The Volokh Conspiracy

Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so.  I think they are wrong — indeed, pretty clearly wrong.  As Mitu Gulati and I pointed out in a paper entitled “Mr. Presidential Candidate: Whom Would You Nominate?”, the relevant statute is ambiguous and, more importantly, applying the statute to a public promise like this one would violate the First Amendment.

And, as the title of our article suggests (and as we discuss at some length in the article), a presidential candidate identifying whom he would appoint is valuable to voters and should be encouraged.  Indeed, in this specific case Gingrich has conveyed useful information to voters.  Newt (and all other presidential candidates), please tell us more about whom you would nominate!

For what it’s worth coconspirator Eugene provided us with excellent comments on our draft and disagreed with our policy prescription, but I don’t recall him disagreeing with our legal analysis on this point (though Eugene can set me straight if I’m misremembering).

The statute, 18 U.S.C. § 599, provides in relevant part:

“Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.”

As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is “procuring support in his candidacy.” Is this trigger procuring support from the public for his candidacy or instead procuring support from the potential nominee (or perhaps the potential nominee’s associates) for his candidacy?

For those of you interest, I quote below the relevant portion of our article (sans footnotes; if you want to read it with the footnotes, click here):

We do not dwell on these arguments regarding statutory interpretation because any attempt at applying this statute to a candidate’s promises would violate the First Amendment.  In Brown v. Hartlage, the United States Supreme Court confronted a state statute very similar to § 599.  A candidate for county commissioner had promised to lower commissioners’ salaries if elected, and the Kentucky Court of Appeals found that this violated the following state statute:

“[W]hen a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain.”

The Supreme Court reversed, unanimously.  The Court treated this regulation of candidates’ speech as subject to strict scrutiny (one in a long line of cases so finding), and it invalidated this statute because it failed the first prong of a strict scrutiny inquiry: the identification of a compelling state interest.  The Court noted that there was a plausible claim that a promise to accept a lower salary would reduce voters’ taxes, but it found that the state’s interest in preventing vote-buying was not implicated because “Brown did not offer some private payment or donation in exchange for voter support; Brown’s statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens.”  As the Court emphatically stated:

“Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote.  The fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment.  We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.  So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one’s ballot.”

In Hartlage, there was at least a plausible interest that the state could articulate (avoiding vote-buying), even though it was unpersuasive.  It is difficult to see any legitimate—much less compelling—interest that the government would have in preventing corruption via prohibiting the naming of cabinet or Supreme Court nominees.  Put differently, it is hard to fathom what the state’s interest would be.  In Hartlage, there was a benefit to voters in the form of reduced taxes, but here there is no benefit to voters other than the likely nomination of appointees whom they would like to see in positions of power—and there is no conceivable state interest in preventing that from happening.

The government might have an interest in prohibiting concealed promises from candidates to potential nominees.  Secret promises give no information to voters, so their only benefit is a private one to the candidate and/or to the nominee.  That underscores the implausibility of any government interest in preventing the public naming of nominees in advance.  There is no corrupting element.

A different way to come at this question is to consider why the First Amendment is treated as placing a high value on electioneering speech.  One reason is because an active and full debate among candidates helps voters make more informed choices.  The voters are the customers choosing among products in the marketplace of ideas.  Reading the statute to prohibit the public disclosure of prospective nominees results in the implicit (and sometimes explicit) bargains between presidential candidates and prospective nominees being pushed underground.  And that in turn prevents voters from being able to evaluate the competing bargains that the different candidates have struck—the opposite of what First Amendment values push toward.  In effect, this occurred with Earl Warren’s appointment to the Supreme Court in 1953.  Dwight Eisenhower reportedly promised Earl Warren that he would be appointed to the Court as soon as a seat opened up.  The public, though, had no way of factoring this promise into their decision as to whether to vote for Eisenhower.

It is simply impossible to imagine any compelling interest for the application of § 599 to our proposal, much less a compelling interest to which application of § 599 would be narrowly tailored.  And it bears noting that in the years since Hartlage, the Court has, if anything, raised the First Amendment bar for regulations on campaign speech.  For example, the Court has held that a prohibition on candidates for judicial office “‘announc[ing] his or her views on disputed legal or political issues’” violates the First Amendment, despite the obvious state interest in avoiding the appearance of impartiality. The bottom line, then, is that application of § 599 to our proposal would run afoul of the First Amendment…

The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits).  Silberman’s opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity from inactivity, but such a distinction is novel and not grounded in doctrine; and that “Appellants’ view … expresses a concern for individual liberty that seems more redolent of Due Process arguments.”  Indeed, I will make a bold and perhaps foolish prediction: if Scalia is assigned the majority in the health care act case, my guess is that it will bear a considerable resemblance to the Silberman opinion.  Let me add that I think Scalia or Kennedy is the most likely author of the majority in the case.  And, yes, I do think Scalia (and Kennedy, for that matter) will vote to uphold the act.

With this blog post I’m returning to blogging after a long hiatus.  This one is on a topic that is not particularly relevant to my interests, but I find it remarkable: According to a new report on obesity in the U.S., the state with the lowest obesity rate today (Colorado) would have had the highest obesity rate in 1995.  And we are long past the point when we switched from the term “adult-onset diabetes” to “Type 2 diabetes,” in significant part because the disease has become so common in children.  One other tidbit: for most of human history, poverty has been positively correlated with being underweight.  Now poverty is positively correlated with obesity.  As you move down the income scale, obesity increases.  The same, by the way, is true of education (less is correlated with more obesity).  See pages 20-21 of the report.  Whatever the causes are, the results really startling.  I suppose the only good news is, to paraphrase Herbert Stein, this rate of increase cannot go on forever: at this rate, we’d hit obesity rates of 110% of the population in a couple of generations.

I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting.

Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court’s decision in FCC v. Fox affirms indecency regulations that make life worse for local stations.

Much ink has been spilled about the possible demise of print newspapers. Local broadcasters have been a bit better off. Their viewership has long been declining, but they had an ace in the hole – coverage of local events. If people wanted to witness live local events, they needed to watch a local television broadcaster. But that has started to change. Viewers, and thus advertisers, are being siphoned off by websites covering local issues and new local offerings from cable providers.

And now some local stations are halting coverage of live local events out of fear of FCC indecency fines that the Supreme Court upheld in FCC v. Fox. The FCC has long emphasized the importance of helping local broadcasters, but more recently it has focused on indecency – ruling that even a fleeting expletive can subject a broadcaster to fines in the tens of thousands of dollars for each fleeting expletive.

