Law in Contemporary Society

The Drug Prisoner’s Dilemma

-- By AlexKonik - 02 Jun 2012

The Prisoner’s Dilemma illustrates both the great potential and likely pitfall of some collective action. Two men are charged with a crime. Each must choose whether to implicate his partner in a bargain with the police or remain steadfast and trust that his partner will do the same. The total punishment is least when both criminals remain silent and force the police to trial. American drug criminals face an analogous choice. Possibly the most effective way of reducing punishment for drug offenses is through coordination of prisoners, by refusing pleas for any punishment more severe than treatment. Like any coordination problem, there are obstacles to success. Prisoner’s Dilemma is deceiving because there is no dilemma; each knows that the other will plea because it always

Almost always?

results in a lesser punishment for the individual.

In other words, this isn't a prisoner's dilemma because the payoff matrices of the players are independent. You are going to assert the possibility of collective action, not convincingly, but in any event the type of collective action difficulty you have at hand isn't a prisoner's dilemma, and your self-editing should have removed this the trope.

Some Are Winning the War On Drugs

Drugs are big business. Illegal suppliers enjoy inflated prices from governmental supply suppression; police departments enjoy inflated budgets to combat the criminalized activity; prison contractors enjoy unprecedented prison populations that are increasingly confined, fed, and otherwise handled by private industry; citizens enjoy gainful employment through the confining business; politicians retain their offices by cleaning up the streets and being tough on crime; and recreational drug users retain their access under a porous enforcement scheme that keeps drugs eminently available. Although recent state moves considering medical marijuana hint at a new direction, drugs continue to inhabit a forbidden place in American society. With public opinion mirroring the view of the parties who profit, a policy of looser heroine punishment in favor of more treatment resources would stand little chance of being proposed or approved. Because of this, the War On Drugs likely will not end with a de jure, legislative measure.

The Courts Are Losing

However there may be a bottleneck in the War On Drugs’ support loop. While a long list of parties benefit from the War, prosecutors and courts bear a substantial cost burden and see few of its benefits. Unlike prisons and police, increased funding to these administrative departments is unattractive, invisible to the public, and tastes more of bureaucracy than justice. The lobbying interest in expanding judicial resources and DA budgets is less focused than the prison lobby and wields less influence than the public’s concern with safety. The War is leaving courts overstrained and underfunded.

Courts are always overstrained and underfunded. Whether the law enforcement effort is against presently illegal drugs, or alcohol, or public drunkenness, or slaves congregating in illegal dramhouses, courts face more work than they can deal with by adjudication.

The Courts Have a Weakness

Facing tough budgets and short time, the adjudication of an ever-expanding volume of drug cases survives on plea bargains. Virtually no one goes to trial and the system has come to rely on this.

Guilty plea rates in New York City were above 90% in the 1760s, and they are at approximately the same level now, as they were in the 1860s or (as far as I know, not having studied them intensively) the 1920s. This has nothing whatever to do with the "war on drugs."

Facing limited resources, prosecutors must prioritize the cases they bring to court, and a trial costs much more than a plea. With the huge volume of the docket that relatively minor drugs crimes occupy, there exists real potential to exacerbate this adjudication bottleneck. Drug criminals, acting in concert, could put serious pressure on current enforcement policies by refusing to accept pleas that carry conditions more severe than treatment. By bringing every question to a jury that faces a stiffer plea than treatment, drug criminals will fundamentally change the equation prosecutors face when deciding who and how to prosecute. Where a preferred legislative solution offers little hope of reform, collective action could succeed in changing policy de facto.

There Is Strength in Numbers

The mass incarceration of drug offenders is possible today only because the victims are coerced into helping the system function. Not only the judge and jailor, but the prisoner and his lawyer grease the cogs of the very machine that imprisons him. In one respect at least, the indicted masses are in a position of power. Given the number of those charged with drug crimes, the tremendous weight burdening the judicial system, and the enormous cost of trial, prosecutors will have little choice as the gears of the machine seize. Furthermore, there is potential to bring even more claims demanding a speedy trial as the docket continues to backlog.

This is nonsense. You should not have taken very long to find the problem with this logic for yourself. Defendants are not out on bail. If they choose to go to trial, the resulting delays in the system will be visited upon them directly in the form of additional incarceration. The sentence increase for each defendant is automatic, and he begins serving it immediately. Later, after conviction, which is all but certain in the vast majority of cases, the sentence will be further extended. As you point out, no lawyer could in good conscience counsel a client to serve a lengthy sentence for the supposed consequence of changing enforcement procedure. More important, no sensible defendant will agree to remain in jail for a long period, in order to remain in jail for a longer period, in order to protest against the war on drugs for your benefit.

Is There A Dilemma?

There are, of course, very large hurdles to achieving collective action. First, even after a critical mass has been reached to sufficiently impact the system, each prisoner would still enjoy a benefit by pleading while the rest cooperate. The terms of pleading will become more favorable as the system groans louder, and each prisoner will face his “dilemma.” Second, although cooperating prisoners can improve their collective fate, early actors are especially prone to severe punishment before a critical mass is reached. Additionally, there are ethical concerns for counsel. Game theory often presents scenarios expecting extra-human rationality, but a lawyer likely cannot advise his client to take actions that will knowingly enhance his sentence. One lawyer may be able to represent a sufficient number of clients to overcome the Prisoner’s Dilemma by acting as a single decision maker. He could promote the group’s collective interest rather than fall prey to individual incentives. With confidence in this lawyer, prisoners may decide to transcend their dilemma.

