New York Times reporter Matt Apuzzo has a fascinating story about Dr. William J. Lewinski’s work as an expert witness in police shooting cases.

When police officers shoot people under questionable circumstances, Dr. Lewinski is often there to defend their actions. Among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country.

Apuzzo’s story is reasonably balanced, but I’d like to talk about a number of red flags when it comes to Lewinski’s work.

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

My guess is that most police shootings are justified — at least from the point of view of the officer pulling the trigger — but if Lewinski is reaching the same conclusion every single time, then what exactly is he bringing to the table? How much expertise is he contributing when you could replace him with a guy holding up a sign reading “The officer acted appropriately”?

Consistently finding that the officers acted appropriately also raises the issue of bias, which is the next red flag:

He has appeared as an expert witness in criminal trials, civil cases and disciplinary hearings, and before grand juries, where such testimony is given in secret and goes unchallenged. In addition, his company, the Force Science Institute, has trained tens of thousands of police officers on how to think differently about police shootings that might appear excessive.

That’s a pretty big conflict of interest. He runs a company that gets most of its money from police departments to train police officers, and then he offers expert testimony on police conduct in court cases which could send police officers to jail and cost police departments millions of dollars in damages. If he testifies against an officer in a shooting, he risks alienating the sources of his income.

Many policing experts are for hire, but Dr. Lewinski is unique in that he conducts his own research, trains officers and internal investigators, and testifies at trial.

When it comes to the credibility of an expert, doing original research can go either way: On the one hand, it can be a good sign because making original contributions to a field of knowledge requires you to understand it in great detail. On the other hand, it can be a bit of a red flag because it’s easy to cross the line between original science and making up your own special science. (See, for example, forensic bite-mark “expert” Dr. Michael West.)

Lewinski’s personal “About” page says this about him:

Dr. Bill Lewinski is one of the world’s leading behavioral scientists whose work has focused primarily on the intensive study of the human dynamics involved in high stress, life-threatening encounters.

And his Force Science Institute “Who We Are” page describes his research this way:

Dr. Lewinski is conducting the leading research on human behavior in force encounters. His current focus is on action/reaction parameters, perception, attention & memory and judgment. His research has been published in national law enforcement publications, websites and e-news lines. This research has been highlighted on 48 Hours Investigates and the BBC’s Panorama.

Those are not exactly scholarly publications. In fact, of the nineteen published research papers listed by Dr. Lewinski, sixteen are in law enforcement publications. On the other hand, the remaining three papers appear to be genuine research published in legitimate peer-reviewed journals. The man has a Ph.D. and he taught college courses for decades. He’s been involved in some real research.

Still, this is not the research output of “one of the world’s leading behavioral scientists.” For instance, a quick search shows that his most-cited paper was referenced 23 times. By comparison, my old college adviser has a paper that was cited 94 times, and while he was a great teacher, he wasn’t a leader in his field either.

It’s also hard to say what Lewinsky contributed to his two most-cited peer reviewed papers because he wasn’t the lead author for either of them. That was Professor Joan N. Vickers from the University of Calgary Kinesiology department. She has dozens of peer-reviewed publications, many of which have been cited hundreds of times, which means she probably is the kind of scientific leader that Lewinski wants people to think he is.

Apuzzo’s article discusses some criticisms of his research, but I have no way to tell how valid they are. It appears that much of his research is about human behavior under stress in situations typical of police shootings. For example,

In 1990, a police shooting in Minneapolis changed the course of his career. Dan May, a white police officer, shot and killed Tycel Nelson, a black 17-year-old. Officer May said he fired after the teenager turned toward him and raised a handgun. But an autopsy showed he was shot in the back.

Dr. Lewinski was intrigued by the apparent contradiction. “We really need to get into the dynamics of how this unfolds,” he remembers thinking. “We need a lot better research.”

He began by videotaping students as they raised handguns and then quickly turned their backs. On average, that move took about half a second. By the time an officer returned fire, Dr. Lewinski concluded, a suspect could have turned his back.

That seems plausible to me. I don’t know enough about human perception and reaction to know if that particular example is correct, but I do know there’s been a lot of research in this area. We’ve learned a lot about the limits of human perception and behavior, including that we overestimate our ability to understand what happened, and it all gets worse under stress.

