Constitutional Bureaucracy?

In “How the Ruling Class Rules” (Winter 2018), John Marini, quoting Paul Moreno’s The Bureaucrat Kings, points out that neither bureaucracy nor the administrative state is “mentioned in the U.S. Constitution.” A few lines later, Marini praises “federalism” and “separation of powers”—despite the fact that, strictly speaking, these are not mentioned in the Constitution, either. Indeed, the 10th Amendment is the closest we get to an explicit reference to federalism; and, as for separation of powers, why does the president, our “executive,” play any role in our “legislative” process if the executive and legislative powers are to be constitutionally separate? Surely Marini knows it is an oversimplification to maintain, as he does, that the modern administrative state can be dismissed on the grounds that the Constitution doesn’t call for it. Ideas like federalism and separation of powers are embedded in our Constitution, not as passages of a prolix legal code but as abstract and, hence, contestable concepts. “Administration,” too, is one of these concepts, as Marini concedes: “No one would deny the importance of administration as a practical necessity for all governments.” (For what it’s worth, the word “administration,” not including its derivatives, occurs 91 times in The Federalist.) So the question Marini should have emphasized in his otherwise helpful review—and which Professor Moreno should have spent more time discussing in his otherwise admirable book—is not whether administration, but administration for what ends.

Charles Zug
Austin, TX

John Marini replies:

Charles Zug raises a reasonable, perhaps common, objection to my review of Paul Moreno’s book. As he points out, I decry bureaucracy, or the administrative state, which is not “mentioned in the U.S. Constitution,” but applaud federalism and separation of powers, although they too go unmentioned in the Constitution. Zug assumes that “ideas like federalism and separation of powers are embedded in our Constitution, not as passages of a prolix legal code but as abstract and, hence, contestable concepts,” and insists that “administration,” too, is “one of these concepts.” I agree that federalism and separation of powers can be understood as abstractions apart from a legal code. But are they contestable? Or are they dictated by practical necessity? They are not mentioned in the Constitution because they arise out of the political necessity of combining limited government with the consent of the governed. And they are established on the foundation of a political theory that requires those structural “inventions of prudence” (as The Federalist put it) as anchors in support of limited government. They remain embedded in the Constitution only as long as they contribute to those ends required by the principles which necessitate a Constitution in the first place.

I agree with Zug that the important question “is not whether administration, but administration for what ends.” What’s more, he’s right to suggest that the defense of constitutionalism requires more than adherence to the text of the Constitution itself. The Constitution is a political defense of popular government. It is a social compact established before the institutions of government are created. An abstract or theoretical view of justice is necessary to determine the ends of government. It was the abstract ideas of equality and liberty that established the principles of self-government and made a constitutional compact necessary. Those principles in defense of self-government also required limits that must be imposed upon government itself. The primary political purpose of the social compact is to protect the liberty of the people by institutionalizing the sovereignty of the people. Hence, the need for a written constitution. The political powers of government derive their authority from the Constitution. And those powers are circumscribed by constitutional and institutional restraints, in order to preserve the limits on the power of government. Unlike Mr. Zug, who thinks that separation of powers and federalism are embedded in the Constitution, I would suggest that those structural features no longer establish meaningful limits on the power of the central government. As a result, they no longer provide support for limited government.

Finally, I do not think administration can be understood as an abstract concept that can be made compatible with the restraints required by a limited constitutional government. It presupposes a kind of authority that is not derived from the political authority of the people. The autonomous science of administration rests on an authority outside politics. It is established on an empirical or scientific foundation, adaptable to any form of rule. It presupposes the necessity of separating theory and practice, means and ends, politics and administration, as well as facts and values. Because they denied that the power of government could or should be limited, the Progressives objected to those constitutional restraints. If those limitations on the power of government are unnecessary, a written constitution is not only unnecessary but an obstacle to social progress. For the Progressives, government and politics alone would establish the ground of both theory and practice, law and legitimacy. It is impossible to reconcile rational and political rule, or to legitimize the administrative state on the ground of constitutionalism.

Hayek and the E.U.