In other words, he can simultaneously fail in his duty of zealous representation for more clients, thus turning his failure into success for some other people?


In this realm of social policy where economic interests align with public opinion and habit, we can look for a weakness in the system to force change. The sheer size of the War On Drugs creates its own vulnerability; the system cannot sustain itself if the subjugated act in resistance rather than facilitation. With a sufficient number of drug criminals forcing trial, two outcomes are likely: either prosecutorial discretion will de facto institute a policy change favoring treatment over punishment, or a de jure legislative response will be forced.

Your first draft suffered from unrealism. My comments suggested that you should do something about that by taking a closer look at the system of imprisonment as a method of delivering social stability. This draft has moved further from reality. I think the course I recommended last time is still the best route to improvement for you, if you want to write about this subject: try to get the political economy right. Clarity about why we do what we do is achievable. Whether that leads to "solutions" depends on how deep into the system of class and race control in this society you are prepared to dig.

“A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight.” - Thoreau

(I remain interested in working on the paper and topic)

For all interested, I have invited John McWhorter (Columbia) and Richard Willard (former Assistant Attorney General) to debate about the War On Drugs at CLS. They will be speaking at noon on Thursday, October 18 in JG.

I was editing my paper at the same time as Jared, and I inadvertently deleted his comment on my old version:

I like your piece, but just a note: I was having a conversation the other day with this girl who's an attorney for the Orleans Public Defenders office and I asked her if she thought plea deals should be abolished. She responded, "I can't deal with that academic BS. My clients are 17-year-old kids who are facing 40 years in prison for possession. Telling them to take their cases to trial is not an option." Your essay acknowledges this fact but doesn't answer it. How are we supposed to tell 17-year-old kids to take their chances at trial? If we can't, isn't this all just academic BS?

-- JaredMiller? - 27 Jun 2012

My revision since your comment focuses more on the analogy to PD and the point you make; it's a hard game to overcome. I propose the possibility of a single firm taking up enough cases in one location to have an impact, but that would probably break ethical rules. The mafia beats the game by changing payoffs: if you plea with the police, your family dies. There is no real analogous solution here. The 17-year old shouldn't go to trial unless he is confident that enough people will also go to make an impact (and maybe not even then). This is the entire problem. Maybe the public defenders should default to trial for all, not just the 17 year old, and serve all of their clients rather than each of their clients. Thanks for the note - that is the nagging question, but even academic BS serves a purpose.

-- AlexKonik - 27 Jun 2012

Yes, I suppose academic BS does sometimes serve a purpose, though I think in this case your suggestion has about zero chance of ever leading to a positive outcome. I'm curious - I know you're a stout defender of individual liberty, but you also detest the current state of the criminal justice system. How would you feel about an abolishment of plea bargains? You would be taking away the "right" of the defendant and the prosecutor to enter into a freely-formed contract, but civil law countries find this idea of justice as a "contract" to be abhorrent, and almost none of them allow pleas. Your thoughts?

-- JaredMiller - 28 Jun 2012

That's a point I've thought about a little bit - should plea bargains be upheld? When we were studying contracts, I thought there were some ways of invalidating plea bargains. First, the deals are often times coercive. Second, prosecutors threaten litigation. Restatement 2nd 176(1) (and (1)(b) specifically) should allow many to be void because they are the result of improper threats. Then I asked, are they really voluntary? A professor at Duke talks about euvoluntary exchange, or truly voluntary exchange. He lists six requirements for an exchange to be truly voluntary. The interesting ones here are first, coercion. Second, absence of regret. Third, disparity in parties' Best Alternative to A Negotiated Agreement (BATNA). I think the exchange is pretty clearly not euvoluntary, but I don't think there is regret. It does not appear, to me at least, that criminals later regret the plea. They honestly think that is their best deal, probably because it is.

Watching my judge's criminal calendar each Friday has been a really enlightening experience. Sentencing is a rough process, but pleas are especially painful. The judicial process of accepting a plea as a true and honest admission of guilt is meant to filter out pleas that are not in the defendant's best interest. There is a whole series of questions, all followed by "now, do you really understand? You know that you don't have to do this - are you happy with your lawyer?" The State has to read the elements of the crime and state how they are able to prove them beyond reasonable doubt. It is a big ordeal, but I don't think many pleas are refused. The judge is supposed to reject the plea if she does not think the admission is true and honest.

I don't know that there is a "right" to contract in the criminal prosecution context. I think too many of the elements of free association are absent to really call that a right. I think it's a convenience. I think the ideal solution is legislative. I get at this in the paper a bit but call it hopeless (funny, you think my proposal is hopeless. Occupy Prison isn't making big waves in the Big Easy?). Having a system of sane punishments would ease the burden on courts and ease the burden on defendants to plea out of fear.

-- AlexKonik - 28 Jun 2012


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r10 - 22 Jan 2013 - 20:10:09 - IanSullivan
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