That’s why I think it’s wrong to impose severe criminal punishments on people when they make ordinary human mistakes, even when the consequences are unusually tragic, and I see no reason not to extend that principle to the police. Civil damages are a different matter. After all, the officer still made a mistake, and someone still got hurt who didn’t have it coming.

Somewhat disturbingly, Dr. Lewinski doesn’t see it that way. He doesn’t think the officers made mistakes. He the thinks the limitations of human perception and reaction are a justification for a frightening shoot-first policy:

The shooting looked bad. But that is when the professor is at his best. A black motorist, pulled to the side of the road for a turn-signal violation, had stuffed his hand into his pocket. The white officer yelled for him to take it out. When the driver started to comply, the officer shot him dead.

The driver was unarmed.

Taking the stand at a public inquest, William J. Lewinski, the psychology professor, explained that the officer had no choice but to act.

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

That’s not the first time we’ve encountered cops who shot people for doing exactly what the cop told them to do. It seems like a no-win scenario for motorists.

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Lewinski is talking about the generally uncontroversial observation that human physical actions are faster than reactions. A bad guy deciding to shoot a cop has the advantage of surprise, so he can be pulling the trigger before the officer has time to recognize what’s happening and respond. This is a real concern for police officers, but Lewinski’s recommendation that officers should solve that problem by shooting before they see a clear threat is deeply disturbing.

Just imagine what it’s like for the black motorist in this story. A cop stopped him, and for whatever reason he had his hand in his pocket. Yes, the smart thing would have been to hold both hands where the cop could see them, but he goofed, and now the cop is screaming at him. What is he supposed to do?

If we accept Dr. Lewinski’s evaluation of the situation, it doesn’t matter if he keeps his hand in his pocket or pulls it out. Either way, the cop should shoot him, because waiting to see if he has a gun would put the cop at risk. So neither of the motorist’s choices will get him out alive. The simple act of putting his hand in his pocket was a fatal mistake from which there is no escape.

On the other hand, what if the motorist did have a gun in his pocket. Then he might be able to survive the encounter with this cop by pulling the gun as fast as he can and shooting first, before the cop can shoot him.

If someone is trying to murder you, even if it’s a cop, you have the right to self defense. Of course, you can’t be doing something wrong at the time — robbing a liquor store, mugging an old lady, breaking into someone’s home — you have to come into the situation with clean hands. But the only thing the motorist does wrong in this scenario is having a hand in his pocket, which is not a crime.

(The paradoxical thing is that having a gun might violate the law, which might mean he can’t claim self-defense, but not having the gun would leave him clear to defend himself, but he’d have no means of doing so.)

You might argue that the motorist has no reasonable belief that the cop is going to kill him: Just because an armed cop is standing outside his car screaming at him doesn’t mean the cop is going to murder him for no reason. That seems like a pretty good argument, but Dr. Lewinski refutes it for us:

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

By Lewinski’s own logic, the black motorist can’t afford to wait too long to decide whether or not the cop is going to kill him. By the time he sees the muzzle flash, it’s too late. Best to shoot the cop first, just to be safe, right?

(Reminder: I’m not a lawyer and this isn’t advice. This is a hypothetical argument in a blog. For God’s sake, don’t go thinking it’s okay to shoot cops!)

You might still think it’s not reasonable for the black motorist to believe that the cop will kill him for no reason. Yet that’s exactly what Lewinski is claiming the police officer should do: Kill the motorist before he sees a clear reason to do so. So not only is Dr. Lewinski providing a self-defense argument for black motorists to shoot cops, he’s also providing empirical justification for believing cops are likely to shoot them for no reason, because that’s what he’s telling them to do.

We could apply Dr. Lewinski’s argument more broadly: If you’re a white guy walking down the street and you see a young black male walking toward you, how can you be sure he’s not going to shoot you? Best to shoot him first, just to be sure. After all, if you see the gun, you’re dead, right?

Of course, if you’re the black guy, and you see a white guy coming toward you, shouldn’t you shoot him first? After all, he’s probably thinking about shooting you first. Or maybe not, but can you afford to wait until you’re sure? Dr. Lewinski doesn’t think so: If you see the gun, you’re dead.

We could follow this line of reasoning as far as we want, until we’re gunning each other down in the streets for not showing empty hands and hurtling nuclear bombs across the oceans because we fear our enemies might do the same.

