, and Portugal having the highest HIV infection rate in 1999. Things have gotten better since then. Oxford University data show that the drug disorder death rate in Portugal was 0.8 per 100,000. In 2019, it was 0.38 per 100,000. One metric that stayed constant was share of population with drug use disorder, i.e., 0.8 percent (Oxford). Even better, a study from the Institute of Labor Economics (Félix et al., 2017) and a study from Sage Journal (Cabral, 2017) show that Portugal's drug policy caused a decrease in heroin and cocaine seizures, drug offenses, drug deaths, and a reduction in the incidence of drug addicts among HIV individuals.

How does drug use in Portugal compare to other countries? WaPo could not even avoid a certain reality. As we see from European Union data, drug use rates in Portugal are still lower than other European countries. Portugal's cannabis use is less than half of other countries as Spain, France, and Germany. As for cocaine use, it is about a tenth of these countries. As we see from the Oxford data, Portugal's drug death and drug use disorder rates remained lower than that of the rest of Europe since decriminalization. 

Even so, WaPo points out that drug use, overdoses, and drug-related crime increase from 2019 to 2023. Based on previous research, Portugal's drug policy seemed to have been going well prior to 2019. What could have possibly happened between 2019 and 2023 that could have caused a change? Perhaps a once-in-a-century pandemic in which governments across the world imposes onerous and harmful lockdowns. The United Nations was astute enough to realize the increase in drug usage was not confined to Portugal, but was a worldwide phenomenon due to the pandemic. As for the fatigue, it is plausible that two-plus years of pandemic mode and all the corresponding fear-mongering contributed to wearing out the police officers. 

Drug decriminalization by itself was not going to solve everything. Congregating with drug users and disturbing residents, leaving needles on the streets is unacceptable. Even under a libertarian philosophy, those create externalities and constitutes as a violation of the nonaggression axiom that arguably should be handled by the police. It is not perfect, but decriminalization beats the social costs that come with drug prohibition. 

Providing access to needle-exchange programs, make naloxone more available, and improving drug rehabilitation services can all be part of a more comprehensive response that can further help Portugal with its progress. But make no mistake: Portugal shifting its drug policy from punishment and incarceration to harm reduction with decriminalization was a huge step in the right direction. 

2022 Ballots Eliminating Prison Labor in Four States is a Moral and Economic Victory

Prison labor, alternatively known as penal labor, is labor that is performed by incarcerated or detained individuals. While it is true that not all of prison labor is forced labor, much of it is. In June 2022, the American Civil Liberties Union (ACLU) released a report entitled Captive Labor: Exploitation of Incarcerated Workers. There are 1.2 million incarcerated individuals in the United States (ACLU). The World Prison Brief shows that United States as having a higher prison incarceration rate (505 per 100,000) than such authoritarian regimes as Russia (324), Saudi Arabia (207), Venezuela (199), and China (119).

65 percent of the 1.2 million incarcerated individuals (or 791,500 people) are compelled to work (ACLU). A lot of these individuals hold such positions as cooks, dishwashers, plumbers, or barbers. The labor accounts for $2 billion in goods produced and $9 billion worth of services rendered. The difference here is that incarcerated individuals are deprived of the right to refuse to work. You would think that after fighting a Civil War on slavery, we would not force U.S. citizens, even if charged with a crime, into involuntary servitude. Yet it is plainly permitted in the Thirteenth Amendment of the Constitution: 

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction. 

As of October 2022, there were 20 state constitutions that allowed for enslavement or indentured servitude as criminal punishment or a form of debt payment. In the recent midterm elections, five states proposed ballot initiatives to remove prison labor: Alabama, Louisiana, Oregon, Tennessee, and Vermont. Four out of five states succeeded. The reason why Louisiana did not pass its initiative was because of poorly worded ballot text. While these ballots will not immediately abolish compulsory prison labor in these states, it provides a pathway for future legal challenges on how to use prison labor. The fact that prison labor is still a practice in 2022 baffles me. 

