In a tweet, criminal defense blogger Norm DeGuerre refers to an article by Michelle Alexander that asks,

What would happen if thousands of people charged with crimes refused to plead out?

Norm then asks

Bringing the system to its knees is in your clients’ best interest. Why aren’t we doing it?

And in a blog post, Mark Bennett gives the standard response that every thoughtful criminal defense lawyer gives when confronted with the “take every case to trial” idea:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

What Mark’s getting at, once you sort through his very specific use of apostrophes — and assuming I’m not totally crazy here — is one of the more interesting game-theoretic aspects of criminal defense: The ethics of legal representation require lawyers to act in each client’s best interest (in the context of legal representation), and they are not allowed to sacrifice the client’s interests to achieve their own goals, including their goal of acting in the interests of other clients.

Thus, when making decisions about how to proceed for a particular client, they are not allowed to take into account the effects of their decisions on any other client of theirs, now or in the future, nor are they allowed to pursue social goals that might benefit other clients of theirs or other lawyers. For example, if a lawyer represented several people accused of committing a crime together, he would theoretically be obligated to make independent decisions about each client — including whether to recommend testifying against his other clients, in which case he might find himself racing to the prosecutor’s office on behalf of two or more clients at the same time!

No lawyer could possibly handle a conflict of interests this severe without at least the appearance of impropriety, so the ethics of legal representation wisely prohibit a lawyer from representing multiple clients in the same case (or whose interests otherwise conflict). Consequently, when several people are accused of committing a crime together, each defendant gets to have a separate lawyer. In practice, this means they would also have to be from separate law firms (except apparently in some public defender’s offices.)

If lawyers somehow cooperated to implement a “take every case to trial” strategy, the justice system would be overburdened, which would mean that prosecutors would probably be willing to offer really amazingly good deals to some defendants in the hope that they will plead out and reduce the trial load. It might be in the best interests of all clients considered as a whole to go to trial, but it could also be in the best interest of any single client to take the really great deal he’s been offered. Since defense lawyers are required to act in the best interests of each client, they would each be obligated to advise their client to take the deal. But when enough clients take the deals, the burden on the justice system is relieved, and the “take every case to trial” strategy collapses back to plea bargaining as usual.

As a consequence, the “take every case to trial” collective strategy would fall apart almost immediately as long as lawyers continued to obey the ethics rules. Consequently, no ethical criminal lawyer would seriously consider attempting this strategy. Which is why, no matter how unpleasant it is in the aggregate, lawyers continue to correctly advise their individual clients to take good plea deals rather than risk being found guilty at trial.

Civil law is more flexible, and several parties to a lawsuit will often consent to representation by the same lawyer in the interest of simplicity and cost savings if they consider themselves to be on the same side — e.g. all sued by the same plaintiff. This is especially likely to be the case if a single party such as a common employer has agreed to pay all costs. Since all the damages are coming out of the same party’s pocket, the lawyer is effectively representing a single client.

In criminal matters, the same is true of the prosecution. There may be victims, but the prosecution is carried out on behalf of the government, so all prosecutors are working for the same client. They are free to make any tradeoffs they want between cases, such as offering deals to some defendants to testify against others, and they can use their discretion to pursue broad policy goals, treating some crimes lightly in order to free up resources to come down hard on others. This flexibility is one of the fundamental differences between prosecution and defense strategies.

I should emphasize that none of this is intended to impugn Norm DeGuerre’s ethical standards for bringing this up. Subsequent twitter exchanges make it clear that he understands the ethical issue, but he nevertheless laments the resulting harm to clients.

However, being after all a lawyer, he does seem to be trying to skirt the ethical issues when he tweets,

And who knows, maybe we would be better at trials if we accepted our clients’ decisions and DID more of them.

Clients often say they want a trial even in cases where it would be a really bad idea. Ultimately, the decision is up to the client, but a good lawyer is supposed to try to talk them out of doing dumb things. However, if the lawyer didn’t try very hard, and the client still went to trial, the client would get what he wants, and going to trial would put pressure on the justice system to not take other cases to trial, so clients as a whole would conceivably benefit. This would benefit clients in general at the expense of specific clients, but if it’s what the specific client wants…maybe it’s ethical?

(I think probably not, because lawyers have a duty to give good advice, but I’m in over my head here. Lawyers are experts at finding tricks in systems of rules, so there might be situations where this is completely ethical.)

Norm also seems to think that a significant number of criminal lawyers are trial averse — due to either fear or laziness — and discourage their clients from going to trial more often than they should, which hurts all criminal defendants by easing the trial load on the prosecutors’ office. (Norm apparently loves going to trial. As he puts it elsewhere, “As a public defender, a client telling me, ‘I didn’t do shit!’ is enough of a reason as any to take his case to trial.”)

In another post, Mark Bennett takes that idea in an interesting direction:

[F]or the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

This neatly skirts around the ethical issues of legal representation. The folks teaching the fake CLE classes are deceiving the lawyers by pretending to teach them skills that don’t work, but if the ultimate result is to bring the plea bargaining system to its knees, then it could produce a net benefit for clients. And the lawyers teaching the classes have no ethical obligations to any individual client, so they are free to seek to maximize the clients’ aggregate welfare. In fact, since bringing down the system will probably end with prosecutors charging fewer people, this will even help people who are never the clients of any lawyer.

This is the logic of many public health initiatives — the flu vaccine kills a few people every year, but the vaccination program saves thousands. It is also the logic of many public interest activist groups, which may engage in activities intended to improve society, even at the expense of some members of society.

(Mark goes on to say that fake CLE classes might not be such a good idea, and that a much better solution would encourage lawyers to be more optimistic about trials by actually teaching them better trial skills.)

Interestingly, I think the article that got Norm DeGuerre excited in the first place may also avoid the ethics issue. The way I read it, Michelle Alexander isn’t encouraging lawyers to crash the system, she’s contemplating the possibility of the clients themselves doing it:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

Great change often involves sacrifice. If thousands of black people in Montgomery could boycott buses for a year, if the boycott leaders could be arrested and jailed, if black people could risk beatings and arrest for sitting at whites-only lunch counters, if slaves could risk their lives escaping, and thousands of people could fight and die in a civil war…then perhaps today enough people would be willing to risk lengthy jail sentences to bring down the system of mass incarceration.

“I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

It would be better to wind down the system of mass incarceration through moral suasion and peaceful change, but if that’s not working, maybe something drastic will be needed.

Finally, while the ethical barriers to a “take every case to trial” strategy depend on the nature of lawyers’ obligations to individual clients, a more fundamental requirement is that there be a trial tax: If going to trial isn’t particularly likely to be worse than taking a plea, then taking cases to trial becomes the dominant strategy. If the justice system treats defendants terribly even if they accept plea bargains, and if the prosecution comes to depend on plea bargains so much for certain types of cases that they lose the organizational capability to convict people, then all hell can break loose.

You know how we worked? We put the state on their heels with our crazy volume of cases.  At the height of our “reign” it was a full nine months from the time somebody demanded trial until their first trial setting.  The state was so overwhelmed that they were only getting subpoenas out a week to ten days before the trial.


When you force the state to actually prepare for trial on every damn arrest the cops make, you’re going to win a lot of cases. Like, almost all of them. They were having to drop cases as quickly as we set them. We’d be crazy to change anything.

Although, as the author of that post eventually discovers, the system has ways of defending itself. It’s one thing to gum up the works, and it’s another thing to cause lasting positive change. It may not be possible to overthrow mass incarceration with cool legal stunts.

I just got an email that has begins with the following text in large centered print (only the last few lines matter for this post):

IFC Films

and The Fortune Academy

Invite you to Join Former Inmates at a Special Halfway House Screening of

The Standford Prison Experiment

Post-Film Q&A will focus on the current state of the American Prison System and the psychological dynamic of power
with Dr. Philip Zimbardo, Billy Crudup, Michael Angarano and director Kyle Patrick Alvarez

Tuesday, July 14th @6PM

The Fortune Academy
630 Riverside Drive (at 140th Street)

Note what’s missing from the location: The city and state. I get something like this in my email every few months — a marketing communication about some event for which the marketer just assumes I know what city they’re in. It would be one thing if this was from some sort of city-specific mailing list, but quite often it’s just some generic marketing outlet. This time it was from Dixon Knox at Brigade Marketing, LLC.

Still, even before Googling it, I’m pretty sure the location is probably in New York City, with Washington D.C. a good second guess, since only people from those two cities are the kinds of arrogant fucktards who assume theirs is the only city that matters.

Google tells me that the Fortune Academy is indeed in New York, NY. (The closest the email comes to telling me this is a block of text on the history of the Fortune Academy that mentions it’s in West Harlem.) If you live around there, this might be an interesting event for you to attend, although general pissedness makes me want to point out that some people are skeptical about the lessons of the Standford Prison Experiment.

This isn’t rocket science: If you’re going to send out event announcements to people who live 800 miles away, at least have the courtesy to tell them what city the event is in.