My real point is this: The reason we can justify so much mayhem with Dr. Lewinski’s argument is that Dr. Lewinski’s argument is morally bankrupt. It fails the “What if everyone did that?” test. He’s not telling cops to kill to protect themselves from danger, he’s telling them to kill whenever they can’t be sure they’re safe. And no one can never be sure they’re safe.

A few years back, I wrote about one of those puppycide incidents that went really bad:, and I asked why police couldn’t use less lethal methods to subdue the dog. Someone defending the police told me it would be nuts to go on a drug raid with pepper spray instead of a gun. (Apparently it’s an either/or thing.) My response was that if this was true, then by choosing to conduct drug raids with gun in hand the police have also chosen in advance to meet all resistance with lethal force: Could be a bad guy with a gun, could be a lady with a baseball bat, could be a 10-year-old boy with a hammer. They all get a bullet.

If that’s really the case, then maybe police shouldn’t be conducting so many raids. And if we accept Dr. Lewinski’s argument that cops doing traffic stops should be able to shoot anybody who might be a threat, then maybe they shouldn’t be doing so many traffic stops.

I think it’s telling that you only really hear this argument as a defense after the fact. No police department issues up front warnings to citizens that they will be shot if they fail to put their hands up as an officer approaches. That’s because they know this is a shameful policy, and they don’t want to claim it unless they have to.

Getting back to my example of cops who run into a frightened 10-year-old with a hammer during a drug raid, despite all the bad stuff we’ve seen cops do over the years, I’m confident most officers would find a way to handle that kid without shooting him. Because nobody wants to kill a child.

So maybe the best way to get police to stop unnecessary killings is to find a way to make them want to stop unnecessary killings. Maybe cops will find better ways to stop motorists that are less risky for everyone. Or maybe when a cop who sees a black motorist with his hand in his pocket, he will just roll with it and hope he doesn’t get shot. After all, that’s what the black motorist is doing.

(Hat tip: My co-blogger Ken helped me to characterize the legitimacy and influence of Dr. Lewinski’s research.)

Both Jeff Gamso and Scott Greenfield have written about Brooklyn Supreme Court Justice Mark Dwyer’s opinion in People v. Collins discussing the admissibility of a certain type of DNA analysis in a criminal case. Since I have an amateur’s interest in both science and criminal law, I thought it might be interesting to read the actual opinion.

Surprisingly, despite the complexity of the subject and the amount of detail, it’s actually pretty readable. Dwyer takes the time to explain a lot of what the reader needs to know to understand what’s going on. And if you’re interested in this kind of thing, it’s fascinating. I think I understand it, so let me see if I can explain some of the science…

The basic issue is whether the court should allow the prosecution to present a certain type of DNA evidence from the New York City Office of the Chief Medical Examiner. DNA evidence itself is generally considered very reliable, but in this case the evidence was based on a very small sample of genetic material discovered at the crime scene and processed using a technique called high sensitivity analysis. The judge had to decide if this specialized technique was good enough to allow it to be admitted as evidence.

To understand the basic problem, imagine that you get a voicemail message in which the caller is speaking so quietly you can’t understand what he’s saying. So you try turning up the volume. This makes the caller’s voice louder, but it also amplifies the crackle and pop of the phone line and the background noises behind the caller. The amplifier circuit even introduces some noise of its own. So even though the caller’s voice is louder, you still might not be able to make out what he’s saying.

Photographers working in low light see a similar phenomenon when they try to crank up their camera’s ISO sensitivity. It makes the picture brighter, but it also adds a lot of speckled noise to the image. This happens to the image for roughly the same reason turning up the volume doesn’t make the voice easier to understand: In trying to amplify the signal, you’ve also amplified the noise — and introduced some as well.

The same thing happens with high sensitivity DNA analysis. One of the steps involves using a process called PCR to vastly multiply the number of copies of the DNA markers in the sample, because the process for measuring the markers requires a lot of material to work with. This process is called “amplification,” and just as with the audio and photographic examples, it will amplify the noise and introduce some of its own.

When the starting DNA sample is fairly large, it’s like a voicemail caller who speaks loudly or a photograph taken in bright sunlight: The signal stands out clearly from the noise in the system. When the sample is small — so-called “touch DNA” or a very degraded sample — the noise can overwhelm the signal.