National networks can afford tape-delay systems, but many local broadcasters cannot. The problem, as Justice Breyer noted in his dissent in Tuesday’s opinion, is that the FCC’s indecency policy “places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events.” And, indeed, some stations have responded to the FCC’s policy by ending their coverage of local live events.

Viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of a local sports team’s victory, thus may have better luck with a locally oriented website than with their local broadcaster, since the First Amendment forbids indecency penalties for the website but not for the broadcaster.

The Supreme Court in FCC v. Fox did not rule that the FCC’s policy was consistent with the First Amendment, so the courts still have to address the argument (made by Justice Thomas in a separate opinion) that there is no basis for lessened First Amendment protection of broadcasters. But as matters stand right now, local television broadcasters have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.

As I suggested above, this is probably for the best. Only 14% of households rely on over-the-air television broadcasting (86% subscribe to cable or satellite). The government could reclaim and auction the spectrum used by broadcasters –- as it has auctioned most other frequencies –- and use a small fraction of that money to subsidize cable or satellite for those who cannot afford it. The reclaimed airwaves could then be opened to other uses that would allow for new and enhanced cellular and wireless internet services on newly plentiful frequencies. Many telecommunications policy analysts have long favored this option as the best fiscal and technological policy, but so far little has happened. Maybe the FCC’s revulsion at the “f-word” can achieve what fiscal and technological arguments couldn’t.

A number of commentators have asserted a causal relationship between Obama’s presidency and the stock market’s decline in the past couple of months — that the market has plunged because of Obama’s plans (see a short compilation here). But wait a minute — with today’s gains, the markets are now about where they were when Obama was inaugurated (the S&P 500 is up 2% since then, the Dow is down 2% since then). For all those who were so sure that the market was down because of Obama, I’d be interested to know how they explain the upswing. I’m not holding out hope, though, that they will say either that the downswing and the upswing were caused by Obama or, more sensibly, that they were wrong to be so confident about the cause of the downswing. (Of course, the reverse could also be true — people who donwplayed the causal connection might now trumpet the upswing. But I hope they won’t be so foolish.)

Fun note: since Michael Boskin’s article “Obama’s Radicalism Is Killing the Dow” appeared on March 6, 2009, the markets are up almost 20%. Time will tell (and I’m not holding my breath, given the unpredictability of the markets), but it may be that Boskin’s pessimistic message was a perfect (reverse) signal — the exact time to buy.

I was happily surprised to see that Michael Bennet has been tapped to replace Ken Salazar as a Senator from Colorado. I knew Michael from law school and working in DC thereafter, and he always struck me as very smart, able, and all-around impressive. What makes his appointment so surprising is that he is so tremendously … nice. People like that aren’t supposed to get ahead, least of all in politics. They’re the ones who get stepped on by the ambitious, ruthless climbers who reach the top (or so the movies suggest). In most every way Michael’s personality is totally unlike the stereotype of an average politician. For this reason, I would never have expected him to run for the Senate on his own. I am not saying that because he is nice he will be a better Senator, nor am I suggesting that anyone should support him on that basis. But I do find it striking that he was chosen. I also think it is not coincidental that he was appointed, rather than having to run for the office.

This also raises larger questions about differences between the sort of people who get elected and those who get appointed. I recall that, after a couple of scandals in Arizona (remember AzScam?) resulted in the appointment of a bunch of state representantives to replace those who were caught in the scandals, someone analyzed the appointed legislators versus the elected ones and found the appointed superior on most every metric (no, I no longer recall the details). This is most relevant (post-17th Amendment) to the selection of state officials, notably judges. The variation among states is wide, with some (e.g., Texas) electing almost everyone above dogcatcher, others relying heavily on appointments, and still others having appointees who then run for election when their term is up (the closest analogue to Michael’s position). Co-conspirator Eric and my colleague Mitu Gulati have done some work comparing judges who are subject to different kinds of appointments, though I can’t recall which of their papers are still in the “Don’t cite or circulate this” stage.

Anyway, I guess that sometimes nice guys do finish first.

You can look at the electoral maps for all previous presidential elections at sites like this and this. The electoral map that bears the closest resemblance to the predictions for 2008 is 1896. And it is a pretty close resemblance. There is one small difference, though: the parties have flipped. The core of the Democratic party in 1896 was the South and the Interior West (the plains states west to Nevada, but not including California and Oregon). The rest of the country went to the Republicans. I’m not the first to note this inversion, and political scientists have competing arguments about its significance, but it is striking that the core of the Republican party is now the same area (South and Interior West) that once were the core of the Democrats.

What’s on your mind?

I generally don’t post my scholarship on this blog, but this essay is a bit different — short (12 pages) and (I hope) modestly amusing while trying to make a serious point. So, with apologies for the shameless self-promotion, here is an essay entitled Roasting the Pig to Burn the House: A Modest Proposal, and here is the abstract:

This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting’s place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss – regulations that cost broadcasters significant amounts of money but have no impact on their behavior.

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best –- a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting’s spectrum usage, then it is probably a path worth taking.

A number of newspapers noted that the major stock market indices closed at their lowest levels since 2004. What I think is more remarkable is what this means for 10-year trailing returns. As of yesterday’s close, the S&P 500 increased by a paltry 6.25% over the last 10 years – roughly a .45% return per year. (The Russell 2000 index did better, reflecting small cap stocks’ outperformance of large caps over the last 10 years.) And what’s really striking is that October of 1998 was a trough in the market, and the S&P 500 rose 50% in the following two years (before, of course, precipitously falling). The bottom line is that, over a 10-year period, you would have been better off investing your money in just about anything other than the stocks of major U.S. corporations.

Yesterday’s Detroit Free Press and today’s Raleigh News & Observer ran an op-ed by Mitu Gulati and me on the desirability of Obama and McCain telling us who they would choose to be their Secretary of the Treasury. This is closely related to our article on presidential candidates naming their key people in advance of the election, which Eugene and I blogged about in July. Anyway, here is the op-ed:

In TV

I

Keith Poole is a major figure among political scientists, having gathered data on every significant congressional vote since time immemorial and analyzed those voting patterns. I just realized that he has put a ton of data and analysis online. It’s fasacinating stuff. Here are his data on polarization (note that party polarization is at its highest level since reconstruction). Here is his paper finding that gerrymandering does not cause polarization, and here is his paper finding that members of Congress adopt a consistent ideological position and maintain it over time.