For one, there is a moral argument that slavery is wrong. To mandate that someone works for little to no money should be unconscionable, especially in a country that is called "The Land of the Free." The ACLU report mentioned earlier points out the many issues with such indentured servitude as is practiced. Individuals are stripped of basic rights. They work in unsafe working conditions. They make anywhere from 13-52¢ an hour, which is lower than the minimum wage in Afghanistan, Bolivia, or India. If incarcerated individuals do not comply, they are threatened with solitary confinement, loss of family visits, or denial of sentence reductions. None of this accounts the fact that because slavery is widely seen as ethically unacceptable, it can undermine the legitimacy of the criminal justice system.

Then there is the economic cost. It might seem like a cash cow to get prison labor at a fraction of the cost to help reduce taxpayer burden or that their contribution is recompense for the crime the individual committed. However, I have to wonder if this view is shortsighted and does not take the whole economy into account. After looking at this detailed report from the Prison Policy Initiative, I ponder about mass incarceration and how many people actually need to be in prison. For example, 81.3 percent of people in jail (as opposed to prison) are not convicted. Not only are 1 in 5 incarcerated locked up for drug charges, but there are also all the misdemeanors. Also, most youth are incarcerated for non-person offenses. 

I could go on, but it brings up a bigger question surrounding cost, especially since the Prison Policy Initiative found that the annual cost of imprisonment is $182 billion in 2017 dollars. When accounting for such indirect costs as foregone wages, adverse health effects, and the effects of incarceration on families, a study led by Washington University of St. Louis found the annual cost of the prison system to be nearly $1.2 trillion in 2016 dollars (McLaughlin et al., 2016). 

Let's make a back-of-the-envelope estimate and use generous assumptions for the pro-prison labor side to see if the labor savings are worth it. Let's assume that the effective average minimum wage is $11.80 per hour when factoring in state and local laws. Let's take the lowest estimate from ACLU of 13¢ per hour for prison labor. That is a savings of $11.67 per hour that each prisoner works. Let's also assume that the 791,500 prisoners are working a grueling 60-hour work week, which is higher than the national average of 40.5 hours a week; and that they are working every week of the year. When you do the math ($11.67 of hourly savings* 60 hours * 52 weeks * 791,500 prisoners), the aggregate savings of paying prisoners pithy wages comes out to $28.82 billion. The savings in paying prisoners pittance does not even balance out the direct costs of incarceration, never mind the indirect costs.

With this huge price tag of mass incarceration, I have to ask if is there a more cost-efficient way to punish or rehabilitate individuals than throwing them in prison or jail. How much money would we save if we imprisoned fewer people and focused on the more serious crimes? 

I also ask this in the context of how imprisonment affects earnings. A study from the Richmond Federal Reserve Bank shows how incarceration reduces lifetime earnings for black men by 33 percent and 43 percent for white men (Gordon and Neelakantan, 2021). The Brennan Center found that being imprisoned reduces annual earnings by 52 percent (Craigie et al., 2020). In 2017, this translated to an aggregate annual earnings loss of $55.2 billion, which does not include the $317.1 billion loss for those convicted but not imprisoned (ibid.).  

The Brookings Institution points out how there is some evidence to show that prison labor has a modest, but significant effect on recidivism (Duwe and Henry-Nickel, 2021). The National Institute of Justice found that the Prison Industry Enhancement Certification Program (PIECP) helped reduce recidivism (Moses and Smith, 2007). The catch with PIECP was that it was a voluntary program, as opposed to the forced labor we see in many U.S. prisons. I can see how the effects would be modest. On the one hand, prison labor gives the incarcerated work experience where there would otherwise be an employment gap. On the other hand, the truly menial wages makes it basically impossible to save up money for the the many immediate costs (e.g., housing, food, healthcare) that these individuals face once released from prison. 