In the Washington Post, high school English teacher Dana Dusbiber explains why she doesn’t want to teach Shakespeare any more:

I am not supposed to dislike Shakespeare. But I do. And not only do I dislike Shakespeare because of my own personal disinterest in reading stories written in an early form of the English language that I cannot always easily navigate, but also because there is a WORLD of really exciting literature out there that better speaks to the needs of my very ethnically-diverse and wonderfully curious modern-day students.

The language issues alone are enough to convince me, along with the basic problem that Shakespeare’s plays are plays: You’re not supposed to read them, you’re supposed to watch actors perform them. When I was studying Shakespeare in high school, I had to read whole stretches of the plays out loud to myself to get a sense of what was going on. The writing is just not that accessible these days.

Naturally, Dusbiber’s argument brought a response from another high school English teacher, Matthew Truesdale:

Ms. Dusbiber is frustrated by the narrowness of the Western canon and by the expectation that high school students read Shakespeare.  But that expectation is not a new one.  Hamlet, Macbeth, and Romeo and Juliet have been staples of any high school English curriculum for years upon years.

As Dusbiber pointed out, “We’ve always done it that way” is a pretty bad argument.

I prefer Othello, so I teach that.  But I don’t do it because I feel beholden to any set of expectations or standards–I do it because I want my students to have the experience of reading it…that’s it, and that’s all.

Okay…but why so much? I don’t know how much Shakespeare students have to study these days, but back when I went through high school it was ridiculous. That I can remember, we covered Macbeth, King Lear, Romeo and Juliet, Julius Ceasar, and I think Richard II. That’s an awful lot of time and effort just to have “the experience of reading it.”

I often tell my students that one of the main reasons to read a Shakespeare play is simply for the privilege of telling others you’ve read a Shakespeare play. In certain arenas, being able to carry on even a brief conversation about a plot point from King Lear is important and can give one credibility.

I could say the same of Star Wars or Spiderman or Firefly. An appropriate Mal Reynolds quote goes a lot further in my social circles than anything Hamlet said.

I also think it’s a neat little thing to see something in a movie, another book, or even (gasp!) real life, and think, “Hey—this reminds me of that scene in Hamlet when…”

I could say the same of pretty much any long-running television show, from Star Trek to Buffy the Vampire Slayer to Seinfeld, and those are a lot more accessible to modern students than Shakespeare’s plays.

(Speaking of which, is it crazy that Truesdale’s argument reminds me of the Tamarian language’s use of metaphor in the “Darmok” episode of ST:TNG?)

It’s usually at this point that someone brings up the fact that all these popular works include Shakespeare references, and that we’ll appreciate them more if we understand the references. I get that, but better television appreciation is a weak justification for setting a high school curriculum. Besides, nowadays we call these kinds of references “memes” and the kids can look them up online if they want to figure them out.

Eventually, Truesdale gets around to his main argument:

But my complaint Dusbiber’s post is this:  She argues that her students shouldn’t have to read Shakespeare because other literature “better speaks to the needs of my very ethnically-diverse and wonderfully curious modern-day students.”  She then goes on to write that it might be “appropriate to acknowledge him as a chronicler of life as he saw it 450 years ago and leave it at that.”

So what Shakespeare wrote 450 years ago is not applicable to her teaching today? Ethnically diverse students don’t foolishly fall in love and over-dramatize every facet of that experience? Or feel jealousy or rage? Or fall victim to discrimination? Or act desperately out of passion?

The idea that students should read Shakespeare to learn relevant lessons about the human condition is bonkers. Shakespeare may have been a very smart guy, but he lived in a relatively isolated and primitive civilization compared to the students that are supposed to learn from him. Shakespeare wrote his plays before Newton’s physics, Darwin’s evolution, Pasteur’s germ theory of disease, and Adam Smith’s invisible hand. He wrote before the whole freakin’ Age of Enlightenment.

Truesdale anticipates this argument and responds:

To dismiss Shakespeare on the grounds that life 450 years ago has no relation to life today is to dismiss every religious text, every piece of ancient mythology (Greek, African, Native American, etc.), and for that matter, everything that wasn’t written in whatever time defined as “NOW.”

I’m pretty much okay with that. Here in the modern world, we should use modern knowledge. That’s why I think Dusbiber’s alternative to Shakespeare is even worse:

So I ask, why not teach the oral tradition out of Africa, which includes an equally relevant commentary on human behavior? Why not teach translations of early writings or oral storytelling from Latin America or Southeast Asia other parts of the world?

If 400-year-old European texts have little to say to the modern student, stories from pre-literate cultures have even less. Although Dusbiber does have a point, one which Truesdale misses:

And yes– Shakespeare was in fact a white male. But look at the characters of Othello and Emila (among others), and you’ll see a humane, progressive, and even diverse portrayal of the complexities of race and gender.

I don’t recall the portrayal of Othello and Emilia, but somehow I doubt that Shakespeare’s depiction was as illuminating as, say, actual accounts of actual Africans. If we want students to learn about the lives of the Moors, they would probably find more accurate portrayals created by the Moors themselves.

Look, if we want students to learn about Shakespeare — to study his writing, characterization, dialogue, and story construction — then reading Shakespeare is an excellent idea. But to argue that Shakespeare is a great way to learn about the human condition is ludicrous. We already have stories by the thousands that are accessible to modern audiences in the form of novels, films, and television shows. And if we want something deeper than popular entertainment, the human condition is also the subject of actual fields of study about which we have real knowledge — psychology, anthropology, economics, criminology, law, linguistics, literature, neuroscience, and all their subdivisions and branches.

Of course, Shakespeare is a part of that. And I’m not saying that Shakespeare has nothing to teach us. But all of his good ideas have already been incorporated in everybody else’s ideas for hundreds of years. So while I don’t have a problem with teaching some Shakespeare, let’s keep it to a reasonable amount.

On the other hand, it is my firmly held opinion that nobody should ever force students to read Hardy’s Mayor of Casterbridge. Thirty years later, and I’m still bitter.

I’m still playing catch-up on news and blogging from being on vacation for almost two weeks, but I just had to say something about gay marriage, and that something is “Congratulations!”

I was born too late to see the great civil rights movement of the 1960s, but it’s been a privilege to watch the growth of the gay rights movement. To misuse an old saying, progress seems to have come very slowly and then all at once. There’s still plenty of work to be done when it comes to sexual freedom, but this is huge.

Although I’m not a huge fan of Obamacare, I’m happy with the result of the Supreme Court’s decision in King v. Burwell. I’m a little less happy with how the Court reached that decision.

From what I’ve read, it seems the Democrats were in the middle of making some changes to the Affordable Care Act when the Senate approve it, and they were probably planning to fix the details during reconciliation, but they got stuck with that version of the Act when they lost control of the Senate and decided to pass the bill in the House without further cleanup because they didn’t trust the Republicans with the reconciliation rewrite. This is not how you get well-crafted laws.

One my concerns about the ACA from the beginning was that it was so contentious that Congress would screw it up. I thought the Republicans would force the Democrats into all kinds of strange compromises to pass it, and the resulting mess would be worse than what we had before, and worse than what the Democrats wanted.

It seems to have played out a little differently than I expected. The Democrats managed to pass the ACA without many compromises, but now that control of Congress has changed parties, they are afraid to change a word of it because they know the Republicans would insist on other changes as well. We saw the kinds of problems this can cause when ACA regulations led insurance companies to drop child-only health insurance, or when it looked like a change in the handling of Social Security could allow people with relatively high incomes to get free insurance, or when the ACA website was forced to follow the original roll-out schedule even though it wasn’t really ready.

King v. Burwell is another example of something that could have been fixed in an afternoon if the Democrats still controlled congress — or if they had a good working relationship with the Republicans when it comes to minor technical changes in already-passed law.

But that didn’t happen, so it ended up in the courts, and eventually made it to the Supreme Court, which basically had two options: Either they could decide that the law applied exactly as written, meaning that people using the federal exchanges could not get subsidies unless Congress did its job and fixed the law, or the Court could do what they just did, and interpret the law as if it had been written more sensibly, for uncertain values of “more sensibly.”

I’m not sure how common this is — the side that won says it’s all just routine interpretation of statutory language, nothing to see here, and the other side says OMG! Worst. Thing. Ever. — but like many other people, I wonder what other laws the courts could decide to “fix” this way. Can they close loopholes in the tax code? “Examined in it’s full context, the purpose of the tax code is to bring money into the government, and despite the plain language of the statute, it would be counter to that purpose to allow this revenue stream to remain untaxed…”

Or how about regulatory law? “Although the plain language of the statute explicitly permits discharge of this pollutant at higher levels than the EPA regulation allows, we’re going to let the EPA pick its own levels anyway, because that would be more in keeping with the overall goals…”

And then there’s criminal law…what happens when something is a little ambiguous there? “Although the alleged behavior doesn’t meet one of the elements of the definition of the crime, it’s clear from the preamble to the Crime Bill that Congress meant to outlaw this behavior…”

I would hope that the burdens typically required in criminal law would prevent this kind of thing, but our governments are pretty good at sneaking criminal punishments into the civil law through things like civil commitments, immigration proceedings, and asset forfeiture.