But what spurred me to write this post are his data on the ideological mapping of Obama, Clinton, McCain, and Bush. The analysis shows very little distance between Obama and Clinton (both slightly to the left of the middle of their party), but what’s really interesting to me is the gap between Bush and McCain, and in particular how far to the right Bush is. Also interesting is how McCain’s voting party moved him to the left of his party as the parties became more polarized. Of course, a single left-right axis flattens out a fair amount of complexity, but they also have two-axis measures that capture more, and in any event their data still capture a fair amount. (If you want more on the reliability, validity, and signficance of Poole’s data, there’s tons on that. His numbers have been used for so long, by so many political scientists, that just about every aspect of them has been considered exhaustively.)

Yesterday Eugene was kind enough both to post a link to an essay with Mitu Gulati that I just posted and to make thoughtful comments on it. I appreciate both the posting and the comments – a big part of the fun of being an academic (or blogger) is discussing the merits and demerits of one’s ideas.

Eugene’s central point is his first one: the benefits to the candidate’s opponents of finding dirt on an announced choice are greater pre-election than post-election, because the opponents know that they might torpedo not merely the nominee but also the presidential candidate himself. I agree that the potential benefits to a candidate’s opponents of attacks on a candidate’s nominees are greater pre-election than post-election. But so are the potential costs. I will use McCain as my example, since he is behind in the current polls and thus has a greater incentive to try to shake up the race. If McCain’s opponents are perceived as unfairly attacking candidate McCain’s nominees, the public is likely to attribute the unfairness to Obama. Obama probably won’t persuade many people if he tries to say that the attacks were independent of him – people will likely believe that his people were involved in it, just as most voters believed that George H.W. Bush was involved in the Willie Horton ad. Indeed, if Obama tries to distance himself from attacks on McCain’s nominees, voters may see that as him trying to weasel out of responsibility. In other words, in the crucible of an election, when the battle between two opposing ideologies are personified in a race between two individuals, the benefits and costs of everything relating to the campaign are received/borne by those two individuals.

Now, it still may be that campaigns decide that a particular attack will win over more persuadable voters than it will deter. That’s the only cost and benefit that matter to a campaign – increasing your vote count and/or decreasing your opponent’s – and we can all imagine attacks that we think will work. But those things are very tricky to figure out in advance, and sometimes they blow up in the face of those peddling the information. It wasn’t an accident that John Edwards pointedly noted that Dick Cheney’s daughter is a lesbian – I’m sure he thought it would undercut Cheney. But my sense is that it cost his ticket more votes than it gained them. Or think about rumors that have actually circulated about the two existing candidates. My sense is that “Obama is a secret Muslim” has cost McCain more votes than it has Obama (because those who believe were largely going to vote for McCain anyway, and many in the middle find it distasteful for Obama’s opponents to try to stir up passions in this way). Or think back to the whispering campaign in 2000 that McCain was brainwashed when he was a prisoner of war in Vietnam. Some people spread it around in an attempt to tank McCain, but I think it likely turned off more people than it attracted.

Having said all that, I think that Eugene is correct to say that, pre-election, Presidential candidates are going to want to name people who are squeaky clean. The examples I gave in the previous paragraph are of attacks that many/most people would regard as unfair. But lots of aspects of one’s personal life (e.g., whether you have sex with prostitutes, or solicit sex in men’s bathrooms) are considered fair game, and presidential candidates are going to avoid people who seem to have any skeletons in their closet. This will lead to a preference for pre-election nominees who can credibly claim to be squeaky clean.

One way to achieve this is for the potential nominee or the campaign to hire an independent investigative firm to check her background. Eugene suggests that a campaign won’t find everything, but I suspect that Kroll will. Indeed, I imagine that Kroll will do at least as good a job as the FBI. But if I’m wrong about that, then the FBI could perform the background checks. They do such checks routinely, and this would just be moving up the time for a few of those checks. Eugene mentions that candidates might be worried about a hostile Administration getting information from the FBI. First, the notion of a hostile Administration releasing information in advance of a nominee’s announcement is in tension with the suggestion that opponents would want to wait to release harmful information until the announcement. Second, if information about an FBI background check were released to the public in advance of an announcement, the presidential candidate would (fairly) express his outrage at the Administration’s violation of the FBI’s processes. And I suspect that the charge would be effective – people do not like the idea of the FBI playing politics. The hostile Administration could try to remove its fingerprints from the leak. But, as with the release of unfair attacks, people will attribute the attacks to the party that benefits, and will associate that party (naturally enough) with the party’s presidential candidate.

Failing all of the above, a potential nominee could credibly claim to be squeaky clean based on a different sort of background check – the scrutiny that comes from running for office or holding other important political positions. Someone who has recently run for office can point out that her background was extensively researched by political opponents and the press, and that they found nothing. So, insofar as private or FBI vetting is unattractive, pre-election selection will tend to favor existing politicians for vetting reasons. As we note in the essay, we think that pre-election selection will favor existing politicians for another reason – presidential candidates will want to name people with a significant following (in the hope that are sufficiently popular to bring some persuadable voters to vote for the presidential candidate), and people with such a following will tend to be existing politicians who, not coincidentally, have already been subject to much scrutiny.

The larger point is that a presidential candidate will engage in a benefit/cost analysis: if he decides that the benefits to announcing a popular nominee are greater than the costs of vetting (the monetary costs will be relatively low, so we are mainly talking about the likelihood of the vetters missing something), then he will do it. For a candidate who is behind in the polls and is going to lose unless he shakes up the race, the benefit of attracting even a small percentage of voters in swing states will loom very large. If it looks like you are going to lose anyway in a winner-take-all game, your incentive is to start taking some risks. The worst that will happen is that you’ll lose, and you’re already on track to do that. And don’t forget the benefit to the voters, which is our real motivation in our essay: we as voters will learn more about the presidential candidate and the policies that the candidate’s team will likely pursue.

This post is already too long, so I’ll make just one more point: it is true that the scrutiny of the future decisions made by those named as potential appointees will be very great. But right now we live in a world in which lots of decisionmakers – and most troublingly judges – may trim their sails (or, worse, change their decisions) in order to improve their chances for nomination. I would prefer a world in which I know the person whose work we need to scrutinize (the person whose is named for a position pre-election) to one in which a dozen or more politicians or judges are secretly auditioning for that same position. And if the nominee takes a leave of absence, that’s fine with me. Any way I slice it, I prefer that transparency to the opacity of a bunch of judges trying to outdo each other in currying favor with a new President.