While it does not solve everything, I believe that eliminating forced prison labor is a step in the right direction for criminal justice reform. Not only do we stop dehumanizing people, but we also make our criminal justice system more economically efficient. I agree with the Brookings Institution that there needs to be an emphasis on better training for prisoners. Any prison work should be voluntary, including fair market value wages, and train them with transferable skills so that the incarcerated can make a smooth transition back to society after incarceration. 

8 Reasons Why a Menthol Cigarette Ban Should Go In the Ash Heap of History

A little over a month ago, the Food and Drug Administration (FDA) released a proposal to ban menthol cigarettes. Why go after menthol cigarettes specifically? As Harvard University points out, menthol is an agent added to cigarettes to create a cooling sensation that masks the harshness of cigarette smoke. There are bronchodilatory properties that allow for deeper penetration of cigarette smoke into the lungs. Because these cigarettes are smoother and easier to smoke, Harvard University points out that there is greater potential for addiction. By removing a more addictive version of cigarettes off of store shelves, the FDA hopes to reduce tobacco deaths, which are a leading cause of death in the United States. The CDC found that about one in five deaths (or 480,000 deaths) are caused from tobacco smoking. If a menthol cigarette ban could make a major dent in tobacco-related deaths, perhaps a ban could be justified, or so goes the argument. However, as we shall see shortly, the argument for a menthol cigarette ban is nowhere as credible as it seems at first glance. 

1. Past menthol cigarette bans do not have a great track record of reducing smoking. The Canadian banned menthol cigarettes in October 2017. This is significant because Canada is the country with the longest enacted menthol cigarette ban. Prior to 2017, menthol cigarettes were enacted on a province-by-province bases. How did their ban turn out? According to a study from BMJ Journals, 21.5 percent quit smoking. 59.1 percent switched to non-menthol cigarettes and 19.5 percent still smoked menthols (Chung-Hall et al., 2021). Keep in mind that a social desirability bias (i.e., a response bias in which the respondent wants to give an "acceptable" answer) is in play and could very well be over inflating the quit rates. Plus, there is nothing to be said about the possibility of relapse. 

A study from the National Bureau of Economic Research (NBER) diminishes the BMJ Journals' findings (Carpenter and Nguyen, 2020). Although menthol cigarette sales dropped, non-menthol cigarette sales were unaffected. There was no net effect on youth smoking rates because of substitution, which is noteworthy since the FDA made particular mention of youth in its proposal. For adults, there was more evasion than substitution. Instead of going for non-menthol cigarettes, adults purchased menthol cigarettes from areas in Canada that did not have the menthol cigarette ban. In either case, the ban did not have "any significant effects on population rates of cigarette smoking or quit behaviors for either youths or adults." 

Massachusetts is another example of these phenomena. Massachusetts is the only U.S. state to have banned menthol cigarettes, which has been part of a greater ban on flavored cigarettes. Yes, it is true that menthol sales in Massachusetts plummeted. What is also true, which the Tax Foundation illustrates, is that Massachusetts-based menthol cigarette smokers travelled to other states to get their menthol cigarettes. This form of evasion all but completely negated the effects of Massachusetts' flavored cigarettes ban.

In 2020, the European Union banned menthol cigarettes. According to a post-ban survey conducted by the Foundation for a Smoke-Free World, only eight percent of menthol smokers in eight European countries quit menthol smoking. As a side note, the University of Waterloo estimates that 1.3 million people would quit with such a ban (Fong et al., 2022). With an estimated 30.8 million smokers in the U.S. (CDC), that would mean a quit rate of 4.2 percent, which is an even lower quit rate than the EU post-ban survey suggests.

I do want to caveat that the data and findings from past menthol bans have their limits. The ban in the European Union is too recent to draw anything too definitive. The data we have on the Canadian menthol ban was prior to 2018 when menthol cigarette bans were on a provincial level in Canada. What the FDA proposes is on the federal level. At the same time, the experiences of Canada and Massachusetts show that demand for menthol cigarettes is high enough where people are willing to find workarounds, whether that is in the form of substitution or evasion.