The international dimension of Friedrich Hayek’s work is often overlooked, because he himself was divided about it even in The Road to Serfdom. He must have realized when writing during the Second World War that a major cause of that war was to be found in nationalistic competition. That led him in his last chapter to call for an international order to prevent the most catastrophic malfunctioning of a world based on nation-states, i.e., war. Unfortunately, Samuel Gregg in his review overlooks this part of Hayek’s work, too (“Stimulating Debate,” Winter 2018). In my book, I argued that the European Union we have today is as close as it gets to what Hayek asked for: a non-coercive integration of free people who willingly accept that they want to work together, with the institutions moderating between them. We see in the E.U. both Keynesian and Hayekian suggestions for improving the workings of the economy. Here is a reason for hope of gradual improvements in the way our economies, and with them our societies, are run—clearly not perfect, but the best we have for the moment.

Thomas Hoerber
École Supérieure des Sciences Commerciales d’Angers
Angers, France


Samuel Gregg replies:

Friedrich Hayek certainly disapproved of nationalism. But for Hayek, evil ideologies and erroneous economic policies caused war, not nation-states per se. While interested in promoting peace between nations, Hayek—like Adam Smith—recognized that people find it hard to develop attachment to entities beyond the linguistic groups at the heart of most nation-states. We also know that, although Hayek was interested in promoting something like a European free trade federation, he was deeply skeptical of international organizations like the League of Nations and the United Nations, and positively detested the International Labor Organization. It is very safe to say that he would have regarded the present European Union as another example of many continental Europeans’ penchant for top-down centralized bureaucratic solutions to problems.

By contrast, John Maynard Keynes’s involvement in the creation of international economic organizations like the International Monetary Fund and the World Bank Group at Bretton Woods, as well as his skepticism about monetary orders like the pre-1914 gold standard, which relied upon nation-states voluntarily adhering to established rules, would likely have inclined him to support a supranational entity like the contemporary European Union.

Crime and Punishment

Joseph Bessette’s practical criticism of my book Locked In is that we need prisons to fight crime, and violent crime in particular (“More Justice, Less Crime,” Summer 2017). As he puts it, we have a “crime problem” more than a “prison problem,” and thus discussions like mine about how to cut prison populations are misguided.

Summarizing quickly, Bessette’s argument for prisons rests on a few, straightforward points: (1) we have a lot of crime, violent crime in particular; (2) our clearance rates—the rates at which people are arrested for crimes—are low, requiring us to be harsh to those we do punish; and (3) the recidivism rates of those we release from prison are high, demonstrating the need to keep them locked up for longer periods.

Each of his points is fairly sound empirically, although each is also somewhat more complicated than he suggests when we dig a little deeper into the numbers. These points, however, do not entail the conclusion he draws from them: that we need to rely on prison to (at least roughly) the extent that we do today.

Our crime rate today is about what it was in 1970, but our incarceration rate is about five times higher. Unless you think the average crime-aged American is much more violent today than in the 1970s—and I think it’s pretty clear that the Millennials are distinctly less violent than the similarly-aged Boomers were in the ’70s—then the scale of incarceration is again hard to justify purely on crime-rate terms.

As the criminologist Franklin Zimring has argued, perhaps we are punitive in part because we always fear that any crime could result in death. The chances of that are actually fairly low but, tellingly, Americans consistently think that crime has risen every year since 1991, despite steady and dramatic declines since then.

When it comes to clearance rates, Bessette’s argument is on its strongest empirical footing. Our clearance rates are low, often appallingly so. Yet this point in no way justifies the use of incarceration. If we under-police—or, more accurately, mis-police, focusing too much on lower-level crimes while major offenses like homicide and rape go under-enforced—then the solution should be to improve policing, not to rely more on prisons. The evidence is clear that if anything deters, it is the risk of detection and arrest, not the threat of long, far-off punishments that are imposed only on the off-chance that the offender gets arrested in the first place.

This shouldn’t surprise us. There’s long been evidence that those who tend to engage in criminal and anti-social behavior are very present-minded—partly because they tend to be young, but this seems to be true even when controlling for age. The immediacy of the officer down the block arresting them is always going to be a more forceful deterrent than some sort of delayed punishment. And it certainly means that making sentences longer than they already are will barely budge whatever deterrent effect the original sanctions had.