Maybe GM’s woes shouldn’t surprise anyone, but I find it remarkable that not only is GM’s stock trading at a 34-year low, but also that its market capitalization is $5.65 billion. That is less than 4% of Toyota’s market capitalization of of $144 billion.

This is particularly striking given GM’s enormous size and still-significant market share in a major industry. Another way of looking at it: Google’s market capitalization per employee, admittedly higher than most companies’, is $8,641,679. GM’s is $21,241 per employee.

Of course, GM is saddled with enormous legacy costs, a shift away from its most profitable products, etc. But still, it is remarkable that the entirety of its market value equals about half a year’s wages for each of its employees.

That’s the title of a paper that Royce de Rohan Barondes has posted on SSRN. Here’s the abstract:

This paper analyzes the relationship between the law schools attended by non-permanent judicial clerks and the frequencies of two adverse signals assigned by Shepard’s to their judges’ opinions: either a negative (warning) signal (roughly equivalent to reversal) or a signal indicating the opinion’s validity has been questioned. Using a sample of 12,966 opinions written by 95 federal district court judges, the portion of a judge’s non-permanent clerks from Yale Law School is found to be positively related to the likelihood the opinion will have a negative (warning) or questioned signal, which is statistically significant at the 1% level. There is a negative relationship between the average reputation of the law schools a judge’s clerks attended (better reputations being numerically higher) and the likelihood of his or her opinion having a negative or questioned signal, although that relationship is statistically significant in only some contexts.

As a Yale Law alum, I wish I could say that the paper’s findings don’t ring true. Alas, I cannot.

I will make two predictions: 1) Few lawyers who have expertise in the areas covered by the recently released Yoo Memorandum (part I here, part II here) will defend it as sound and persuasive legal analysis; 2) No more than a handful of such lawyers will agree with John Yoo’s characterization of the memo as “near boilerplate.”

One question this raises is the point at which one can fairly say that a given memorandum or opinion is unreasonable. But I want to focus on a different point: if my assumptions above are correct, this creates a great opening for opportunistic conservative legal bloggers/commentators. A majority of conservatives still support President Bush’s conduct of the war, and the Yoo Memorandum authorized techniques that were part of that conduct. Some supporters of Bush’s conduct will want to distance themselves from the sorts of activities that the Yoo Memorandum authorizes, but many diehard Bush supporters will presumably want to stand by their man, and the conduct of the war. So the very small percentage of lawyers who will defend the Yoo Memorandum, combined with the greater percentage of Americans who will defend the conduct authorized by that memorandum, presents a chance for legal commentators seeking prominence: take the unpopular position and infuriate most people, but gain the everlasting gratitude of a nontrivial segment of the conservative community.

Of course, the wisdom of this bet depends in part on that segment of the conservative community continuing to have power, and perhaps expanding their power. Will the Yoo/Addington/Gonzales wing of the conservative legal establishment have power in the future? If you think so, and your desire for power is greater than your qualms about endorsing what looks to be quite shoddy legal reasoning, then now is your chance to write an op-ed/blog post on why the Yoo Memorandum is right. I’ll be curious to see who seizes the opportunity.

Andrew Olmsted, who blogged at Obsidian Wings, was killed yesterday in Iraq, where he was serving in the military. Months ago he composed a post to be published in case he died. It’s here, and it’s heartbreaking. There may be other notes that people serving in Iraq wrote to be read in case they died, but I haven’t seen any of them, and I can’t imagine they could be more powerful than this one. He says that he doesn’t want his death to be used by either side in the debate on the Iraq war, but he also notes that it is easy to gloss over the human costs of war, and that many people do it. Olmsted’s post makes that harder to do.

The New York Times has posted the latest data on contributions to Presidential campaigns here. Among other ways of slicing up this information, you can click on a candidate’s name and see a map showing the size of contributions from different cities/states that each has received through the third quarter.

For almost all the candidates, the giving is quite lumpy. The east and west coasts give more money (not surprising, as more wealth is there), and particular candidates have giving hotspots. Romney has raised a ton of money in Utah (more than he has raised in Massachusetts), Thompson has raised more than a quarter of his funds from people in Tennesee, Obama is strong in Illinois, etc.

The notable exception to this lumpiness is (drum roll, please) Ron Paul. His campaign contributions are spread out quite evenly (he’s done better in Texas than elsewhere, which is not surprising, but his Texas total is only three times his haul from the state of Washington and a bit smaller than funds from California). And his receipts come from all over. Indeed, and perhaps unsurprisingly, he does better in smaller states, which may have a higher percentag of people who lean libertarian. He has received more money from North Dakota, for example, than either Romney or Giuliani. You can decide for yourself whether this means we should consider him to be the only candidate with a true 50-state appeal, or the candidate for people in sparsely populated and over-represented (in the Senate) states.

I noted two days ago that one possible explanation for the actions of at least some of those who apparently pressured* Michael Drake to rescind the offer to Erwin Chemerinsky was a desire to derail the new law school. As the LA Times article quoted below notes (Hat tip to Brian Leiter), a delay in the opening of the law school is now a very real possibility. I can’t get inside the heads of those who made the decision, but if they wanted to do maximum damage to their law school, they couldn’t have done a much better job. From the LA Times article:

Officials said the turnaround on Chemerinsky could delay the opening of the law school — scheduled for 2009 — and so tarnish the institution that it would be difficult to assemble the scholars and staff needed to establish the school as one of the nation’s best — UCI’s long-cherished goal….

[O]fficials leading the launch of the law school said the decision makes it likely the school will not be ready to accept its first class as scheduled in 2009.

In order to meet the target, plans called for a dean to be in place this fall and for six to eight senior faculty members to then be hired this academic year. The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch.

“We had three other finalists, and one of them would have definitely done it a week ago,” said psychology professor Elizabeth F. Loftus, a member of the committee. “If you asked them today, I don’t know. I don’t think the law school will be derailed, but who knows what’s going to happen next?”

*On the subject of external pressure, the same article in the LA Times says:

Loftus said Thursday that the chancellor told the committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus’ account to The Times but asked to remain anonymous.

“I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche.”

UC Irvine’s decision to rescind its offer to Erwin Chemerinsky (who, I should note, is a colleague and friend) is so outrageous and boneheaded that I can muster only three explanations:

1) Incompetence:
This one is obvious. Erwin’s views are well known. Any remotely competent administrator should have vetted any fears about his ideology before offering him the job.

2) Cowardice:
This one, too, is obvious. Maybe a big donor (rhymes with “wren”) or a potential big donor, or someone with political power, balked at Erwin’s politics and wanted him ditched on that basis, and UC caved. Wow, what a profile in courage. That should make all members of the UC community sleep well at night, knowing that leaders will give in to donor/political pressure.