The ME’s office came up with an interesting way to deal with the noise problem: Basically, they fed samples of known DNA through the high-amplification process and measured the statistical likelihood of the different types of noise. This allowed them to develop mathematical models of the effects of the various types of noise.

That wasn’t enough to filter out the noise completely, but it did allow them to make probabilistic determinations about the original DNA sample. Given a particular amplification result, they could now estimate the probability of getting that result from a particular suspect’s DNA fed through the noisy amplification process. They could also produce an estimate of the probability of getting that result from a random member of the population for comparison. Finally, they could even do this for mixtures of DNA from several people. The end result is that they could say things like, “It is 100,000 times more likely that this is a mixture of the defendant’s DNA and that of two other random people than that it is a mixture of the DNA of three random people.”

That’s not the sort of trillions-to-one odds you get with pristine DNA samples, but it is pretty good. If the science is for real. Which was kind of the question in front of Judge Dwyer.

In New York, the standard for admissibility of scientific evidence is Frye, which basically boils down to saying that the methodology behind the evidence must be widely acceptable to the relevant scientific community.

The high sensitivity analysis technique in question had recently been invented by the New York ME’s office and was not used much elsewhere, so Judge Dwyer could not conclude that it was widely accepted on that basis. His analysis didn’t end there, however, because the technique might still be considered widely accepted if it consisted only of components that were widely accepted. That is, doing several widely accepted things together is probably still widely accepted.

Judge Dwyer found that many parts of the high sensitivity analysis technique were indeed widely accepted — polymerase chain reaction amplification, electrophoresis, Bayesian statistics — but not all of them. Therefore he found that high sensitivity analysis was not widely accepted.

The problem that struck me as most significant was the experiments conducted by the New York ME’s office to determine how high-amplification noise affected the known DNA samples. This was a unique experiment, and as such it was a great piece of science, but until other labs have reproduced the results, it can’t really be considered widely accepted. Furthermore, the custom software that does the statistical analysis has not been made available for review, so it’s not clear how other labs could ever reach a conclusion about its acceptability.

Judge Dwyer’s opinion goes into a great deal more detail about the potential causes for concern and why he’s ruled that the technique is not widely accepted. It’s clear he’s given this a lot of careful thought, and as an observer of our justice system, it’s great to see judges take such care to get the science right. It makes me feel good about the system.

Trust Jeff to ruin that:

…he did something that almost never happened with expert evidence: he did it properly. That’s worthy of some note. Frye is readily abused.

And Scott:

To the uninitiated, what happened in Collins may seem, well, normal, expected even, since it’s perfectly reasonable to expect judges to do their job.  But what Justice Dwyer did was remarkably bold, maybe even exceptional.  He said “no” to a new wrinkle in DNA analysis, and he did so after other judges said, “sure, why not?”

With pathetic regularity, the by-product of bad forensic science is revealed when defendants convicted with the utmost certainty are later exonerated.

Oh well. At least it felt good while I was reading it.

This is the second half of my summer trip report. Part 1 took us through our stay at the Opryland hotel.

The next day we checked out and made our way to Memphis. Every time we’ve been to that city, we’ve made it a point to stop in at the Peabody Hotel downtown for drinks or a meal or just to see the famous ducks in the lobby. This time, however, we were checking in for a few days.

Morning Duck March at the Peabody Hotel, Memphis

The Peabody opened in its original location in 1869 and a lot of famous people have visited it over the years, from Johnny Cash to Michael Jordan to the Dalai Lama. Elvis had his high school prom there, and he came back a few years later to sign the paperwork for his RCA deal, some of it scrawled on Peabody stationary. Tom Cruise shot parts of The Firm on the rooftop.

The Peabody’s French restaurant, Chez Philippe, is arguably one of the best restaurants in Memphis, so naturally my wife and went across the street for burgers at Huey’s. We didn’t shoot any toothpicks into the ceiling, but apparently it’s the thing to do.


Between Huey’s and Corky’s, we stayed away from the hotel restaurants and still had a lot of good food. The only meal we had in the hotel was a magnificent Sunday brunch at the Capriccio Grill.