I realize I’m over-generalizing from a fairly specific ruling, but this seems like the kind of power that certain judges will love, and it’s not unheard of in law for exceptions to swallow rules. It’s not hard to imagine this becoming “Find some ambiguity, write your own law!”

Having said all that, I think the result of the Supreme Court’s King v. Burwell decision is probably for the best. Obamacare has enough problems without having the Court tear out a large and important chunk of it without careful coordination. That would have injected even more uncertainty into a healthcare system that is already going through a lot of changes. Insurance companies and customers would each have had to figure out how to respond without knowing what the other is going to do. And neither would have had a clue how (or if) a Republican-controlled Congress would try to fix the problem, or what concessions they would insist on from the Obama administration. This kind of uncertainty about the legal regime tends to kill off investment and jobs until it gets straightened out.

So, I’m not sure how I feel about how we got here, I think it’s probably for the best that we’re where we are, and I worry about where this will lead.

Over at National Journal, Ron Fournier thinks a national service program would be a great idea:

I know a better way to fight ISIS. It starts with an idea that should appeal the better angels of both hawks and doves: National service for all 18- to 28-year-olds.

Fournier thinks this will accomplish two goals

Require virtually every young American—the civic-minded millennial generation—to complete a year of service through programs such as Teach for America, AmeriCorps, the Peace Corps, or the U.S. military, and two things will happen:

1. Virtually every American family will become intimately invested in the nation’s biggest challenges, including poverty, education, income inequality, and America’s place in a world afire.

Yes, why allow young people to pursue petty personal goals like getting an education, starting a family, or something totally crass like working for a living, when the government could force them into working on one of Ron Fournier’s favorite projects instead?

And as is usually the case with people who have neat ideas for stuff other people can be “required” to do, Fournier brushes past the details about what will happen to people who refuse to cooperate. What does Fournier propose to do if young people don’t want to give up a year of their lives for this? What if they don’t sign up for the program? What if they never show up for intake? If history is any guide, the plan is probably to send men with guns to snatch them up and lock them in a cage.

“Do this or go to jail!” That’s national service in a nutshell.

2. Military recruiting will rise to meet threats posed by ISIS and other terrorist networks, giving more people skin in a very dangerous game.

The whole point of national defense is that the rest of us can go on about our lives without having skin in any dangerous games.

But apparently Fournier wants us to have a lot of skin in the game, because he clearly regards national service as a political compromise that falls short of what he really wants:

This may seem like a radical plan until you compare it with two alternatives: the status quo, which clearly isn’t working, or a military draft, which might be the boldest and fairest way to wage the long war against Islamic extremists.

Fournier’s argument is the standard liberal argument for conscription:

Also understand that a sustained fight against ISIS would demand a new stream of troops. This country has already asked too much of too few.

The key is asked, not forced. And apparently we have not in fact “asked too much” of the troops because every one of them could refuse, yet they keep answering the call.

Fournier’s appeal for modern slavery includes quotes from the usual suspects, Rangel and McCrystal:

One way to truly level the costs would be to reinstate the military draft and impose a war tax, the cause of liberal New York Democrat Charles Rangel, an 84-year-old Korean War veteran. “When I served, the entire nation shared the sacrifices through the draft and increased taxes, but today, only a fraction of America shoulders the burden,” he said.

First of all, 18-year old males who couldn’t get a deferment is not “the entire nation,” and second, if taxes count as shouldering the burden, then we’re all shouldering the burden now because our taxes pay our soldiers.

Not incidentally, thirty-six thousand Americans soldiers died in Charlie Rangel’s Korean War, and another fifty-eight thousand in the Vietnam war. In the 40+ years since conscription ended, however, fewer than 8000 soldiers have died in our wars. The burden borne by our soldiers is a lot smaller now.

McChrystal is even worse:

Second, if this president or his successor gets serious about ISIS, McChrystal said the effort would require an international coalition and more U.S. troops. “Even if we didn’t need a draft” to drum up the required troops, McChrystal said, “I would argue we need a draft, because it forces national commitment.”

What, democracy isn’t good enough for you? You can’t make a persuasive argument to Congress and get the American people to go along with your plans, so you want to jail anyone who doesn’t want to join your war? Yeah, drafting young men forces national commitment to war like drugging and raping your date forces her to commit to the relationship.

“A problem in America is we’ve let the concept of citizenship diminish into a series of gripes,” McChrystal told me. “One of the ways we can rebuild that sense of ownership, sense of shared ownership, is through experience, and so I believe that every young person deserves—I don’t think this is an onerous thing—deserves the experience of being part of something bigger than themselves.”

There are lots of ways to be part of something bigger than yourself: Work for a company, play a team sport, join a church, start a family. Or join a political movement that aims to keep people like Fournier and McChrystal as far away from the levers of power as possible.

What really blows my mind about Fournier’s position is that he apparently supports raising the minimum wage. For example, he had this to say about an Obama proposal:

He proposed raising the minimum wage from $7.25 an hour to $9 an hour and providing preschool to all 4-year-olds–poll-tested programs that would indisputably help the working poor and rising middle-class.

So…if 18-year-old Johnny graduates from high school and is offered an entry-level job at $8.50 an hour, Ron Fournier thinks it should be against the law, even if Johnny is completely willing to work for that pay. On the other hand, if Johnny refuses to join the Army (which pays about the same), Ron Fournier wants to use threats of violence and incarceration to force Johnny to take that job against his will.

Think about that for a minute. What’s the principle at work here? About all I can come up with is that Ron Fournier hates freedom.

(Hat tip, @Popehat for the pointer to the Fournier piece, and Don Boudreaux for the idea of checking Fournier’s position on the minimum wage.)

This is my third and final post discussing the recently publicized ProstCost study by Le Mouvement du Nid that claims prostitution costs France 1.6 billion euros per year. In Part 1 I pointed out that the study needed to balance the costs of prostitution against the benefits. In Part2 I reviewed the costs described in the study and argued that many of them weren’t relevant to the question of legalization. Now in this part I’m going to go over a few details and discuss what it all means.

If you actually read both previous posts, you may have noticed that I place a lot of weight on the subjective judgements of the participants in the sex trade. If people are voluntarily paying for sex, I accept their decision and assume they are getting something that is, at least in their eyes, worth the money. And more to the point, if people are voluntarily performing sex acts for money, I accept their choice and assume they are receiving enough money to make it worth whatever costs — financial, physical, or psychological — they may incur.

Not everybody sees things this way. Many people feel that transactional sex inherently exploits sex workers, regardless of how the sex workers say they feel about it, and some people feel that prostitution is also harmful to men, because transactional sex is not as emotionally healthy as sex in the context of a loving relationship. They’re welcome to judge the situation that way, but in an economic benefit-cost analysis we have to accept everyone’s decisions equally.

We especially shouldn’t substitute our own judgement. That would be an error for at least three reasons:

First, that’s just not how economics is done. One of the basic assumptions in economic thinking is that people are rational utility maximizers, which is economist-speak for saying people are always trying to improve the quality of their lives, based on their own personal ideas of happiness. Economists assume that when people choose to do something — buy sex, sell sex, whatever — it’s because doing that thing will provide the greatest benefit in their lives at the lowest cost possible, according to their own evaluation of the benefits and costs.

Strictly speaking, that’s not always true. People make mistakes all the time, and economists are developing more complex models to refine their predictions accordingly. Nevertheless, there’s a difference between observing that people deviate from the rational utility maximizer model and proving that those deviations are large enough, imbalanced enough, and consistent enough to justify discarding people’s revealed preferences. In practice, the assumption that people will rationally pursue their own best interests is very useful, and if we discard it, we’re straying far from well-understood economics.

The second reason for not overriding people’s judgement with our own is that it’s not our life. The people making the decisions probably know a lot more about their lives than you or I do, and they have a much stronger incentive to make the right decision, since they will receive the benefits and suffer the costs.

Unlike most of us, sex workers don’t just read about prostitution, they don’t just study it. They live it. They work strange hours and see oddball clients, they have sex with strange men and do the emotional labor of pretending to enjoy it. They take all the risks everyone worries about, from getting ripped off to getting killed. They take the money, and they risk getting arrested and being labeled a criminal. They know a great deal about being a sex worker, and for us to think we can make better decisions about their lives is the height of arrogance.

That’s not to say that people don’t make mistakes about their own lives, since they certainly do. I think we can all speak from experience about that. And sometimes we can see other people are making a mistake even when they can’t. But to dismiss a whole group’s decisions about their own lives is to assume we are consistently smarter than all of them. That’s an amazing claim that should only be accepted under exceptional circumstances.