3) Willful Self-Destruction:
This one is less obvious. Suppose you were a Regent, or some other powerful person in California, and you strongly opposed creating another publicly funded law school but knew that it was moving forward. What would you do? You might try to inflict maximum damage on the law school before it even started, in the hope that this would so harm the school’s prospects that it would never open. And I can’t think of a better, realistic way of sabotaging the new law school than this one. Yes, I can imagine better unrealistic ways, but in terms of things that could ever happen, this one is an amazing carom shot. In one fell swoop, UC Irvine has lost the best Dean candidate it’s going to find, made itself look incompetent and/or cowardly, and made it unlikely that anyone of merit will want to be a Dean or even a professor there (unless they change their minds and offer Erwin the Deanship after all). It’s hard to do all those things in single move, but UC Irvine managed to thread that needle. When something that self-destructive occurs, you have to wonder whether it was intentional (at least on the part of some). Remember that the California Postsecondary Education Commission voted against a UC Irvine law school, and the Regents voted without debate to reject that recommendation and move forward on the school. It certainly wouldn’t surprise me to find out that some of those Regents didn’t want the school to go forward but didn’t have the votes to block it. So instead they effectively blocked it this way.

Note, of course, that this last explanation doesn’t rule out one of the first two. Indeed, all three could be at work — incompetence on the part of those who should have vetted, sabotage on the part of those who didn’t want a law school, and cowardice on the part of those who caved in to the arguments of the saboteurs. A trifecta of outrageous behavior.

In addition to the big school cases that were decided today, the Supreme Court also decided an antitrust case, Leegin v. PSKS. In Leegin, the Court overruled a 1911 case (Dr. Miles Medical Co. v. John D. Park & Sons Co., for those of you scoring at home) to find that vertical price restraints should be judged under the rule of reason rather than be treated as per se unlawful (as Dr. Miles had held). You can be forgiven if your eyes are already glazing over.

What’s striking about this case is the lineup — 5-4, with the conservative 5 (Kennedy writing) against the liberal 4. Obviously, I am oversimplifying in using the terms “conservative” and “liberal,” because the camps aren’t that neat. But that’s precisely what’s so remarkable about this case — they fell into that familiar 5-4 lineup on an antitrust case with little ideological baggage. Maybe we shouldn’t have been surprised when politically charged cases like today’s school cases just happened to have 5 conservatives against 4 liberals. But this is antitrust, not some hot-button issue.

Indeed, recent antitrust cases have not followed ideological lines. Some antitrust cases have been unanimous, like Weyerhaeuser v. Ross-Simmons from this Term, NYNEX v. Discon from 1998, Verizon v. Trinko from 2004 (Stevens concurred separately in that one), and State Oil v. Khan (which overruled a prior precedent) from 1997. Others have been split, but have not rigidly followed ideological lines. Notably, California Dental v. FCC from 1999 was 5-4, but Souter wrote with most of the conservatives and Kennedy dissented with most of the liberals. Meanwhile, Bell Atlantic v. Twombly from this term was 7-2, with Souter writing and Stevens and Ginsburg dissenting. And the predictions for Leegin this Term were not for a 5-4 split of conservatives and liberals. So what gives?

I fear that this reflects shadowboxing and the spread of ideological battles from hot-button cases to other ones. What the dissent in Leegin really says is that there is no good reason here to reject stare decisis, and emphasizes that the arguments against Dr. Miles have been aired for 50 years but Congress has not seen fit to reject it. Translation: respect stare decisis, and look to Congress; please don’t go too far now that you have the majority, and respect the decisions of Congress (which happens to have had a recent change in its leadership). The majority responds that stare decisis is not an inexorable command and that Congress’s failure to act is of no great significance. Translation: we will overrule as we see fit, and don’t feel the need to defer to Congress on this or much of anything else.

The dissent highlights this shadowboxing at the end, where Breyer flatly states: “It is difficult for me to understand how one can believe both that (1) satisfying a set of stare decisis concerns justifies overruling a recent constitutional decision, Wisconsin Right to Life, Inc., ante, at 19-21 (Scalia,J., joined by Kennedy and Thomas, JJ., concurring in part and concurring in judgment), but (2) failing to satisfy any of those same concerns nonetheless permits overruling a longstanding statutory decision.”

It could all be coincidence, of course. The liberal justices have dissented on some previous cases. But I fear that what’s really happening is that ideology has infected an area of law that used to be about as non-ideological as the Supreme Court gets. And if ideology were to infect this area of the law, then why should we have any confidence in the Court’s antitrust judgments, and why shouldn’t Congress rein in the Court’s broad authority under the antitrust statutes?

In Madness and Civilization, Michel Foucault documented a remarkable continuity of confinement through different stages of Western European history, from the lazar houses for lepers on the outskirts of Medieval cities, to the Ships of Fools navigating down rivers of Renaissance Europe, to the establishment in the seventeenth century of the Hôpital Général in Paris — an enormous house of confinement for the poor, the unemployed, the homeless, the vagabond, the criminal, and the insane.

“Leprosy disappeared,” Foucault writes, “the leper vanished, or almost, from memory; these structures remained. Often, in these same places, the formulas of exclusion would be repeated, strangely similar two or three centuries later. Poor vagabonds, criminals, and “deranged minds” would take the part played by the leper . . . . With an altogether new meaning and in a very different culture, the forms would remain—essentially that major form of a rigorous division which is social exclusion but spiritual reintegration.”

Social exclusion unites the asylum and the prison. The question that I ask in my research is whether we should think of the two populations as somehow linked. Is it possible that today’s category of the “criminally deviant” is tied to yesterday’s category of the “mentally defective”? In our social research, should we think of the two populations as a whole, rather than as two separate parts?

I am by no means suggesting that the same people have been moved from one institution (the asylum) to another (the prison). That is far too simplistic – for at least three important reasons.

Mental Illness: First, although the rate of mental illness among prison inmates is probably higher than among the general population and although the problems surrounding mental illness in jails and prisons have reached crisis proportions, it’s not the case that our prisons today are overwhelmingly housing persons with mental illness. For one thing, the war on drugs has taken an enormous toll on African-American communities, and has contributed to an unconscionable increase in black male incarceration that has nothing to do with mental illness. Bruce Western at Princeton documents this better than anyone in his new book, Punishment and Inequality in America.