I argue that prison is a bad bet from an incapacitation perspective as well. People age into and age out of offending—a wealth of evidence demonstrates that people start criminal careers in their early teens with property crimes, turn increasingly violent in their latter teens and early twenties, and then generally subside in their late twenties or early thirties. So long sentences needlessly detain people.

Worse than that, we rarely impose long sentences on people until they are in their thirties—just as they are likely to start aging out of crime. The average age in California of a person receiving a third-strike sentence, for example, is 43! When California recently granted over 2,000 third-strike inmates early release, their recidivism rate was one tenth the state average (5%, versus 50%)—in no small part because they were older.

Bessette, however, points to a study from the Bureau of Justice Statistics (BJS) indicating that in a nationwide sample, 69% of all those released from prison over the age of 40 are rearrested within five years, a rearrest rate not much different than that for those much younger (there isn’t room to go into the tension between the BJS and California results). This leads him to conclude that perhaps those we send to prison don’t actually age out of offending, even if people generally do. I disagree.

Bessette says that of that 69% of older people who are rearrested, we don’t know how many are rearrested for violence. But we do: the BJS reports that 14% of those over 40 are rearrested for violence, compared to 28% for those 24 and under. Even those who have been to prison age out of crime, and out of violent crime in particular.

But there is a deeper conceptual issue to address. Bessette may have the causation backwards: even if he’s right that those leaving prison when old reoffend at high rates, perhaps that is because they were in prison. Prison can be traumatic both mentally and physically, it can sever social ties needed to successfully re-enter the outside world, and people’s skills, talents, and health often decline while locked up. Two additional reasons why older people offend less is that they are more likely to be married and to have a job, both of which appear to reduce the risk of offending. Time in prison clearly interferes and undermines both pathways out of crime. And research indicates that rehabilitation programs consistently work less well inside prisons than outside their walls.

This causal misstep is common in criminal justice policy: we impose tough sanctions, observe a person reoffend, and immediately assume it must mean we aren’t being tough enough. Perhaps, though, it means we are being too tough, or at least ineptly tough.

Now, to be clear, my points here do not compel someone to be an abolitionist, even from a purely public safety perspective; I myself am not one. There are some people who pose serious, ongoing risks that require us to confine them (although we could, and I believe should, do so far more humanely). And some evidence suggests that short, quickly-imposed sentences (more often in local jails than state prisons) can have powerful deterrent effects for specific problems related to drug abuse.

But if public safety is the goal, none of the numbers that Bessette raises require us to turn to the prison as the primary solution, or even a central one. The best estimates suggest that the crime-reducing impact of prisons today is close to (though not at) zero. There are other approaches that not only work better, but are more humane, less expensive, and impose fewer social costs on the communities that bear the brunt of enforcement.

John Pfaff
Fordham University
Law School
New York, NY


Joseph M. Bessette replies:

John Pfaff attributes to me positions regarding clearance rates and recidivism that I didn’t take in my review, and he then devotes much of his response to attempting to refute these positions. More significantly, he avoids the central element of my criticism by failing to detail the kinds of large-scale reductions in punishment that he calls for in his book for both nonviolent and violent offenders.

Let’s start with the second point in his quick summary of my position: “clearance rates.” Nowhere in the review did I argue that low clearance rates call for “harsh” punishment. (Indeed, I did not advocate “harsh” punishment on any grounds.) I do not believe that the burglars we catch should be punished more harshly because so many others get away with the same crime. (Note that although no one is arrested in 87% of the burglaries in the United States, it does not follow that 87% of burglars are never arrested for burglary. Burglary is a classic recidivist crime, and the more burglaries a criminal commits the more likely he is eventually to be arrested.) The burglars we do arrest and convict should be punished as much as they deserve for the crime(s) for which they were convicted, adjusted by considerations of prior record.