Writer David Cohn has written,

The Mississippi Delta begins in the lobby of the Peabody Hotel in Memphis and ends on Catfish Row in Vicksburg. The Peabody is the Paris Ritz, the Cairo Shepheard’s, the London Savoy of this section. If you stand near its fountain in the middle of the lobby, where ducks waddle and turtles drowse, ultimately you will see everybody who is anybody in the Delta and many who are on the make.

That a great paragraph, and it was probably true when Cohn wrote it. The Peabody has a long history of ups and downs — it moved to a new building in 1925, and it went completely out of business in the 1970s (along with most of downtown Memphis), before being take over by new owners — so the Peabody today isn’t as connected to its history as they like to pretend, but it’s still a beautiful old hotel, full of rich architectural detail wherever you look.


If you find yourself visiting Memphis, you should at least stop in and have a drink in the lobby.


Whenever we’re away from home, my wife begins to miss the cats, so on long trips I like to try to find local rescue shelters where we can visit some kitties. In Memphis we stopped in at Mewtopia Cat Rescue, a small shelter in a converted former veterinary clinic in eastern Memphis. The volunteer staff told us stories about how they had acquired the place, a former veterinarian’s office, and the work they did to refit it as a cat shelter. It seems like a good place for lost cats.

As we walked around, I noticed one cat kept coming back to rub against my legs. I had the urge to pick him up, but I didn’t want to spook him, so instead I sat down to see if he’d sit in my lap. Sure enough, within a few seconds he climbed up and then put his paws on my shoulder and purred as he nuzzled my neck. A few minutes later in the kitten room I noticed a cat watching me intently, so I turned away slightly and hunched down, and he jumped right up onto my shoulders. Apparently I now have an unsettlingly good grasp of cat body language.

On our way home to Chicago we spent the night in St. Louis. We both (totally unfairly) think of St. Louis as an armpit because our last time there we stayed in a crappy roach-infested Days Inn. Determined to give the city another chance, we stayed in a somewhat more expensive room at the Renaissance St. Louis Grand Hotel…which didn’t quite work out.

There weren’t any roaches, but the hotel had just been through some major renovations, and everything had that not-quite-ready feel. For example, even though we had some kind of “executive” room, the desks hadn’t been installed yet, so the hotel sent someone to setup a chair and a card table (fortunately we bring our own outlet strip). And when we hit the hotel restaurant for late dinner the staff seemed flustered, like they weren’t really used to dealing with guests.

I know, I know, I’m whining. But given the high quality of the last three hotels, it was a bit of a letdown, and not nearly enough cheaper to make it a good deal.

That was one of the things I learned on this trip: Stay at convenient but relatively inexpensive hotels while traveling and save the nicer hotels for the destinations.

Speaking of hotels, here’s the scorecard:

Fastest wi-fi: Opryland Hotel.

Most over-priced wi-fi: Renaissance St. Louis Grand Hotel.

Best customer service: Opryland Hotel.

Best feeling like a big shot: The Peabody, especially when swiping my key card in the elevator to get it to stop on our “special” floor.

Most overpriced soda pop: Opryland Hotel.

Fastest elevators: Marriott Courtyard Louisville Downtown.

Slowest elevators: The Peabody.

Most comfortable bed: The Peabody.

Ever since I took up the hobby of photography, I’ve had to deal with the issue of people getting annoyed or suspicious when I start taking pictures. On private property they often ask me to stop, and even on public property they ask questions, especially at night.

One good exception is weddings, like the one that started our trip. My photography hobby has transformed weddings from tedious social occasions to exciting opportunities for picture taking. People actually want me to take pictures, and they appreciate when I post them.


I learned about another nice exception on this trip: You can wander the halls of great hotels like the the Opryland and Peabody taking pictures, and even at 2 am nobody will question you. This seems like something I’ll be able to put to good use in the future.

One last thing I learned is that once I relaxed and surrendered to the higher-than-normal cost of everything on this vacation, I got used to spending money. $120 dinners for two began to seem normal, and why not get a few 20-ounce bottles of Diet Pepsi for the room at $3.00 each? I was going price-blind.

Anyway, when we woke up the next morning, we skipped breakfast, GTFO of St. Louis, and drove almost straight through to Chicago. We stopped at home long enough to bring up a load of luggage and turn on the air conditioning, and then we drove to dinner at Ledo’s Pizza while the place cooled off.

Life was back to normal.