Estimates of the number of mentally ill inmates vary. According to a 1999 report by the DOJ, about 283,800 inmates in prisons and jails suffered from mental illness at the time – which represented about 16% of jail and state prison inmates. A more recent 2006 DOJ study reported that 56% of inmates in state prisons and 64% of jail inmates across the country reported mental health problems within the past year. Steven Raphael at Berkeley has a fascinating paper and he finds that deinstitutionalization from 1971 to 1996 resulted in between 48,000 and 148,000 additional state prisoners in 1996, which according to him, accounted “for roughly 28 to 86 percent of prison inmates suffering from mental illness.”

A new paper by Steven Erickson and his colleagues reviews the literature on prison mental illness and shows that the estimates for mental illnesses, broadly defined, range from 16% to 90% and for severe mental illness from 6.4% to 39%. “These rates,” they suggest, “are well above those found in the general population of approximately 30% for mental illness and 6% for severe mental illness.” The paper is extremely skeptical of these estimates and casts doubt on the surveys based on methodological shortcomings.

For sure, it is exceptionally difficult to compare mental hospital residents of the 1950s to prison populations of the 1990s because the definitions, diagnoses, and medical routines have changed so much. Remember, the whole infrastructure of our mental health system has collapsed – making it unrealistic to measure the key attribute of “prior mental health contacts.” Moreover, drug use and psychotropic medications have changed enormously. But despite all that, the two populations must differ along somewhat-objective criteria of mental illness.

Race, Sex and Age: Second, the demographics of the two populations are different, as I discuss here in the Texas Law Review at pages 1781-1784. The prison population today is, overall, younger, much more male, and more African-American than the mental hospital populations at mid-century. In 1966, for example, there were 560,548 first-time admissions to mental hospitals, of which 310,810 (55.4%) were male and 249,738 (or 44.6%) were female. In contrast, new admittees to state and federal prison were consistently 95% male throughout the twentieth century. In 1978, African Americans represented 44% of newly admitted inmates in state prisons. That same year, minorities represented 31.7% of newly admitted patients in mental hospitals.

(But note that those populations were also changing internally. Henry Steadman and John Monahan report in a 1984 study that, in their sample, “the mean age at hospital admission decreased from 39.1 in 1968 to 33.3 by 1978. The percentage of whites among admitted patients also decreased, from 81.7% in 1968 to 68.3% in 1978.” There was a similar shift in the prison admissions data: “the mean age of prison admittees was 29.0 in 1968 and 28.1 in 1978″ and the percentage of whites among prison admittees decreased from “from 57.6% in 1968 to 52.3% in 1978″).

The War on Drugs: Third, a large portion of our current prison population consists of non-violent drug offenders. The war on drugs has helped fill our prison populations, especially our federal prisons. The following graph, from a forthcoming book with Frank Zimring at Berkeley on the Criminal Law and Regulation of Vice, traces the total sentenced population of the federal prison system and the number of federal prisoners for whom the most serious offense was a drug offense:

As I noted before, drug use may intersect in complicated ways with mental health issues, and some users may well be self-medicating. But the numbers associated with the war on drugs clearly transcend these possible connections.

As a result, the story is not simple trans-institutionalization. It is not simply substitution from one institution to another. But that does not mean that the populations are not sufficiently connected or similar in more important ways to be thought of as one – or counted as one. Could it be that we use the categories to socially exclude people we perceive as marginal, disorderly, abnormal? Do we use the categories to sift out those who offend our sensibilities and who we perceive as dangerous? Michel Foucault observed in Madness and Civilization that “There must have formed, silently and doubtless over the course of many years, a social sensibility, common to European culture, . . . that suddenly isolated the category destined to populate the places of confinement. To inhabit the reaches long since abandoned by the lepers, they chose a group that to our eyes is strangely mixed and confused. But what is for us merely an undifferentiated sensibility must have been, for those living in the classical age, a clearly articulated perception.”

Today, the categories of “mental illness” and “criminal deviance” seem very distinct. With the exception of those inmates who are diagnosed as suffering from mental illness, it seems wrong or confused to lump together the insane and the criminal, to mix the two categories. But is it? Will later generations question our own inability to see the continuity of social exclusion and confinement?

One place where the categories seem to be melding together is in the prediction instruments that we use to identify future dangerousness. We are now profiling the criminally dangerous, the mentally instable, and future sexual offenders in very similar ways. I trace the history of our profiling instruments in a new book, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age.

We’ve seen a rash of new actuarial instruments intended to predict future violent behavior. In terms of sexual violence, these include the Static-99, the Violence Risk Appraisal Guide (VRAG), the Hare Psychopathy Checklist-Revised (PCL-R), the Minnesota Sex Offender Screening Tool (MnSOST-R), the Sex Offender Risk Appraisal Guide (SORAG), the Sexual Violence Risk-20 (SVR-20) and the HCR-20 — as well as, for the very first time, released in 2005, violence risk-assessment software, called the Classification of Violence Risk (COVR).

How accurate are these prediction instruments and how will they affect the profiled populations? John Monahan, a leading authority on prediction instruments, a proponent of these instruments (in fact co-author of the new COVR software), and the director of the MacArthur Violence Risk Assessment project, offers a nuanced assessment. Writing in The Observer, Monahan asks: “How good are psychiatrists and psychologists at distinguishing which people with a mental illness will be violent? Research shows professionals are better than pure chance, but not much. Predicting harmful behaviour is like predicting bad weather. An inaccurate prediction doesn’t necessarily mean the clinician or the meteorologist has ‘missed something’; it may just mean the science of forecasting has a long way to go.”

Not much better than pure chance. Virginia just adopted a Sexually Violent Predators Act (“SVPA”) in April 2003 that provides for the civil commitment of sex offenders identified based on the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR) – an actuarial instrument. The RRASOR consists of four items (prior sexual offenses, age at release, victim gender, and relationship to victim) and scores as a sum these four items. A score of 4 or more on the RRASOR (the higher scores) is associated with a 5-year sex offense recidivism rate of 37% and a 10-year sex offense recidivism rate of 55%.

Fifty-five percent — and remember, these are persons who have previously been convicted (rightly or wrongly) of a sexually violent offense. That leaves almost half the relevant population misidentified, at least for that 10-year span. Accuracy and inaccuracy may be in the eye of the beholder. (I discuss the reliability of other actuarial instruments in Against Prediction, reviewing studies like these here and here). The question is, how will these new actuarial methods and predictions of future dangerousness shape the people in our total institutions?