2. A ban would drive menthol cigarette smokers into underground markets. Since we do not have data from national-level menthol cigarette bans, the best proxy we have is what happens when the government bans a widely-used product in the name of public health. Look at the War on Drugs or the prohibition of alcohol. Those bans did not reduce demand. They gave criminal dealers greater power while driving consumers into underground markets with riskier products. For more on the economic, health, and enforcement costs of the War on Drugs, you can read this Cato Institute policy brief here. 

This country already has an illicit tobacco market that accounts for 8.5 to 21 percent of the U.S. tobacco market, according to the National Academies of Science. Given that a) menthol cigarettes accounted for 37 percent of cigarettes smoked in the U.S. from 2019 to 2020 (CDC), b) the menthol cigarette market has a large customer base, and c) menthol cigarettes are a profitable product, international cartels and U.S.-based gangs are going to want to seize that opportunity to make more money. As such, it is reasonable to assume that such a ban would likely create a larger market for illicit cigarettes while driving cigarette smokers towards an even unhealthier cigarettes, as well as possibly towards harder drugs. 

3. Menthol cigarettes are not more dangerous than non-menthol cigarettes. The Journal of National Cancer Institute found that a menthol smoker's risk of cancer is lower than that of a non-menthol cigarette smoker (Rostron, 2012), which is an interesting finding considering this is the report that the FDA cited in its recent proposal. The risk of lung cancer could be up to 30 percent lower for menthol cigarette smokers versus non-menthol cigarette smokers (Blot et al., 2011). This might have to do with the fact that menthol smokers smoke fewer cigarettes a day (ibid.). In 2020, the U.S. Surgeon General admitted that there is not adequate evidence to infer that menthol cigarettes are more dangerous than non-menthol cigarettes (p. 12). 

4. Menthol cigarettes are not more addictive than non-menthol counterparts. Advocates for a ban stipulate that one of the issues with menthol cigarettes is that they are more addictive. However, that seems to not be the case. A 2022 study from the Journal of the National Cancer Institute, which was released a couple of months ago, entailed a large-scale study of 16,425 smokers. This study revealed similar quit rates between menthol and non-menthol smokers (Munro et al., 2022). Furthermore, there is not even a positive relationship between the distribution of menthol cigarettes and youth smoking rates (Bentley and Rich, 2020), which further undermines the argument that menthol cigarettes are more addictive.

5. A menthol ban would exacerbate disparities in criminal justice. According to the FDA, 85 percent of African-American smokers use menthol cigarettes, as opposed to 47.7 percent of Hispanic smokers, 41.1 percent of Asian smokers, or 30.3 percent of Caucasian smokers. Yes, smoking menthol cigarettes is an unhealthy habit, regardless of the race or ethnicity of the smoker. But it has also been a perfectly legal habit disproportionately enjoyed by African-Americans. Proponents of a ban argue for health benefits (especially for the African-American community), although that argument has been refuted above (See Points #3 and #4). 

What becomes an issue is that for a ban to take into full effect, it needs to be enforced. Who is going to enforce this ban? Local police officers, amongst other actors. A menthol cigarette ban would give law enforcement a reason to interact with individuals committing a victimless crime. Since menthol cigarettes are disproportionately smoked by black smokers, the brunt of the police enforcement of that ban will be in black neighborhoods. As the ACLU illustrates, a menthol cigarette ban will "disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction." Not only will there be more police enforcement, but criminal activity and violence will increase, especially in black neighborhoods (See Point #2). As we will see below (Point #6), there are better ways to lower smoking rates than a menthol cigarette ban. 