Rapper Chief Keef was originally scheduled to perform at the Red Moon Theater in Chicago at a benefit for the family of Dillan Harris, a 13-month-old baby killed in a car accident. However, Mayor Rahm Emanuel’s office put pressure on the venue to cancel the concert,

The city called Red Moon and requested they not host the concert, calling Chief Keef “an unacceptable role model” who “promotes violence.”

Apparently Mayor Emanuel is acting as the arbiter of acceptable musical performances in Chicago. So if you’re planning to have gangsta rappers or outlaw country singers at your event, be sure to run them past the Mayor’s office first to make sure they are morally pure. Also, I assume performances of Threepenny Opera are now forbidden, because Mack the Knife is a bad role model for the children.

Chief Keef’s performance was rescheduled to be at the Craze Fest concert festival in nearby Hammond, Indiana, but Hammond Mayor Thomas M. McDermott Jr. reached out to shut that down as well:

“I know nothing about Chief Keef,” Mayor McDermott, 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”

First of all, circumventing Illinois by going next door is kind of northwestern Indiana’s value proposition: Drive toward Indiana on I-80 and you’ll see a dozen billboards for fireworks stores and strip clubs.

In any case, the argument for kicking Chief Keef out of Craze Fest comes with a bit more of a rationalization:

All of the Craze Fest acts — which included Riff Raff, Lil Bibby and Tink — had been previously vetted because the event was held at a public park…

That sounds at least superficially reasonable, except that when public space is involved, I’m pretty sure the authorities aren’t supposed to discriminate against the views expressed. Just because newspaper vending machines are placed on public sidewalks doesn’t mean government authorities can control what stories are printed. They shouldn’t be allowed to control the content of musical performances either.

There’s one more thing, and if you haven’t spoiled it by reading the links, it will blow your mind: Chief Keef apparently has outstanding warrants in Illinois (for a missed DUI hearing and child support), so he was never planning to come here anyway. Instead, he was going to appear by hologram, which is apparently a thing we can do here in the future.

So what this boils down to is that, except for a difference in display technology, the mayors of Chicago and Hammond now think it is their business to tell event producers what they can have on television. Logically, it’s no different than them putting pressure on movie theaters to not show Roman Polanski movies. Even if they have a valid point — that watching Polanski movies or Chief Keef concerts is repugnant — they have no business using the power of public office to force their cultural tastes on others or to prevent others from exercising their own cultural tastes.

I don’t know anything about Chief Keef, but Mayor Emanuel is right that there are bad role models involved: He and Mayor McDermott are censorious thugs.

Update: First Amendment expert Eugene Volokh weighs in:

Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be “basically outlawed,” even “in Chicago.”

Our trip this year started off with a wedding — the son of an old friend was marrying a wonderful woman who we all liked — and we caught up with the show at the rehearsal dinner on Friday night. It was at Luigi’s House, which seems like a decent enough restaurant. The hotel, on the other hand, had a really hard bed, slow elevators, and questionable bathroom plumbing.

On Saturday, we went downstairs to a special room the wedding party had rented for the bridal party to prepare. They had a couple of hairdressers in, and then my wife spent a couple of hours helping the bridesmaids get made up — she’s got some makeup skills — and I took pictures.


Then it was on to the ceremony — which was nice and short — and then off to the reception, which turned out to be great fun. It was also a chance for me to try out the low-light shooting capabilities of my new camera gear. Between some fast lenses and the high ISO you can get from cameras these days, I was very happy with the results.

The next day, we got out relatively early and drove east into Indiana and then south down I-65. (I think every driving trip I’ve taken in this century has required a drive on I-65 in Indiana.) The sun was still up when we veered off I-65 to take highway 31 onto the Clark bridge for the river crossing into Louisville.

We checked into the Marriott Courtyard Louisville Downtown, which was very empty — I got a parking space right next to the elevator. This hotel turned out to be a lot nicer than the one we had stayed in for the wedding, with fast elevators, working plumbing, and a comfy pillow-top mattress on the bed.

For dinner, based on the recommendation of a coworker of mine, we drove back across the river for snacks at Cluckers, which turns out to be a surprisingly good place to relax on Sunday night after a long drive. It’s simple food in a laid-back environment, with a nice view of the river.