UPDATE MAY 4, 2007: John Monahan tells me that Virginia last year changed it’s Sexually Violent Predators statute to require not the RRASOR but the Static-99. The Static-99 has slightly different cut-off scores depending on the age of the victim.

Andrew Gelman at Columbia University writes on his statistics blog here that the findings I discussed yesterday seem correct and don’t surprise him in the least. (He also has some entertaining reactions to some of the comments from yesterday).

I’ll confess that I not only find the results surprising, I also think that, if they are indeed right, they have farreaching implications for our existing (and future) research on prisons and their effect on unemployment, crime, education, and poverty, as well as our research on gun laws (think of the right-to-carry debates here, here, and here), the effect of abortions (think of the Donohue/Levitt thesis), the deterrent effect of the death penalty (think of the recent debates here), social control and disorganization theories, collective efficacy – and the list goes on.

In practically all those studies, we have used the imprisonment rate to measure society’s level of incapacitation. But the prison rate alone may not capture what we were trying to measure. The most straightforward interpretation of my findings is that neither the rate of imprisonment alone, nor the rate of mental hospitalization alone are good predictors of serious violent crime over the period 1934-2001. In contrast, the aggregated institutionalization rate (aggregating the mental hospitalization and prison rates) is a strong predictor of homicides. This suggests that there is something going on in the relationship between mental hospitalization and prison — perhaps a form of substitution — that should make us rethink entirely how we measure social control and incapacitation.

But since practically none of our studies on prisons, guns, abortion, education, unemployment, capital punishment, etc., controls for institutionalization writ large, most of what we claim to know about these effects may be on shaky ground.

Here’s a good example. My colleague Steve Levitt at the University of Chicago has a great paper on the crime decline of the 1990s published in the Journal of Economic Perspectives called Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not. In the paper, Levitt identifies the prison-population build up as one of the four factors that explains the crime drop of the 1990s.

Levitt estimates that the increased prison population over the 1990s accounted for a 12% reduction of homicide and violent crime, and an 8% reduction in property crime — for a total of about one-third of the overall drop in crime in the 1990s (see pages 178-79). The paper and its progeny have given rise to fascinating debates over the role of the police (Malcolm Gladwell takes Levitt to task in an interesting post here), the abortion thesis, and the role of broken-windows policing vs. the crack epidemic.

What interests me here, though, is that when Levitt extends his analysis to discuss the period 1973–1991, he sticks to the prison population exclusively and does not consider the contribution of the declining mental hospital population (see pages 183-86). As a result, Levitt is surprised that the drop in crime did not start sooner (see page 186). Regarding the period 1973–1991, Levitt writes:

“The one factor that dominates all others in terms of predicted impact on crime in this earlier [1973–1991] period is the growth in the prison population. Between 1973 and 1991, the incarceration rate more than tripled, rising from 96 to 313 inmates per 100,000 residents. By my estimates, that should have reduced violent crime and homicide by over 30 percent and property crime by more than 20 percent. Note that this predicted impact of incarceration is much larger than for the latter [1990s] period.” (page 184)

Based on prison data alone, Levitt is left with a significant gap between projected and actual crime rates for the period 1973–1991. Levitt concludes: “The real puzzle in my opinion, therefore, is not why crime fell in the 1990s, but why it did not start falling sooner” (see page 186).

The unexplained difference, though, vanishes if we include mental hospitalization with the prison rate in an aggregated institutionalization variable. I do the math in this paper here at page 1775. The increase in confinement from 1973 to 1991 would have been smaller (because of deinstitutionalization) and, based on Levitt’s estimates, this would have translated into a 12% decrease in homicides, not a 35% decrease. Levitt’s revised estimate for the total effect of his ten factors on homicide during the 1973–1991 period would be an increase in homicides of 3%, which is not far from the actual reported change in the UCR of a positive 5%.

In other words, using aggregated institutionalization data rather than prison data would eliminate Levitt’s disparity regarding the change in homicides. This is just one example that explains a gap. But think of all the other areas where the difference might undermine the results.

Here’s another example from the death penalty deterrence debates. The fact is that none of the existing extensive research on the deterrent effect of capital punishment has included mental hospitalization within an aggregated institutionalization rate. Instead, all the studies use prison rates only to get at a measure of incapacitation.

My study includes, as a control variable in the regressions, the execution rate for each state over the period 1934 to 2001. So we can get some idea of what happens when you use aggregated institutionalization rather than the prison rate. The results are interesting: in my fourth model (Model 4 of Table III.1 at page 33), the execution rate is positively related to homicide and statistically significant at .05, suggesting that, controlling for aggregated institutionalization, there may be evidence of a brutalization effect from executions: more executions, more homicide. The statistical significance does not withstand the introduction of demographic and urban variables, and in my most complete model (Model 6 same page) the coefficient is positive but unreliable.

Much has been written recently about the deterrent effects of capital punishment. John Donohue and Justin Wolfers have reviewed the recent studies, including state-level panel data analyses, and conclude that “none of these approaches suggested that the death penalty has large effects on the murder date” (page 841). When I include mental hospitalization, my findings are consistent with these conclusions, but in the process they undermine a lot of other research.

Practically all our criminology has failed to connect the prison to the asylum. For instance, Alfred Blumstein and Joel Wallman, in their account of crime trends in the introduction to The Crime Drop in America — generally perceived as an authoritative compilation — never address aggregated institutionalization. With regard to the sharp increase in crime in the 1960s, Blumstein and Wallman hit on all the usual suspects — the baby-boom generation, political legitimacy, economics — and include later the usual explanations for the 1990s crime drop — changing drug use patterns, decreased gun violence, New York-style policing, the federal COPS program, and increased incarceration. Notably absent in all of this, though, is the relationship between mental health and prison populations.

With the exception of research that specifically explores the interdependence of the mental hospital and prison populations, including some public health studies and some empirical research into the causes of the prison explosion (for instance here, here and here) published empirical research does not conceptualize the level of confinement in society through the lens of aggregated institutionalization (asylum + prison) but rather simply through imprisonment rates.

Even the most rigorous, recent analyses of the prison-crime relationship use only imprisonment data. Though a tremendous amount of empirical work has been done on long-term crime trends, structural covariates of homicide, unemployment, and the prison expansion, none of this literature conceptualizes confinement through the larger prism of institutionalization, and none of it aggregates mental hospitalization data with prison rates.

So in contrast to Andrew Gelman, I’m not only surprised by the results of the regression, I’m also extremely concerned about the implications regarding the state of our current knowledge and existing research. And, unhappily, in contrast to Gelman’s just-so post, I expect a huge amount of resistance.