If, say, a state reduced the maximum sentence for burglary from several years in state prison to a few weekends in local jail, is it plausible that burglaries would not increase? Prosecutors like Mike Hestrin in California’s Riverside County have been arguing that this is precisely the effect that new laws in his state have had in sending convicted offenders, who used to go to state prison for at least a year, to local jails instead, where overcrowding results in just weeks or even days behind bars. As reported in the Valley News, he tells the story of “a known thief who had been stealing from the merchant’s store was caught stealing again and working a calculator on his phone. The arresting officers found out the thief had been adding up what he was stealing to make sure he was not taking more than $900 in merchandise so, if caught, he would only be charged with a misdemeanor, no matter how [many] times he was caught.” The result: a few days in jail and virtual impunity to steal again. Pfaff’s proposal in his book to bring U.S. incarceration rates more in line with those in Europe will effectively sweep all non-violent offenders from our prisons and jails, as well as many violent offenders.

On his third point, recidivism, once again my discussion was very brief and did not draw the conclusion that high recidivism rates “demonstrat[e]…the need to keep [prisoners] locked up for longer periods.” I introduced recidivism rates to raise a caution about a key argument in Pfaff’s book: “For almost all people who commit violent crimes…violence is not a defining trait but a transitory state that they age out of. They are not violent people; they are simply going through a violent phase.” Now, since the context of the discussion is all about incarceration, Pfaff seems here clearly to be discussing violent offenders in prison—that is, the one half of all state prisoners who were convicted of murder, rape, robbery, or aggravated assault. Unfortunately, Pfaff does not tell us what he means by “defining trait,” what period of time constitutes a “transitory state” (5 years, 10, 15, 20?), nor at what age “almost all people who commit violent crimes” cease to become dangerous.

Now, as the BJS data show, there is, indeed, an aging effect. No one who studies criminal justice would deny that when criminals age beyond their twenties their criminal activity decreases. But do the reported data show that “almost all” violent offenders in prison age out of violence by their mid-thirties or even their forties? Surely not. For example, while a fourth of those released from prison in their late twenties were arrested for a violent crime within three years, so were a fifth of those in their late thirties. While this is progress, it hardly shows the dramatic aging-out effect that is so important to Pfaff’s argument. Even those 40 and over (which, of course, would include some in their fifties and sixties) had an arrest rate for violent crimes equal to 58% of the rate for those in their late twenties. Put another way, BJS found that fully one in seven of the oldest released inmates (40 and older) were arrested for a violent crime within three years. It seems likely that the true violent offending figure over a five-year period (recognizing that about half of violent crimes never result in an arrest) is more like one in five (or possibly higher). According to the BJS report fully 69% of those at least 40 years old at the time of release were rearrested for a new crime within five years—not much lower than the 77% for all offenders.

So, why then are U.S. incarceration rates so much higher than the European ones Pfaff points to in his book, even adjusting for differences in murder rates? Much of the answer lies in the simple fact that even apart from murder, the United States remains a more violent place than your typical European country.

Nonetheless, it may well be that crime for crime, offenders in the United States are somewhat more likely to be sentenced to incarceration or to serve longer behind bars. Yet it is not obvious what the relevance of such a difference would be to American criminal justice policies. Europe has abolished the death penalty, but 31 American states retain it. But this hardly proves that Europe is right and the American states are wrong. More than a few European nations punish murderers much less severely than does the United States. Anders Breivik killed 77 in Norway in 2011 and received a 21-year sentence, which will expire when he is 52 (though a special preventive detention provision of Norwegian law may allow his indefinite confinement if he is judged to be a continuing danger). Volkert van der Graaf assassinated the Dutch politician Pim Fortuyn during a political campaign in 2002 and though found to be of sound mind was sentenced to just 16 years in prison and was then freed after 12. He now lives as a free man in the Netherlands. Such punishments for mass murder and political assassination are inconceivable in the United States, even in the states without the death penalty. I have not heard any responsible public figure in the United States argue that we should take our direction in punishing murderers from Norway and the Netherlands.

If Europe is to be Pfaff’s guide, he owes us some account of just how he would bring U.S. incarceration rates down to European levels without utterly undermining the deterrent and incapacitative effects of our criminal laws, and without destroying public confidence in our governing institutions for failing to justly punish the guilty.