On Tuesday morning we got back onto I-65 the next morning and headed south toward Nashville. We were making good time, and so we were puzzled when Google navigation pinged to ask us if we wanted to take a route that was 4 minutes faster. That seemed odd, because hadn’t it already chosen the fastest route? Assuming it was a GPS glitch, I decided to ignore it.

A few minutes later we ran into a traffic jam and came to a complete halt. We weren’t even inching forward. We were stopped. Google Maps traffic showed the road solid red for the next half mile. It seemed likely that something bad had happened just ahead of us, but it was too far away to see what.

We had stopped just a couple of hundred yards past the off-ramp to Bethel road, and I could see a stream of cars getting off and turning left. I guess this was probably what Google would have advised us to do. As we waited, I saw a firetruck arrive on Bethel and take the on-ramp to the expressway ahead of us.


While I waited, I got out and took a few pictures, and I surveyed the landscape between the expressway and the ramp for the exit we had just missed, trying to decide if our Acura RDX could cross it. On the one hand, the RDX is sold as a crossover vehicle and has all-wheel drive. On the other hand, it’s not really much of an SUV. On the third hand, gently sloping land isn’t exactly challenging terrain. On the fourth hand, I’ve heard that grass can be unpredictably slippery or muddy. Ultimately, I decided to just wait.

After about half an hour traffic suddenly started crawling forward. As usual, people weren’t ready for it. If you’ve never been in a large expressway standstill before, it’s surprising how fast cars get moving once the blockage is cleared. They don’t reach a very high speed, but the impulse for the transition from stopped to moving propagates backward surprisingly fast. If you’re outside your car and you notice movement ahead, you need to rush quickly if you don’t want people driving around you.

When we reached the location of the blockage, our two southbound lanes were still blocked by about five or six emergency vehicles, and we all had to squeeze by on the right shoulder. Off to the left we could see an appalling mess. It looked like a guy in a white pickup had been towing a mobile home which had somehow gone off the left edge of the highway and flipped over the guard rail into the ditch. It had broken open, spilling blankets, clothing, shoes, coolers, and a hundred other personal effects all over. There was no way to tell if anyone had been inside. I’m pretty sure you’re not supposed to let anyone ride in a trailer being towed that way, but I know some people do it anyway.

We eventually reached our first real vacation destination, the Opryland hotel. I had visited the place many years ago for a tech convention, although I stayed across the street in cheaper accommodations. Then a few years later, my wife and I passed through and had a nice dinner in the Cascades restaurant. This time, we were going to stay in the hotel for a few days.

The Opryland hotel is frackin’ huge. It’s got a couple of thousand rooms divided into sections separated by enclosed, climate-controlled garden areas filled with pathways, fountains, and restaurants. It’s a beautiful place, and I highly recommend you stop in just to see it if you’re ever in the area.

On the other hand, all of the meandering gets a bit tiring after a while, and it seemed that no matter where we wanted to go, it was always a long walk to get there (top speed: mozy). Wear comfortable shoes, and ask for a map or be prepared to ask directions a lot. The paths are confusing, and the bellman told me it takes about a month to really learn your way around.

Also bring a lot of money. A giant resort hotel like Opryland has everything you need for a few days, and it’s a pain in the ass to leave the property, so they get to jack up all the prices. And although the Cascades restaurant had some really tasty dishes that might be worth the money, there’s something just wrong about the overpriced burgers at Stax. And someome should tell them that selling bottles of Diet Pepsi for $3.50 makes Baby Jesus cry.

On Tuesday night we attended a show at the Grand Ole Opry. I’m not a huge fan of country music so I didn’t know any of the acts except Rascal Flatts, but my wife knew about half of them and she had a really good time. I had a good time too. Country music is a lot more fun when it’s performed live right in front of you.

A friend recommended that we try the Old Hickory Steakhouse in the Delta area of the hotel, so that’s where we ate on our last night. It was a meal to remember. First of all, because this was our anniversary vacation, the hotel comped the entire meal, which would not have been cheap.The Caesar salad was startlingly fresh, the steak was very good, and the side dishes were all great. The oddest thing I’ll remember about our meal, however, was our waiter, Paul.

All of the staff at the Opryland Hotel have clearly had impressive amounts of customer service training, but Paul took it to the next level: He was efficient without being brusque, friendly without being intrusive, attentive without being smothering, and he seemed to be a good spirited fellow in a way that didn’t feel forced. It’s weird to say this, but I think he might be the best waiter I’ve ever had.