6. Menthol cigarette bans are not necessary when we have alternatives. As previously pointed out (Point #2), prohibition is a drastic, draconian response with multiple unintended consequences. The response makes even less sense when there are other viable options. There are patches, nicotine gum, or heat-not-burn devices that are alternatives. More to the point, e-cigarettes are shown to be a safer alternative to traditional cigarettes. Cochrane, which is a revered global group of health researchers, also found that e-cigarettes are more effective in helping with smoking cessation than traditional means (Hartmann-Boyce et al., 2020). Our focus should not be on criminalization, but incentivizing smokers to either find other methods to quit or at least use less damaging alternatives such as e-cigarettes (i.e., harm reduction).

7. Menthol cigarette bans come with costs. In public policy, there are no silver bullets. Public policy is about tradeoffs and whether or not the benefits have an acceptable cost. Calling for a menthol cigarette ban is not as simple as "saving lives." Even something as noble as saving lives or improving quality of life for current smokers has a cost. As already alluded to, there are going to be increased costs to enforcing the ban and the other costs related to the criminal justice system (Point #2). There will be the cost of increased criminalization and violence as a result. There is the matter of lost tax revenue. The Tax Foundation calculates that this will cost $6.9 billion of federal and state tax revenue during the first year of implementation (Boesen, 2022). There are also the costs of economic output and the jobs of manufacturers, wholesalers, and retailers of menthol cigarettes (see NYC-specific study here).

The costs as it relates to healthcare are not as straightforward. I brought up this point a decade ago when analyzing a cigarette sin tax in California. The Attorney General's Office (AGO) of California realized that disincentivizing smokers has a cost. If a smoker ceases being a smoker and lives longer, that means incurring future costs for healthcare and social services that would not otherwise be incurred. As such, the net fiscal cost is unknown (AGO, p. 17). As we will see below (Point #8), the decision as to whether one risks dying sooner from smoking or lives longer is not up to the FDA, but up to said individual.

8. Adults should smoke whatever cigarette they would like. This isn't the 1950s when smoking was commonplace and society was unaware of the unhealthy effects. We have education on the effects of smoking, public health campaigns, excise taxes, and indoor smoking bans, all of which exist to deter smoking. If people decide to smoke in spite of all of these deterrents, that is their choice. As the Reason Foundation brings up, "Adults in a free society should be allowed to make their own calculations of costs and benefits when it comes to what they put in their bodies, so as long as they are not harming others." 

Menthol cigarettes do not provide an additional threat in comparison to their non-menthol counterparts, so why should the government ban them? If the government is going to be this paternalistic, what's next? Should the CDC go around mandating that we all exercise three times a week or that we eat daily five servings of fruits and vegetables because obesity rates in this country are so high? Most Americans do not get enough sleep. Maybe the government should monitor our sleeping behaviors and mandate how much sleep we should get. There is no overriding, substantiated public health rationale that can justify such paternalistic intervention, and that includes a menthol cigarette ban.  

Postscript

To recap, menthol cigarettes are not shown to be more dangerous or addictive than non-menthol cigarettes. The evidence we have on menthol bans do not show they are particularly effective in lowering smoking rates. Instead, we see a large amount of substitution and evasion. It does not make sense to ban menthol cigarettes when we have other methods to lower smoking rates that do not involve the heavy costs and unintended consequences of prohibition. If the FDA does indeed end up criminalizing menthol cigarettes, it would be a step backwards both for public health and criminal justice. 

Why Supporting the Death Penalty Goes Against Conservative Values

Back in the 1970s and 1980s, crime rates were spiking in the United States. In response, both the Left and Right in the U.S. took a "tough on crime" approach in which tougher sentencing was seen as a solution to a dire problem. The strict sentencing and mass incarceration have shown their uglier unintended consequences, which would help explain why prominent figures on the Left and Right have been denouncing "tough on crime" policy in recent years. As nice as it is to have clarity on such an important issue, there is one issue within criminal justice policy that is lagging a bit: the death penalty. At the same time, support for the death penalty has declined from its 83 percent peak in 1993 to 54 percent in 2021, according to Gallup. The Pew Research Center puts support for the death penalty in the U.S. at 60 percent. In any case, there is still a fair majority that supports the death penalty. 