Sometimes, granted, circumstances are exceptional. Doctors, for example, often have a really good understanding of medical issues, and in the course of a medical career they must encounter thousands of examples of patients making health decisions that are just flat-out wrong. And yet…one of the core principles of medical ethics is to never do anything without a patient’s consent. If a patient is refusing treatment, doctors can have the results of thousands of dollars in lab tests, decades of medical history, and billions of dollars worth of peer-reviewed reproducible research saying that the patient is wrong, but medical ethics do not permit the doctor to force the treatment on the patient. But somehow the folks at Le Mouvement du Nid think their far less rigorous knowledge entitles them to make decisions for tens of thousands of sex workers they’ve never even met.

The third reason for not substituting our own judgement for the judgements of the people we’re studying is that it would be cheating.

Let’s say you hate the taste of brussels sprouts so much that you’d like the USDA to ban them for human consumption, and to support your effort you commission a survey to prove that the taste of brussels sprouts is so awful that no one would eat them, and therefore that farming them is a waste of agricultural resources.

When you get the survey results back, however, most of the participants say that brussels sprouts taste like week-old armpit, but a significant fraction of the population — a fraction large enough to account for all brussels sprout consumption in America — says they find brussels sprouts to be a tasty alternative to more traditional vegetables.

Obviously, no matter how wrong you think those people are about the taste of brussels sprouts (and they are very, very wrong), it would be unethical for you to simply discard their responses and present the remaining data in your study as if it were unbiased. If you discard the opinions of people who disagree with you, then of course the study will support your opinion.

That’s what you do if you try to perform an economic study but you substitute your own preferences for the preferences of the subjects of your study. That’s what the ProstCost study does when it counts the costs of prostitution but it ignores the benefits — benefits that must be present to explain why tens of thousands of people engage in sex work and hundreds of thousands more hire them.

Getting back to the study itself, I explained earlier that we know prostitutes produce their services for a cost of at most € 3.2 billion and consumers receive at least € 3.2 billion in benefits — together these are the producer and consumer surpluses from trade. The benefits almost have to be greater than the costs, but is the resulting gain greater than the € 202 million external cost that I calculated in the previous post?

I have no way to know without more economic data. However, € 202 million is only about 6.3% of the prostitution trade, so the surpluses wouldn’t have to be very big to overcome it.

We can, perhaps, make some headway by looking at the taxes. Even if the people making money from prostitution are able to evade € 853 million in income taxes by hiding their earnings as the study indicates, there are lots of other taxes which they can’t avoid.

They have to live somewhere, so they can’t avoid paying residence and land taxes, and everything they buy is subject to value-added taxes (similar to sales taxes), and there are also some industrial taxes that are passed along to consumers. The sex workers may not report their income, but they still have to spend money, and some of that money eventually gets paid as taxes.

We can make a rough estimate of how much sex workers still still pay in taxes because we know that the tax burden in France is about 45%, which means that the expected tax burden on € 3.2 billion in prostitution earnings is about € 1440 million. Even if they manage to evade € 853 million of it, that still leaves an expected € 587 million in paid taxes, or about 2.9 times the € 202 million external social cost.

So based on the data in the study, plus a few other statistics and some economic thinking, prostitution provides a net benefit to France.

At the beginning of this post, I speculated that one of the reasons Le Mouvement du Nid conducted this study was that they objected to the recent decision to include prostitution in European Union GDP calculations. However, as far as I can tell, most of the costs discussed in the ProstCost study have nothing to do with GDP.

Taking money from taxpayers and giving it to poor people may be the compassionate thing to do, but it’s not a productive activity. Therefore these transfer payments do not go into the GDP calculation. So if I’m right that “Cost implications direct social” refers to anti-poverty welfare transfers, then these items have no effect on GDP and neither do taxes or, more importantly for our purposes, evasion of taxes.

“Direct costs Medical (Cost of health)” is healthcare workers producing healthcare, so it actually adds € 85 million to French GDP. And “Direct costs non-medical” is the cost of government employees doing something presumably productive, so that’s another € 35 million, for a total of about € 120 million contributed to GDP.

(If it strikes you as odd that poor health can lead to expenditures that show up as increased GDP, you’re not alone. It’s one of the reasons why economists warn that GDP is only a very rough proxy for national well-being. Neither pro- nor anti-sex work advocates should really be arguing GDP. It’s the wrong economic measure for this kind of thing.)

“Human costs for people Prostitutes” — rape and murder — are not traded in the marketplace, so they are left out of GDP calculations, as are “Homicides/Suicides.”

“Losses production due to incarcerations” is a direct hit on GDP that reduces it by € 19 million, but that loss is due to criminalization of prostitution, not to prostitution itself, so the effect on GDP is still around € 120 million.

I don’t know what goes into “Placing children.” If we treat that € 59 million as the cost of caring for children, that’s a productive activity that goes into GDP. If it’s a transfer payment, then it doesn’t. Let’s assume the latter, and keep our total at around € 120 million.

The remaining costs amount to € 1547 million, but they don’t affect GDP.

The net effect so far is that the “costs” of prostitution seems to be producing a total of € 120 million in additional GDP because of spending on healthcare and government services.

To be honest, that could be completely illusory. We don’t know what would happen to all those healthcare and government workers if they weren’t getting paid to provide services to sex workers. Maybe they would would be unemployed, in which case the € 120 million is a real gain to GDP, or maybe they would just be doing some other work, in which case they’d still get about € 120 million, implying that prostitution contributed nothing. The real answer is probably somewhere in the middle.

(As I said, counting medical expenditures for health problems probably isn’t the best idea for measuring social welfare — if doctors didn’t have to take care of sick sex workers, French society could presumably spend the money some other way. This is why I counted them as costs in my analysis in part 2.)

Of course, even if that GDP gain from healthcare and government spending is illusory, there’s another huge GDP gain that is not: The € 3.2 billion that prostitution adds directly to the GDP. Unless you’re able to make a convincing argument that prostitution — unlike all other work — doesn’t belong in the GDP, that’s a hard number to beat.

(And remember, you can’t argue that the € 3.2 billion should be excluded from GDP because prostitution is a crime and then argue against decriminalization of prostitution because it doesn’t help GDP. That’s cheating again.)

The study concludes with an odd note:

“It is important to note that while prostitution customers spent their money in any other activity, the French company would save each year several hundred million euros expenses related to the consequences of prostitution and parallel increase its tax revenues of at least EUR 853 million.”

I’m having trouble getting my head around what that even means. Counterfactual propositions are always tricky to think about, but that one is really broad and open ended. I’m not even going to attempt a full analysis. But I’ve got to ask a few questions.

What if prostitution consumers quit hiring sex workers and decided instead to spend their € 3.2 billion on high-end iPads and Ford F-150 pickup trucks? Those are imported, so France would still lose € 853 million in taxes. And without that € 3.2 billion flowing to sex workers, they would be unemployed, which would certainly cause social welfare spending to skyrocket. Even if they did find jobs, they would probably pay less or have other less desirable features. After all, if there were easily available jobs that were better than sex work, why would there be sex workers?

That last point is actually pretty important. Sex workers do sex work for the same reason all of us do our jobs: Because it is the best job they can find that meets their requirements. If their customers went away, it would reduce the quality of their lives. We know this because if having no customers raised the quality of their lives, they could simply quit the business.

However, the real problem with the quoted observation is that even if we assume that everything I’ve written in these three posts is dead wrong, and even if we accept the premise that if prostitution customers spent their money on any other activity, the French economy really would save € 1.6 billion, it’s still just a fantasy.

Sure, if hundreds of thousands of French men all voluntarily decided to give up a bit of their personal happiness out of an altruistic desire to improve the welfare of others, that would make other French people’s lives a little better. But that’s never going to happen.

Or to put it another way, why is Le Mouvement du Nid thinking so small? Why limit their fantasies to having Frenchmen give up only prostitution? As long as they’re looking for imaginary solutions, why not imagine how much better France would be if everyone also gave up burglaries, car thefts, robberies, rapes, murders, scams, riots, and public corruption? I’m sure that would save a lot of money too.

In the real world, if Le Mouvement du Nid wants to get French men to give up hiring sex workers, they’re going to have to do it with some kind of law enforcement “end demand” policy that will force them to stop. That might be possible, but the effort would be an enormously expensive War On Prostitution, for which we haven’t even begun to estimate the cost.

In the end, what I’ve seen so far of this study doesn’t prove much of anything. I may change my mind if I ever see a better translation or more data from the actual study, but until then I think this whole thing is better viewed as a publicity stunt.

This is my second post discussing the recently publicized ProstCost study by Le Mouvement du Nid which claims prostitution costs France 1.6 billion euros per year. In Part 1 I discussed the key missing figure from the study: The economic benefits of prostitution. I also listed some important caveats which apply to this post as well.

Now I’d like to discuss the costs described in the study. I should warn you, this will be getting into the weeds.

Before that, however, I want to discuss a cost that the study never directly addresses: The production cost of prostitution, as paid by the sex workers themselves. This includes not just financial out-of-pocket costs, but also the time value of the sex worker’s labor and any costs in the sex worker’s quality of life. That cost would be difficult to determine directly, but we can once again use the economist’s trick to set a bound.