That’s enough for now. I’ll wrap this up in the second half.

Scott Greenfield has an interesting post about how much computerized data the government is allowed to seize when serving a warrant. Current practice is to seize it all and do whatever they want with it. Orin Kerr had proposed allowing the government to continue to seize all the data but putting restrictions on the use of that data so that only data responsive to the warrant can be used.

Scott’s position, if I understand it correctly, is that the warrant limits the scope of the seizure to the data specified in the warrant, and if the government can’t figure out how to limit their seizure to that data alone, then they just don’t get to seize anything. Too bad, so sad.

In my heart, I like Scott’s argument. He’s argued in that past that it’s a bad idea to make rules for the digital world by using analogies with the way we did things in the pre-digital world. That makes a lot of sense to me. We now store far more data in digital form than in the forms of data storage available when the Fourth Amendment was passed — my guess is we have more on our hard drives now than has ever been written down in all of human history — and if we were to make up rules from scratch to keep people secure in their persons, houses, papers, effects, and digitally stored data, against unreasonable searches and seizures, they would be considerably different from the rules we’ve evolved by analogy.

We’ve been witness to a similar situation when applying copyright law to digital data. Historically, copying and distributing creative works has been hard, so it made sense to have rules that govern copying and publication. And in the early years of the digital media revolution, copyright owners and publishers tried to build a virtual digital implementation of the system of rules we had been using for printed and recorded works. But as soon as consumers discovered they could copy digital works quickly, cheaply, and perfectly, they started to abandon the old copying and publication rules as too cumbersome, and we now seem to be evolving toward a system based around convenient access to source materials: If I hear a song on the radio and I want a copy, it’s much easier for me to download it from iTunes for $1.29 than it is to find someone willing to let me copy it for free. (Eventually, we will probably have laws that allow us to do this without 57-page click-to-accept legal agreements.)

Congress and the courts have been damned slow to adapt the search and seizure rules to the digital world in a reasonable way. Between things like the current rules for seizing computers and the third-party doctrine, the government has far too much easy access to our digital data, but I like to think that will eventually change as more people who grew up living in the digital world become judges and members of Congress. Someday they’ll get it, and we’ll get robust protection of digital data. Until then, Orin’s plan is about as good as it’s likely to get.

Still, I have at least three suggestions for improving Orin’s plan:

First and foremost (and least implausible),  the government should not be allowed to seize computers for longer than it takes to copy the data and return the computers to the owners. A business without its data is a business that cannot operate, and a warrant to seize data becomes an order to shut a business down. (Even having a personal computer seized is damned inconvenient and expensive.) This is a longstanding problem with seizing evidence, but given that digital copies are quick, cheap, and perfect, it’s an area where seizures in the digital world can and should be less troublesome than in the physical world.

Second, it would be nice for a change if the restrictions on the government came with real teeth. I’m not sure how that could work, however, since the initial seizure would still be legal. But without any punishment for breaking the rules, the government will still try to use everything it has, and the worst that could happen is that a judge will say no. And really, if the government discovers something juicy in the non-responsive seized data that they’re not allowed to use, is it realistic to assume they will simply ignore it? Without serious penalties, what’s to stop them from trying a little “parallel construction” to conceal the fact that they’re using the restricted data?

A similar problem arises in civil lawsuits when one party wants to examine business records from another party, such as all emails relevant to the disputed matter. The party responding to the discovery request doesn’t want to turn over all its email messages, full of sensitive business secrets, to the opposition, but the party requesting the email messages doesn’t trust the provider not to leave out messages that would hurt it in the lawsuit. One common solution to this problem is to have the responding party turn over all email messages to a neutral third party which is responsible for picking out the relevant messages and turning them over to the party requesting them.

So my third suggestion is that perhaps digital data seizures in criminal matters could be filtered through a neutral third party as well. I believe there’s some precedent for this in the way client files are protected when a lawyer is being investigated for a crime: The court appoints a special master to review the files for privileged material. Perhaps that protection could be extended more broadly to include filtering terabytes of non-responsive data down to just the material specified in the warrant. It would be a time-consuming and expensive process, but maybe that would discourage fishing expeditions, especially the fishing expeditions that turn into massive data dredging operations.

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.