That is why it was intriguing to come across an article published earlier this month from Left-leaning news site Vox about how Republicans are becoming increasingly anti-death penalty. Looking at the Pew findings (see below), there remains a staunch majority of Republicans who support the death penalty, at 77 percent. Such red states as Kentucky, Georgia, Missouri, and Kansas are looking to curtail or eliminate the death penalty (Vox). The Utah legislature made an attempt to repeal the death penalty, although it was rejected by the majority of the state legislature. 

This trend on the Right to be more anti-death penalty is captivating because being pro-death penalty has been a notoriously conservative stance as long as I can remember. As such, this particular question wanted me to dig into why this is happening. I am sure that there are those on the Right who have done some soul-searching and realizing something incongruent with their other conservative beliefs and their position on the death penalty. I am neither speaking as someone who is conservative nor is pro-death penalty. At the same time, I used to be conservative and I used to be pro-death penalty. I understand the arguments in no small part because I used to make them myself. That is why I want to look at the death penalty from a conservative vantage point and outline facets that show why the death penalty is at odds with conservative values. 

1. Innocence and Error Rates. The government is run by people, and thus, is prone to error because humans are fallible. Here are some payment error rates from government programs: 25 percent error rate with the Earned Income Tax Credit [EITC], 21.4 percent for Medicaid, and a 10.7 percent improper payment rate for unemployment insurance. Since the government is fallible, why do pro-death penalty conservatives suddenly believe that the government is going to be flawless when it comes to the death penalty? Is it simply because it is a policy idea that these conservatives happen to like? The government does not magically give us what we want because it is appealing to our moral sensibilities. The truth is that government also makes mistakes when it comes to the death penalty. The risk of executing an innocent person is real, whether a wrongful conviction is brought on by a mistaken eyewitness, an overzealous prosecutor, an incompetent defense attorney, coerced confessions, scrupulous jailhouse snitches, or botched forensics. In addition to the 186 individuals that have been exonerated since 1973 (Innocence Database), the National Academy of Sciences made a conservative estimate that 4.1 percent of those prosecuted under the death penalty are innocent (Gross et al., 2014). Not only does the government wrongly execute people from time to time, there are times where the errors take place with the execution itself. According to University of Amherst professor Austin Sarat, 276 executions, or 3.2 percent of executions, between 1890 and 2010 were botched. 
• We are talking about a literal matter of life and death. One mistaken execution is too many, never mind an erroneous conviction rate greater than one in 25. If conservatives find comparable improper payment rates unacceptable with various government programs, they should a fortiori be all the more outraged with the death penalty's erroneous conviction rates. 
2. The death penalty is not shown to deter crime. One of the main arguments that the pro-death penalty side uses is that the death penalty is a deterrent, particularly for would-be criminals who are thinking about committing heinous crimes. The issue is that there is not evidence showing that the deterrent effect exists. The National Research Council reviewed more than three decades of evidence and were unable to find credible evidence that the death penalty deters. The studies the NRC analyzed that claimed a deterrent effect were considered flawed since they did not take non-capital punishments, e.g., life without parole, into account. The Brennan Center for Justice released a report to figure out what caused the decline in crime in the 1990s and 2000s (Roeder et al., 2015; p. 43). Among the Brennan Center's findings was that there was no evidence that the death penalty contributed to this decline. 
• If the death penalty were as unambiguously as much of a deterrent as proponents believe, the evidence would be there. I know there are multiple factors that can attribute to the murder rate. However, it becomes difficult to argue that the death penalty is such a strong deterrent when the murder rate of death penalty states consistently remains higher than the rate of non-death penalty states (Death Penalty Information Center; Federal Bureau of Investigation). 
• My final point has to do with expert opinion. Yes, the following data come from 2009 since that is the most recent polling available. At the same time, both criminologists and police chiefs at this time overwhelmingly believed that the death penalty does not act a deterrent. 