Going back to that $50 steak dinner from the previous post, how much do you think it costs the restaurant to prepare and serve it? Well, just as you wouldn’t buy it unless it was worth more than $50 to you, the restaurant wouldn’t sell it for $50 unless it cost less than that to make. $50 was the lower bound of its value to you, but it’s the upper bound of its cost to the restaurant.

Except in the degenerate case where both you and the restaurant value the steak at exactly $50, the steak is being transferred from an owner who puts a value of less than $50 on it to an owner who puts a value of more than $50 on it. For example, it might cost the restaurant $45 to prepare the steak, and you might be willing to pay $60 to eat it. When you buy it for $50, the restaurant gets $50 for its $45 steak — a $5 gain — and you get a $60 steak for $50 — a $10 gain. That’s a combined net gain of $15. You have made the world $15 richer. This is the economic benefit of trade.

And just as we estimated the benefits of prostitution to be at least € 3.2 billion per year, we can estimate that the production costs must be at most € 3.2 billion per year. The difference between the production cost and the value to the consumer is the economic social gain from prostitution, at least for those participating in it.

That’s not quite the whole story. Even though clients gain more than sex workers lose, it’s possible there are third parties who experience losses that outweigh the gain. That’s the implication of the ProstCost study, and we ought to take a closer look at it.

The ProstCost study breaks the costs out into six main categories. The first one I want to look at is “Human costs for people Prostitutes.” (Because I’m using Google Translate to get the category names, I’m going to quote them as a reminder that the translation is shaky.) This is where the study tries to estimate equivalent financial amounts for non-financial costs. Here’s the list:

Item Cost (€ million)
Rapes and attempts rape 19
Other violence Physical suffered 89
Excess mortality linked to prostitution 132
Other violence psychological 71

Some commentators are concerned that the study assigns financial costs to very non-financial harms like rape and murder. I understand why that creeps people out, but it’s really the only way to answer or even ask these kinds of questions: You have to have some way to compare costs and benefits, so you have to translate them to a common measurement. People have always been willing to risk their well-being for money or the things that money can buy, and we have some idea how they make those tradeoffs, so we have some reasonable methods of assigning financial costs to these kinds of risks.

A more troublesome issue is that this category is counting crimes against sex workers as a cost of prostitution. We see this attitude with some other crimes, where victims are punished for making themselves vulnerable — from cops ticketing people who leave their cars unlocked to efforts to shut down bars where fights break out.

Furthermore, it’s arguable that much of this crime against sex workers is exacerbated by the criminalization of prostitution and related activities. It makes sex workers reluctant to report even serious crimes to police — because police might decide to arrest them — and it discourages business practices that would make them safer, such as keeping records, installing security cameras, and hiring people to protect them.

The fundamental problem with the study’s approach, however, is that including these costs makes no sense because these costs are borne entirely by the sex workers themselves under the € 3.2 billion cost cap I calculated above. Sex workers are smart enough to take these costs into account when deciding to do that kind of work, and therefore the ones doing that kind of work are those who have accepted the costs in return for the benefits.

A similar cost category in the ProstCost study is “Direct costs Medical (Cost of health),” which is estimated at € 85 million per year. The study says these estimates are for costs “specifically related to prostitution,” and I’m going to assume that € 85 million is (as it should be) only the excess cost of medical care for sex workers over and above that of other people in the same demographic.

If this was in the United States, I would lump medical costs into the previous category because they would be borne directly by the sex workers themselves. Because this is France, however, some of those costs are covered by national health insurance, which makes them a cost born by the French public.

Another similar category is € 58 million for “Cost implications direct social” which is, from the looks of the individual items, a collection of social welfare programs. Assuming again that these numbers are estimates of the excess costs — the costs of sex workers compared to the population average costs — then they are legitimate costs borne by the French public.

What’s less clear about these costs is which way the causality is flowing: It’s not clear that prostitution causes poverty. Certainly some desperately poor people have turned to prostitution as a way to survive, but in that case it’s the poverty that’s causing the prostitution. In fact, the prostitution income is probably reducing social welfare spending.

More generally, it seems likely that poverty and prostitution have co-factors — conditions that make it hard to hold a well-paying regular job, but which are less of a problem for people doing sex work — lack of education, mild mental disorders, substance abuse, medical problems, single parenthood. If French sex workers are disproportionately likely to face such difficulties, that could create a correlation that the study would detect.

Another category is “Direct non-medical costs,” which consists of “Administration penitentiary,” “Activities police and gendarmerie,” and “Activities criminal Justice,” which are estimated to cost € 35 million per year. In other words, part of the cost of prostitution, according to the study, is the cost of enforcing the laws against prostitution (or related activities like solicitation and pimping).

That’s not quite as crazy as it sounds. When counting the social cost of a crime, it is standard practice to count the cost of preventing the crime. The social cost of burglary includes not only costs imposed by burglars on their victims, but also the costs paid by society to prevent burglary — door locks, alarm systems, security guards, police detectives, and so on. It’s not just the cost of burglary, but the cost of living in a society that has burglars in it.

The catch is that this kind of analysis assumes the activity in question is a crime, so it’s not applicable when you’re trying to decide whether something should be a crime. That would be assuming the conclusion. And if you never make prostitution a crime, you never have to pay the cost of punishing people for it.

One of the more baffling categories is “Cost of traffic money money prostitution” (honestly, that’s how Google translates it) which appears to be tax evasion, broken down like this:

Item Cost (€ million)
Tax evasion: Direct taxes 212.00
Tax evasion: levies Compulsory 641.00

I know I said I wouldn’t get in to data quality issues, but reading the translation, I can’t for the life of me figure out how they estimated this, even assuming they have a good estimate of the number of prostitutes or how much money they make.

I’m also confused by the fact that the study authors divide the estimated spending on prostitution, € 3.2 billion, by the estimate of 37,000 working prostitutes to get an average annual earning per prostitute of € 85,700. As near as I can tell, that is more than double the median household income in France, which made me question the study’s figures for the burden of prostitution on social welfare programs.

Looking at some diagrams in the original summary, I see they are saying that of the € 3.2 billion in gross prostitution earnings, about € 1.4 billion of it goes to “pimps.” I assume that when they say “pimps,” they are talking about the sex workers’ business operating expenses, which may include a payment to what we usually think of as a pimp, but may also include things like agency fees, advertising, drivers, hotel bills, and apartment rentals. This would still leave € 1.8 billion for the prostitutes, meaning the the average prostitute’s take-home pay is roughly the same as the median household income, which still conflicts with public aid costs. (I suppose there could be distributional issues that make it all make sense.)

The French tax burden is really high, so it’s plausible tax evasion could amount to more than 25% of income. Sex workers probably earn most of their money in cash, so hiding the income wouldn’t be difficult. In fact, they’d probably have the opposite problem — figuring out how to report the income and pay taxes so they can put the money in a bank and spend it in ways that would be visible to tax authorities.

Of course, if sex workers can work legally, they’d probably have to behave more like regular businesses, which would make it harder to evade taxes. Besides, it’s hard to blame them for not paying taxes when honest reporting would likely get them arrested for a victimless crime. Tax evasion is both enabled and encouraged by the criminalization of prostitution.

In any case, just as it doesn’t make sense to hold sex workers responsible for the costs of law enforcement, it doesn’t make sense to hold sex workers responsible for the effects of France’s tax policy.

This section of the summary also sees fit to mention that 45% of the money earned by prostitution is sent out of the country. They don’t say how the money is sent (or how they could possibly know about it), but I think we’re supposed to imagine some sort of shadowy international trafficking ring. I’m guessing that in reality it’s mostly remittances — immigrants sending money to family back home.

I don’t know why the study authors consider this a problem. It may be that money earned by (for example) Romanian sex workers in France is flowing out of France to their families in Romania, but in return French men get to have sex with Romanian sex workers. This is called international trade, and it’s usually considered a good thing.

The most confusing section is titled “Costs aftermath indirect social,” which is broken out this way:

Item Cost (€ million)
Placing children 59.00
Losses production due to incarcerations 19.00
Homicides/Suicides 228.00

I have no idea what “Placing children” means here, and the Google translation isn’t clear, so just for the sake of argument, I’m going to assume it’s a real social cost of prostitution.

As for “Homicides/Suicides,” I’ll summarize what I said above: To the extent that these are due to prostitution, they are risks assumed voluntarily by the prostitutes. Furthermore, the correlation between suicide and prostitution is not proven to be caused by prostitution; there could be confounding co-factors that cause both. Finally, at least part of the homicide rate is probably due to sex workers’ adversarial relationship with the police and the resulting loss of personal security due to the need to work in secret.

Finally, I’m saving the most infuriating cost for last: “Losses production due to incarcerations.” In other words, we’ve thrown people involved in prostitution in jail, and now we’re going to blame them because they aren’t holding down a job. By any sane accounting, this is a cost of criminalization.