Yesterday’s post triggered a lot of comments regarding this graph – it’s on page 23 of the new study on asylums and prisons that I was discussing previously. The figure graphs two time-series using national-level data: the overall rate of institutionalization in the United States (in mental hospitals and prisons) and the homicide rate over the period 1934 to 2001. The institutionalization trend line is scaled to the left-hand side and is high throughout the 1930s, 40s, and 50s; the homicide trend line is scaled to the right-hand side and rises sharply in the 1970s and 80s.

FIGURE: Rates of Aggregated Institutionalization and Homicide in the United States (per 100,000 adults).

In an earlier paper, I analyzed these data using a Prais-Winsten regression model to correct for autocorrelation in the time-series data. I found a large, robust, and statistically significant relationship between aggregated institutionalization (asylums and prisons) and homicide rates at the national level, holding constant three leading structural covariates of homicide (youth demographics, unemployment, and poverty).

The problem with using time-series data for a single jurisdiction (in this case, the entire United States) is that they typically provide weak power to rule out alternative explanations for the patterns observed in the data. This is something I’ve observed and written about in the context of Giuliani-style policing. (In an article with Jens Ludwig testing the broken-windows policing hypothesis, we showed that the time-series data for crime in New York City was not just compatible with a broken-windows policing theory, but also with what we call the “Broken Yankees Hypothesis” (BYH). It turns out that the strong performance of Billy Martin’s Yankees teams during the late 1970s coincided with a drop in homicides, and the consistent excellence of Joe Torre’s squads beginning in the late 1990s accompanied an even greater decline in homicides).

In order to test the national-level findings, I collected state-level panel data and ran clustered regressions. The results were truly remarkable. Using state-level panel data spanning the entire period from 1934 to 2001, including all 50 states, and controlling for economic, demographic, and criminal justice variables, I again found a large, robust, and statistically significant relationship between aggregated institutionalization and homicide rates. The findings are not sensitive to weighting by population and hold under a number of permutations, including when I aggregate jail populations as well.

To help visualize the relationship, I plotted the predicted values of homicide in the final model (Model 6) against the aggregated institutionalization rate. These, then, are the predicted values of homicide from the model including all the independent variables (aggregated institutionalization, real per capita income, demographics, execution rate, proportion urban, proportion black, and state and year fixed effects). The data are clustered by state, resulting in what appear to be some strings of observations.

Some readers have suggested that the study should include a model with the prison rate and the mental hospitalization rate as separate independent variables. John Lott recently wrote to me “I don’t understand why prison population and [mental hospitalization] only seemed to be entered in as a sum.” Eric Rasmusen similarly argues here that “There is another regression you absolutely must do: regress murder on [aggregated institutionalization], prison, and asylums all in one regression. That will separate out the effects.”

These are interesting points and something my superb colleagues at the University of Chicago, Tom Miles and Jake Gersen, had batted around with me earlier. My concern is the contribution of aggregated institutionalization and I am really not concerned about the relationship of the parts. I had included some of these regressions in the study, but for the sake of completeness, I just now reran the regressions using every possible permutation of aggregated institutionalization, mental hospitalization alone, and prison rates alone. Every possible permutation — all three, each alone, and every dual-combination.

Here’s a table summarizing my results. I’ll just note for those who are not steeped in stats that the first model, which includes all three independent variables is going to drop one of them. It’s actually impossible to use all three in the same regression. If you include the sum of two variables and each of those two variables, there is a co-linearity problem (since the sum is of course a linear combination of the two). Statistics programs fix this problem by tossing out one of the variables. In this case, STATA dropped the mental hospitalization alone variable. So Model 1 is really identical to Model 6.

But I’ve presented them all for full and complete disclosure. They do not affect my conclusions. Models 2 and 4 are in the draft of the study. Model 5 represents a race-horse comparison of mental hospitalization and prison rates. Notice that mental hospitalization alone is slightly less significant, but still significant, whereas prison rates alone are not. Again, my concern is not with the relative contribution of the parts, but of the whole. Model 6 includes aggregated institutionalization and prison rates – and here too, aggregated institutionalization remains statistically significant with a coefficient about the same size (slightly larger).

New Table: Harcourt Results on State-level Panel Data (All Permutations)

These additional specifications do not change the bottom line: Aggregated institutionalization is the best predictor of homicide rates. In studying the prison today, we need to aggregate mental hospitalization and prison rates.

Not only that, but there is in all likelihood an endogeneity problem that actually attenuates the relationship that I am finding in my data. The fact is, there is, if anything, simultaneity bias. The relationship between crime and institutionalization is likely to be two-way. Although increased institutionalization is likely to decrease crime rates through incapacitation, increased crime is also likely to increase institutionalization through convictions and sentencing.

As a result, the incapacitation effect of institutionalization on crime is probably diminished and the statistical estimates are likely to understate the effect. The effect of the bias would be to underestimate the effect of aggregated institutionalization on crime. This would only increase the effect of aggregated institutionalization on homicide.

A former student of mine who also studied under Gary Becker, John Pfaff at Fordham, has a terrific new paper on the methodological problems in the prison literature. He extensively reviews the existing “first generation” studies and raises a number of methodological problems — from endogeneity to omitted variable biases and colinearity.

To be sure, like those other studies, the statistical analyses in my study may be missing some control variables. Few if any of the studies that John reviews in his paper go as far back as the 1930s and the fact is, it is practically impossible to find any more reliable data at the state level that go back that far — though I am continuing to search for more.

But the findings are nevertheless remarkable — actually astounding. These regressions cover an extremely lengthy time period (back to 1934) for all fifty state, resulting in a large number of observations (almost 3,300), controlling for economic, criminal justice, youth and demographic variables, and the results remain robust and statistically significant in the most complete models. That is amazing.

One final point. At a conference last week at Yale where I first presented this work, some participants argued that I have to guide the use of this research and address the policy implications.

I resisted the invitation then, but want to emphasize why here. The reason is that the policy implications of this study could lead in any number of directions. Some readers could argue that my findings show there is no reason to have prisons. Instead of prisons, we should have treatment facilities. Others could argue that we should incapacitate more women — remember, there were far more women in mental hospitals, almost 50 percent. Some might argue that we are now at the right level of institutionalization. But this study tells us nothing about the costs and trade-offs to society involved in imprisoning so many people, and whether the harm to the individuals affected by incarceration does not outweigh the harms to the victims of crime.

So I want to emphasize that we all need to proceed with caution. A study finding correlations is not enough to start drawing policy conclusions.