• Deterring future crimes is one of the main arguments used by proponents of the death penalty. The lack of evidence for a deterrence effect means that the death penalty is not keeping us safer. 
3. The death penalty collides with a pro-life stance. Not everyone on the Right holds to an anti-abortion stance, but most do. As of 2021, 74 percent of Republicans identified as pro-life (Gallup). The premise behind the pro-life stance is the belief that human life is sacred. Those who are against abortion argue that personhood is [one of] the main considerations for their anti-abortion position. If applied consistently, advocating for the totality of life would include accused murderers. Since alternatives such as life without parole (LWOP) can adequately punish without making the permanent decision of ending a life, a pro-lifer should prefer LWOP over the death penalty. 
• It presents a moral conflict to consider oneself pro-life but support a practice that literally has the word "death" in its name. The moral qualm from a pro-life stance is more pronounced when considering the erroneous conviction rate or that the death penalty has not been shown to protect more lives, as previously detailed. 
4. High cost of death penalty goes against fiscal conservatism. I wrote about the fiscal costs back in 2014, but it is worth a bit of an update. In 2017, the Oklahoma Death Penalty Review Commission found that capital cases cost over three times the amount of non-capital cases. For Nebraska, that would be a difference of $1.3 million between a capital case and a non-capital case. A fiscal impact report from the State of New Mexico calculated that it would cost the State an additional $7.3 million over the first three years of implementation. Susquehanna University also calculated the extra cost of a capital case, which is $1.12 million [in 2015 dollars] (McFarland, 2017). It makes sense that a capital case would cost more. There are greater expenditures in a capital case, ranging from more lawyers, witnesses, experts, and pre-trial motions, as well as a more extensive jury selection process and a separate trial for sentencing. Those are the costs before accounting for the lengthy and costly appeals process. 
• Looking at the death penalty from a strictly fiscal lens, a capital case is a bloated, inefficient program that drives up the costs of law enforcement. These are dollars that could go elsewhere in law enforcement, such as numerous unsolved homicides, violence prevention programs, services for victims' families, or modernizing crime laboratories. They could go to other programs, as well as helping reduce government debt. The cost of implementing the death penalty is more startling when you consider that the death penalty has taken innocent lives or that there is no evidence that it keeps us safer. 
5. Limited government. For those who are limited-government conservatives, the main premise is to restrain government power to make sure it does not overreach. Just read the amendments in the Bill of Rights and you can see a pattern of limiting what a government can and cannot do. Limited government also implies that the government still has some powers, including prosecuting murderers, arsonists, rapists, and fraudsters. Even in a pursuit of justice for victims of the most heinous of crimes, we need to limit the power of government. The death penalty is state-sanctioned power over life and death. As Lord Acton once wrote, "Power corrupts and absolute power corrupts absolutely." How is supporting the death penalty congruent with supporting limited government? 
• Giving the state a power that potent and that fatal is the opposite of being for limited government. There are nonlethal methods that are less costly (see previous point) and still deliver justice, which means that the size of government stays smaller as a result of not having the death penalty.

Postscript

The death penalty comes with multiple issues from a conservative point of view. If conservatives were to apply its criticism of government inefficacy consistently, they would scrutinize the death penalty as much as they scrutinize government welfare programs, unemployment insurance, and numerous government regulations. The costliness of the death penalty alone should make a conservative cringe. Combining that with conviction error rates, the percentage of botched executions, and the lack of evidence on deterrence should make that cost all the more unjustifiable. The fact that the death penalty is not proven to save lives makes the "pro-life/pro-death penalty" moral stance all the shakier. And how can a conservative maintain a limited government stance while supporting a Big Government policy that is inefficiently run and makes mistakes? I hope that support for the death penalty continues on a downward trend and that conservatives contribute to that decline.