So what is the cost of prostitution in France? Here’s how the costs in the study sort out according to the categories I’ve been using:

Category Cost (€ million)
Cost of Criminalization 54
Cost Absorbed by Prostitutes 539
Public Cost: Health 85
Public Cost: Social Services Cost 117
Tax Evasion 853

Of these, only the public costs go into the benefit-cost calculation for prostitution, which leaves us with external costs totaling € 202 million.

In the third and final part, I’ll add a few more details and try sum it all up.

Update: Part 3 is up.

Recently, sex work activists on Twitter took notice of a news story about the recently publicized ProstCost study by Le Mouvement du Nid that claims prostitution costs France 1.6 billion euros per year. Since the internet is full of studies of “the cost of X” that are little more than some organization’s talking points. I thought it might be worthwhile to take a closer look at this study.

Before getting into my thoughts, I have a few important caveats:

  1. I’m working from a summary of the study, not the actual study, which I believe is still unpublished. It’s often the case that formal studies are much more rigorous, nuanced, and cautious than the summaries and press materials that are prepared from them. So when I talk about “the study,” my comments really only apply to the summary of the study, taken as a standalone expression of its ideas.
  2. The study summary is in French, which I can’t speak or read, so everything I’m writing here is based on a Google translation, which means there’s a fair chance that something got really mangled. I’m trying to stick with parts of the study that don’t seem to depend on subtle meaning, but there’s a pretty good chance I got something wrong.
  3. I’m going to leave discussion of the quality of the data in the study to people like Maggie McNeill who know a lot more about the available data than I do. For my purposes, I’m not going to dispute the numbers in the ProstCost study. That doesn’t mean they are correct, however, because how would I know?
  4. Prostitution is technically legal in France, but various related activities such as soliciting and pimping are not. Law enforcement definitions in this area are often real stretchy (e.g. two sex workers operating together may be arrested for pimping each other) so in practice prostitution is still pretty much a crime. Consequently, I’m going to assume for purposes of the study that basically all arrests are of prostitutes, even if that’s not the charge against them.

With those warnings in mind…

Some have speculated that the ProstCost study is intended to discourage further decriminalization and even support re-criminalization of prostitution. If so, I think it fails to make its case.

The study is also a response to the European Union’s decision to start including prostitution in the the national accounting figures for Gross Domestic Product:

In 2014, the European Commission proposed that Member States the European Union to increase their “national wealth” including the turnover of prostitution in the calculation of their GDP. In France, INSEE has refused to bow to European demand explaining to rightly, that prostitution is akin least a “provision of voluntary services” as an exploitation of the people more precarious.

ProstCost, unpublished study by the Mouvement du Nid – France and Psytel takes from behind the myth of creative prostitution increasing growth and provides an estimate of the dual economic burden and the social system of prostitution poses to his victims and the whole society.

Mouvement du Nid appears to believe that counting prostitution in the GDP figures will normalize it and make it politically more difficult to fight, and this study is apparently intended to show that prostitution is in fact a burden on the economy. I don’t believe the study makes this case either.

When analyzing a policy choice such as whether or not prostitution should be legal, the most useful approach is probably a benefit-cost analysis of the effect on social welfare. Which leads me to the most important question you can ask about a study purporting to show the cost of something: Does the study include benefits as well? Because if you count only the costs, everything seems like a bad idea. A fair evaluation requires examining the good and the bad.

That doesn’t mean studies that only account for costs are necessarily faulty or deceptive. It can make sense to study only the costs as long as everyone understands that a complete analysis will require study of the benefits as well. For example, we may know the cost of producing a new drug from a pharmaceutical corporation’s recorded expenditures, but we might not have a very realistic idea of its effectiveness until people have been taking it for a few years.

Studies also don’t discuss benefits when the benefits are already well understood. Probably the most common example is when there are no benefits, such as with diseases and natural disasters. Hurricanes and pandemics are deadweight losses which have no upside, so studies don’t bother to account for any benefits.

Unfortunately, some studies assume away all benefits in situations where it’s misleading at best and deceptive at worst. For example, I’ve been meaning to blog about this study, which I believe is the source of several reports on the cost of alcohol consumption. The problem is that the study doesn’t even attempt to account for the benefits of alcohol consumption — benefits which are obvious to anyone who’s had a nice wine with dinner or partied the night away with friends.

That doesn’t mean the study is crap. The public health entities that fund these studies aren’t interested in parties, so they don’t need that in the study. What it does mean, however, is that you can’t use studies like this to answer questions about whether it’s a good policy to allow people to drink alcohol. The study implicitly assumes that alcohol consumption is only bad.

The ProstCost study similarly fails to discuss the benefits of prostitution, so it isn’t suitable for answering the question of whether prostitution should be a crime. By neglecting the benefits, it is implicitly assuming that prostitution is always bad.

We can try to fix that by coming up with an estimate of the social benefits of prostitution in France. You might think this would be a massive research project involving lots of fuzzy estimates of intangible benefits, but economists have developed a neat trick that works in situations like this, and it turns out that the ProstCost study already has all the information we need.

The key insight is that when you buy something, you don’t generally pay more than it’s worth to you. Oh, you might complain that the price is too high, but you don’t really mean it, in the sense that you still go ahead and buy it. You might think that $50 steak dinner in the hotel restaurant is overpriced, but if you still buy it, it’s pretty clear that you must have thought, in some sense, that it was worth $50 to you.

Or more precisely, you must have thought it was worth at least $50 to you. You might think it was the best steak dinner you ever had — worth it at twice the price — or you might only just barely have been willing to part with $50 for the steak dinner rather than have something else. In either case we can sure you didn’t think it was worth less than $50, because $50 is what you paid. We can therefore safely assume that its value to you has a lower bound of $50.

The ProstCost study estimates that France’s 37,000 prostitutes earn about 3.2 billion euros per year. That’s the same as saying that prostitution clients are spending about € 3.2 billion per year. By the same logic we used with your steak dinner, we can deduce that prostitution clients are receiving benefits of at least € 3.2 billion per year.

Basically, we’re done right there. Even if we accept for the sake of argument that the ProstCost study’s estimate that prostitution costs € 1.6 billion per year, we can subtract that amount from the € 3.2 billion benefit to see that prostitution in France still produces a net benefit of € 1.6 billion per year.

That’s not the impression you’d get from press reports with headlines like “Prostitution costs France ‘€1.6 billion each year'” is it. Perhaps a better headline would be “Prostitution sector contributes €1.6 billion to French economy.”

In my next post on this topic, I’ll discuss the costs of prostitution, as identified by the study and as estimated by me.

Update: Part 2 is up.

I could never really understand why people who bought Milli Vanilli‘s music were so upset when it was revealed that those two guys in Milli Vanilli didn’t really sing any of those Milli Vanilli songs. Purchasers still got the music they heard on the radio. The actual recording artists were still singing the right songs the right way.

I’m reminded of that by the revelations that Rachel Dolezal, head of the Spokane NAACP chapter, may actually not be black.

The mother of Rachel Dolezal — an NAACP leader in Spokane, Washington, who identifies as African-American, though her parents claim she is white — said Friday that her daughter “has not explained to us why she is doing what she’s doing and being dishonest and deceptive with her identity.

I haven’t seen a lot of details on this story, so I honestly don’t know what exactly she’s been doing. Has she been following the standard psychopath playbook of telling whatever lies will get her what she wants? If so, then I hope she goes down in flames.

On the other hand, if she just grew up with a lot of black people, including family members, and always feel like she identified with the black community more than the surrounding white culture, it’s hard to find fault with her for showing solidarity with those she considers to be her people.

The NAACP statement on Rachel Dolezal is interesting:

One’s racial identity is not a qualifying criteria or disqualifying standard for NAACP leadership. The NAACP Alaska-Oregon-Washington State Conference stands behind Ms. Dolezal’s advocacy record.

I guess even though she’s white, she’s still singing the right song.

Update: Okay, I may have posted too soon… It’s starting to look like she went beyond just claiming a black cultural identity. Stories are circulating that she posted a picture of herself with a black man who she claimed was her father, even though he’s not.

She also claims to have been the victim of considerable racially-themed harassment by unidentified perpetrators. These could be legitimate threats, but they include written threats that did not come through the mail and break-ins at her home, all of which could easily be faked to try to get people to support her.

Then there’s her quote that “We’re all from the African continent.” This is technically true, but it’s not what we mean in this country when we say someone is African-American. That sounds like the sort of careful parsing you’d get from a practiced liar.

This is starting to sound less like confusion over identity and more like deception, possibly for personal reasons.

I recently bought some new camera gear, and now I’m thinking of selling a couple of my old lenses. One of them is a Sigma fish-eye lens (10-20mm f4/5.6 for Nikon DX) that I use for extreme wide-angle photos. It’s a trick lens, and while some of the images are interesting, I never really used it as much as I hoped to.

