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No Lobby for Criminal Defendants

There are two ways to balance a budget. Reduce outlays, or increase income. While the criminal justice system is not a business, the basic principles of finance still apply. And the basic principles of economics also apply.

The economic analysis of public institutions – called the Public Choice School – has, since the 1960s, revolutionized the way academics understand public institutions. Up until about 1960, economists and political scientists view governmental institutions as somehow different from other kinds of institutions in society. While everyone understood that a business was profit-seeking, the notion that a political institution was also driven by self-interest seemed odd to people before the 1960s.

A naive view prevailed: that once individuals entered public service, they somehow were governed by notions of the Common Good, such that their own personal welfare and personal incentives no longer mattered.

This, of course, is nonsense. People are people, whether they are in the private sector or the public.

The view that people are self-interested does not mean that they operate solely out of greed. Earning more money may be one way that people are self-interested. But people can be self-interested in other ways. They can like the prestige and power of a particular public office. They can want to increase the number of people who work with them because it enhances their position within the organization.

One of the easiest ways to understand self-interest in the public sector is to understand that politicians generally want to be re-elected. And re-election is often about securing more votes (and campaign donations) than the other person.

A significant literature has grown up around this issue of self-interest within a political or public framework, and a number of scholars have won Nobel Prizes for their work.

By leaving behind the naive view that public institutions work only for the common good – whatever that might mean – we can start to have a better understanding of how public institutions actually work in the real world.

Back to the issue of budgeting, particularly in the criminal justice system. The General Assembly passed a new law this year which imposes additional costs on criminal defendants – in order to expunge a record after a deferral agreement, a person must pay the court system $175.

As everyone knows, the criminal justice system is overburdened and underfunded – from DAs who make too little, to court appointed lawyers who make so little that it can create constitutionally suspect results.

One way to correct the funding issue in the criminal justice system might be to reduce the number of crimes. For instance, why we have a Driving While License Revoked law that for decades has been a Class 1 misdemeanor, is beyond me and many observers. It creates untold burdens, from clogged courts, to overworked public defenders, not to mention costs to the defendant.

In addition, while 16 states have legalized marijuana in part, we continue to punish marijuana violations in North Carolina as fairly serious misdemeanors, when you take into account that nearly every simple possession charge also includes a class 1 possession of drug paraphernalia charge.

You might think, given what I take to be an obviously high-cost-low-payoff scenario with respect to marijuana possession and DWLR cases, the legislature would re-evaluate its priorities.

The problem is that looking soft on crime is very rarely a recipe for re-election. So every year we get new crimes, but very rarely decriminalization of any sort.

Once conduct is criminalized, it is very difficult to get politicians to de-criminalize it because of a public that generally favors hard-on-crime approaches and never has to directly consider the cost.

So back we go to ways to fund a system that is overburdened – and that’s how we get absurd requirements, such as telling people who have done everything asked of them by the court system, that they have to pay $175 to get a record expunged.

Because, after all, there’s no lobby for criminal defendants.



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