The other lens, however, is the original Nikon DX super-zoom (AF-S 18-200mm f3.5/5.6 VR). It’s not a high-end pro lens, especially in low light, but it has a very versatile focal range. Under most common conditions it replaces a whole bagful of interchangeable lenses. I used it all the time.

It’s amazing how we can become attached to things. I’m not talking about the kind of attachment that leads to gaudy levels of conspicuous consumption. I mean the way we become attached to the useful objects in our lives.

Probably the most common example we are likely to share is our first car. Mine was a Plymouth Volaré, a car that so spectacularly failed to live up to expectations that its production caused the downfall of Chrysler Corporation in the 1970s and ultimately helped destroy the reputation of the entire American auto industry. It was not a fun car to drive or maintain, but it was my car. It gave me freedom and control that I had never had before. I never loved it, but I have fond memories of the places I went and the things that I did and the people who road with me. I felt bad about getting rid of that car.

I felt the same way about the first computer I ever learned to use, a VAX 11/780 at college. I eventually got the job of running it for the school, and it became my job to sell it when we upgraded to newer computers. I remember when it was waiting to ship out — 4 or 5 refrigerator-sized racks of electronics standing in the hallway — and I remember feeling like a piece of my life was going with it.

I’m feeling that way now about that 18-200 street zoom. I own a few other lenses, but I don’t use them nearly as much as I used that lens. Almost every photo I shot with my D200 was through that lens — maybe 35,000 images altogether. I carried that lens everywhere, and I used it to do cool things. It’s not a feeling I’ll ever quite experience again.

It seems I’ve been taking a lot of shots lately at muddled thinking on the left, so I thought I’d try to balance things out. I often grab my craziest liberal nonsense from Addicting Info, and now I needed to find a similarly addled site for right-wing content. Fortunately, there’s the Conservative Tribune.

The site is mostly clickbait nonsense, but this article displays an attitude I’ve encountered before — it’s a why-aren’t-people-outraged piece — and I wanted to try to come up with a response.

Our nation’s police officers are under attack. Between last week and this week, three police officers have been gunned down in cold blood. Yet there are no protests. No buildings are being looted. The president isn’t saying that one of those officers could be his son.

What exactly would people be protesting? More to the point, who would they be addressing their protests to?

Officer Gregg Benner, a Rio Rancho, N.M., police officer, was shot on Monday night. The 49-year-old Air Force veteran had been with the police department almost four years. He was survived by his wife and five adult children. His killer has been brought to justice.

The protests in Ferguson and Baltimore broke out because people felt they weren’t getting the justice they deserved. What exactly should people be protesting here? The shooter, Andrew Romero, has been arrested, he’s been charged with murder, and he’s is being held on a $5 million bond. The FBI is also taking an interest. The system is working. There’s no one to protest against.

Instead, Rio Rancho residents have been showing support for the Benner’s family and the police department. The memorial at the site where he was shot is covered in flowers and flags.

Officer Kerrie Orozco was murdered in Omaha, Neb., on Wednesday by Marcus D. Wheeler, a 26 year-old black male. Wheeler was killed during the shootout with Orozco.

Again, why should there be protests? The person who murdered Officer Orozco is dead. You can’t get much more justice than that. What would protesters be protesting for?

Rather than protest, people gathered to mourn the loss. Hundreds of people attended Kerrie Orozco’s funeral, and thousands lined the streets along the route.

And on Sunday, Officer James Bennett Jr. was shot and killed in his patrol car in New Orleans. A manhunt is underway for his killer (H/T The Gateway Pundit).

Three unnecessary deaths all within a week of one another. Three lives cut short, yet no one from our government seems to care. This is disgusting.

One killer arrested, one shot dead by police, and one the subject of a massive police manhunt. I’d say people from the government care rather a lot. The criminal justice system comes down very hard on cop killers. You don’t need fiery speeches from politicians and protesters when the system is working.

All across the country, police officers are under attack by the very criminals they are trying to protect us from. Killing a cop used to be a line that almost no one would cross. Now, it seems like every other day we read about another officer down.

Actually, the number of police officer killings has been fairly steady lately, and it’s down quite a bit since the high point of police killings in the 1970’s.

President Barack Obama, Al Sharpton, and the rest of their race-baiting ilk are directly responsible for these atrocities. Through their efforts to criminalize the police force, they have created an open season on police officers.

It would be nice to offer some evidence for a claim like that. The three examples in this article certainly don’t appear to have been the result of a generalized anti-police sentiment. We don’t yet know why Officer Bennett was shot, but both of the other officers were shot by people with long criminal records. Wheeler shot at cops trying to arrest him, and Romero was trying to avoid arrest.

Police officers are out there every day trying to keep us safe. They aren’t perfect. None of us are. However, they represent law and order in this country, and when you attack them, you are attacking everything this country is built upon.

Uhm…actually…this country was kinda founded on fighting against British law and order…so maybe that’s not the best argument…

Yet there have been no mass protests. There have been no riots demanding justice for these slain officers.

You know what kind of people have protests and riots? People who feel they have no other way of being heard, no other way of attracting attention to their needs, no other way of getting justice.

The police don’t have that problem. One of the perpetrators has already been arrested, and another is dead. The third is still at large, but it’s not because nobody cares about the officer he killed. Nobody’s protesting over murdered police officers because the police don’t need protests to get justice.

Someone named David M. left a moving comment on Scott Greenfield’s Memorial Day post:

My grandfather was drafted out of the Hitler Youth into the Luftwaffe in ’43, when he was 16. In early ’45, he was assigned to man an AA gun, shooting at American planes. When the Americans crossed the Rhine in March and it was clear that the war was lost, he deserted along with a few of his high school classmates. They scrounged up a few supplies and split up, each man trying to reach his family. For my grandpa, that meant sneaking through the Ruhr pocket.

About a week later, he was caught by a lone GI. It was dusk, and my grandpa, who’d been sheltering in a ditch, was getting ready to move on under cover of night when the GI stepped out from behind a tree. Grandpa was armed, though he’d shed the uniform, and the soldier held him at gunpoint.

On his knees in a muddy ditch, an armed enemy combatant caught sneaking through occupied territory, he did the only thing he could think of. He said “please.” One word. In German. And after a long pause, the GI put up his gun, said “get up, boy,” and helped my grandpa out of what should have been his grave.

So thank you. From three generations now to another, far greater than any of ours. Not only did they risk their lives, give their lives, to put an end to the awful evil of Nazi Germany, but they showed us mercy, even when none needed to be shown.

To which Scott responds:

That was my father who let him go. Metaphorically.

On the other hand, metaphorically, my father shot him dead.

My dad had started fighting the war in Italy and later ended up in the forces following the D-Day invasion into France. My father was with some unit that was chasing the German occupiers out of some small town in France, and as they were moving down the street, he saw a bunch of people run out of a building up ahead.

One of the runners was wearing a German uniform, and as he had been doing for the past couple of years whenever he saw an enemy soldier, my father shot at him. The German went down. Dead.

Although my father had seen combat several times throughout the war, that was the only time, before or since, that he knew for sure he had killed someone.

Sixty years later, my dad told me that he still sometimes thinks about the man he killed, and he wonders if he could have done something different.

I’m planning to do some serious heavy reading, but I’m torn between several choices of what to study next.

After reading Radley Balko’s article using a police shooting video to illustrate the faulty nature of human memory, and stumbling across Nathaniel Burney’s comic book explanation of the neuroscience behind faulty memory, and seeing a Reason interview about evolutionary psychology, I’d like to learn more about the science of cognition. I’ve read a few popular books on the subject over the years, and I think I’m ready for something more serious, like a college textbook. I’m not sure whether I want to focus on cognitive psychology, which explores what our minds do, or cognitive neuroscience which explores the underlying neurological mechanisms. Textbooks are expensive, so I need to clarify that before buying anything.

Meanwhile, I’m trying to take my amateur economic studies in the direction of public choice theory, and toward that end I’ve been meaning to read Ronald Coase’s The Firm, the Market, and the Law. Coase was incredibly influential, and changed the way economists think about transactional and social costs. Normally I don’t try to read the great works in a field because great thinkers aren’t necessarily great explainers — nobody learns physics from Newton’s Philosophiæ Naturalis Principia Mathematica or evolution from Darwin’s Origin of Species. However, I’ve heard that The Firm, the Market, and the Law is quite readable for someone with a little basic knowledge of microeconomics.

On the other hand, I think I’d like to learn more about behavioral economics. The traditional microeconomic model of human decision making assumes that people are rational utility maximizers, meaning that they want to be happy, and that they work toward that goal as efficiently as possible in the face of scarce resources and uncertain outcomes. This absurdly simple model (a.k.a. homo economicus) is the economists’ equivalent of the physicist’s assumption that everything is spherical and frictionless — it’s not true, but it still gets you pretty far. Recently, economists have started trying to predict economic decision making using more sophisticated behavioral models that assume people make systematic errors that deviate from rational utility maximization. It’s an obvious point, but one that is hard to analyze rigorously. Again, I’m looking for some textbook-level reading in this area. I think there are a couple of books that might work.

Finally, I think I’d like to do some reading about attempts to use economic thinking on the subject of crime and punishment. Economists are pretty good at explaining some types of criminal activity — markets in illegal goods and services work a lot like any other markets — but not so good at addressing issues like the deterrent effects of punishment. Economists are pretty certain that criminals must respond to incentives like everyone else, but a lot of people who work with criminals are equally certain that punishment is rarely a deterrent. Some of the new behavioral economic models may resolve the discrepancy, and so I’d like to learn more about what the scientific literature says. The is not a well-defined field, however,  which probably means I’d have to read a lot of primary sources, and I’m not sure I want to get into it that much.

I’ll figure something out. The world is a fascinating place.

The New York Times has a fascinating story by Sarah Maslin Nir about conditions in New York nail salons. According to her, thousands of immigrant nail technicians are being exploited by salon owners.

As if on cue, cavalcades of battered Ford Econoline vans grumble to the curbs, and the women jump in. It is the start of another workday for legions of New York City’s manicurists, who are hurtled to nail salons across three states. They will not return until late at night, after working 10- to 12-hour shifts, hunched over fingers and toes.

On a morning last May, Jing Ren, a 20-year-old who had recently arrived from China, stood among them for the first time, headed to a job at a salon in a Long Island strip mall. Her hair neat and glasses perpetually askew, she clutched her lunch and a packet of nail tools that manicurists must bring from job to job.

Tucked in her pocket was $100 in carefully folded bills for another expense: the fee the salon owner charges each new employee for her job. The deal was the same as it is for beginning manicurists in almost any salon in the New York area. She would work for no wages, subsisting on meager tips, until her boss decided she was skillful enough to merit a wage.

It would take nearly three months before her boss paid her. Thirty dollars a day.

It’s a well-reported, well-written story, and I have no doubt that there are some bad things going on in the nail salons. However, I think Nir is missing some important aspects to what’s going on in New York nail salons. When you encounter a tale of exploitation like this, there are some important questions you need to ask.

Probably the first of those question should be, If working in the nail salons is so awful, why don’t the women don’t just quit and get better jobs?

I’m sure just asking that question will make some readers want to tell me to “check my privilege,” but I think it’s important to think seriously about the answer. The news is full of complaints about McDonald’s and Walmart employees being paid only the minimum wage. That’s still more than these nail technicians are earning, so you’d think they would be applying for those jobs, offering to work for the same pay (but without protesting in the streets about it). So why don’t they? Why don’t they get better jobs?

Nir never address the issue directly, but she nevertheless supplies a few answers:

Almost all of the workers interviewed by The Times, like Ms. Ren, had limited English; many are in the country illegally. The combination leaves them vulnerable.

These workers are foreigners in this country illegally, so the biggest reason why these women can’t get better jobs is that the United States government doesn’t want them to work here at all. Most legitimate businesses, including major employers like McDonald’s and Walmart, are simply not allowed to hire them. They have to take what work they can get.

Also, they’re probably afraid to complain too much about working conditions because they fear they’ll be deported if they attract too much attention. My boss can only fire me, but Ms. Ren’s boss can get her thrown out of the country if she pisses him off.

Besides, even if their immigration status allowed them to work here legally, they still wouldn’t be allowed to work as nail technicians in New York because they haven’t met the state licensing requirements.

Between U.S. immigration law and New York State professional licensing requirements, government restrictions have robbed these women of much of their bargaining power.

The next question to ask is What do these women have to offer employers?

Not much, according the the facts in Nir’s story. Most of them don’t even know how to do the job yet, so they will have to be trained by whoever who hires them, and their inability to speak English means they can’t serve a customer without help.

In fact, their lack of English language skills severely limits the jobs they can do: Not only do they need to find a job where talking to English-speaking customers is not a requirement, they are also limited to seeking employment at businesses where the managers speak their language.

Another question to ask is What do these women get out of this?

The 20-year-old woman mentioned in the quote above, Jing Ren, starts out by paying $100 to get the nail salon job, and she works for almost three months for free, after which she earns $30/day for a 10-12 hour shift. Here’s the last report on how she’s doing:

She quit on March 8. Her boss said nothing; one colleague hugged her goodbye. After 10 months she had made about $10,000, she said.

Last month, she found a $65-a-day job at another nail salon.

Even if she only works an 8-hour day, that’s less than the New York minimum wage (but more than the minimum for tipped employees).

That doesn’t sound very good, but it does bring me to the next question. These workers certainly make less than regular American workers, but How do their wages compare to wages where they came from?

The Davos global wage calculator tells me that the average private sector wage in China is 32706 CNY, or about $5267. So Ms. Ren paid the equivalent of one week’s wages for the average Chinese worker to get her nail salon job, and worked for free for three months, and yet still managed to earn $10,000 that year. That means that at the age of 20 she is already earning the world average wage, or almost double the average wage in China. With her new $65-a-day job, she will be able to repeat that annual performance by working only three days a week. If she works a full five days a week, she will earn triple the average Chinese wage.

To put that in perspective, the equivalent for an American would be a 20-year-old without a college degree getting an offer to work overseas, paying an $800 fee to get into the program, working through a 3-month internship, and then going on to earn $80,000 the first year and $120,000 the next.

I’m not saying that all the nail salon owners are wonderful people — there’s way too much going on in that article (and its followup) to believe that. Nevertheless, that hasn’t stopped an ambitious, hard-working, risk-taking young immigrant like Ms. Ren from prospering. And as with most immigrants, if she has children, they will probably do even better.

(Obviously, I don’t know much about Ms. Ren’s specific circumstances, and I’m greatly simplifying things for purposes of this post, but I don’t think it invalidates the point that she seems to be doing pretty good compared to where she came from.)

The last question, and arguably the most important one, is What do these women want?

We can figure out what these women want by looking at the choices they make. Jing Ren chose to leave her home and cross the ocean to America to work as a nail technician in a string of seedy New York nail salons. And within a year, her mother came over to do the same. That tells us a lot.

Which brings me to my special bonus question: What happens next?

Well, the Governor has a (hastily pulled together) plan of sorts:

Gov. Andrew M. Cuomo ordered emergency measures on Sunday to combat the wage theft and health hazards faced by the thousands of people who work in New York State’s nail salon industry.


Nail salons that do not comply with orders to pay workers back wages, or are unlicensed, will be shut down.

In other words, if Cuomo’s task force finds workers who are being exploited, they will solve the problem by taking away their jobs? I understand that the goal here is to coerce nail salons into treating workers better by threatening to put them out of business, and it’s possible that this could have a net positive effect. But I guarantee that talk like this is scaring the crap out of all those workers Cuomo says he’s trying to protect. This could easily turn into a disaster that puts thousands of them out of a job. And if Cuomo thinks the nail salons are exploitative, he’s really going to hate some of the alternatives (NSFW).

“We will not stand idly by as workers are deprived of their hard-earned wages and robbed of their most basic rights.”

“Basic rights” like the right to work in a job they find acceptable for a wage they find acceptable?

Some of the proposed regulations seem like they might improve health and safety, but others show a real lack of understanding of the problem:

Salons will now be required to be bonded — which is intended to ensure, through a contract with a bonding agency, that workers can eventually be paid if salon owners are found to have underpaid the workers.

Yeah…salon owners employ illegal immigrants to do unlicensed work at illegal wages, but I’m sure they’ll get right on that bond thing…

The framework for the emergency measures began to take shape shortly after the first article was published on Thursday, according to Alphonso B. David, counsel for the governor. Staff members from several agencies reacted strongly, and began to call one another upon reading the findings, convening on Friday for hours of brainstorming sessions to hash out the plan. A decision was made to take emergency measures rather than go through the usual route by which policies are updated, which involve time-consuming steps like periods of public comment […]

I hear all the best government work begins that way. What could possibly go wrong?

Well, for one thing, the plan to force nail salons to pay their workers more might succeed. As Rich Lowry puts it in his wildly off-the-mark opinion piece,

Surely, one reason that salons can pay so poorly is that the supply of illegal workers is so plentiful.

And this supply of labor must, at least at the margins, crowd out workers already here who might consider working in salons if pay and conditions were better.

These immigrant women bring very little to the bargaining table except their willingness to work in unpleasant conditions for low pay. If you force the salon owners to spend more money on wages and equipment, they’re not going to stick with their unskilled labor force. They’re going to replace them with nail technicians who are already trained, who speak English, and who have the legal right to work here.

Apparently there’s also been a public backlash against low-cost nail salons in New York, with lots of middle class women saying they’ll stop using them. I think their hearts are in the right place, but a move like that that could put the cheap nail salons out of business, which would put immigrant workers like Ms. Ren out of a job.

I understand the desire to try to help, but it’s important to remember that these nail salon jobs (and other low-paying jobs like them all over the country) provide a path up out of poverty for thousands of people every year. The wrong response could shut that down and do a lot more harm than good.