1.
1. Welfare Cheats
There are welfare cheats, if not as many as popular opinion
has it (and of much lighter median skin shade.) Still welfare cheats do exist,
and in not insignificant number. That there should be welfare cheats in
inevitable in an industrialized 21st century society. We cannot let
those unable to care for themselves die or sink into miserable destitution, and,
in modern conditions, families, neighbors, and private charities cannot cover
all the cracks through which people slip. So there must be at least some
minimal state safety net, and it is impossible to design a safety net that will
catch the intended beneficiaries without some of the clearly unintended sneaking
in. Tax money will be redistributed from
the rest of us to the cheats. This is unjust, and ineliminable.
2.
2. Tax Cheats
More serious injustice is the wealth redistribution from the
honest tax payer to the tax cheat. For U.S. federal taxes alone this amounts to
something in the vicinity of $450 billion a year. High estimates of welfare
fraud place it at about 10% of the welfare budget. Federal tax fraud is in the
neighborhood of 18% of the tax that ought be collected. Most welfare cheats are
low income, and welfare cheating redistributes income downward. The opportunity
for large tax fraud is greater for complex returns involving large sums. The school janitor has few openings for tax
fraud; the real estate billionaire has many. So tax fraud almost certainly
redistributes income upwards. (I cannot resist observing that congresspersons who
rail most loudly against “welfare queens,” tend also to vote to cut the funding
for the IRS. They and their friends and funders are not former janitors.)
Income tax fraud could not be eliminated short of
abolishing taxes altogether or adopting
a tax flat not as to rate but as to total – everyone over the age of 18, pays
the same fixed amount, perhaps $1,000 or $100,000. A minor problem with this latter proposal is
that $1,000 wouldn’t fund even the most minimal operations of the most minimal
state, and there are some who don’t have $100,000 to pay. Using a means test to
overcome this flaw of the absolute flat tax would doubtless stimulate the
fraudulent understating and hiding of means. Evasions exist even for sales and use taxes.
Perhaps “to each according to the needs of each” would mean
the elimination of taxes and hence tax fraud. The details of this distributive principle,
however, Marx left to be worked out by society once it progressed that far. At
this point we do not even know what would be the solution to the “Who gets the
lobster?” problem. (Well, maybe it is obvious that there would be a lottery
among those who signed up on the lobster list; and perhaps Bellamy’s solution
in Looking Backward would settle that
other chestnut of a question: Who collects garbage? He proposed a market mechanism – the most
unappealing jobs had the shortest
hours.)
Still for the foreseeable future nothing will be as certain
as death and tax fraud.
3. 3. Punishment of the Innocent
Surely we all agree that jailing people for a day is a more
serious infringement on their liberty than is taxing them an extra dollar
because others defraud welfare or an extra $10 because others cheat on their
taxes. Punishing the innocent is an awful injustice, but all societies do it.
Blackstone’s Commentary
on the Laws of England famously set out that “It is better that ten guilty
persons escape than that one innocent suffer.” Benjamin Franklin was more aggressive with a Blackstone Ratio of 100 to
1, which had been topped centuries earlier by Maimonides who advocated a 1,000
to 1 ratio. (Bismarck, Pol Pot, and Dick Cheney are on record on the other side.)
A high Blackstone Ratio may guide criminal trial procedure
through such devices as the presumption of innocence, proof beyond a reasonable
doubt, and corroboration of confessions and co-conspirator testimony. Yet there
are still innocent people convicted. The
most extraordinary conjunction of coincidences or the most carefully engineered
frame-ups will sometimes defeat even the most scrupulously cautious criminal
investigation and trial system.
When I was a defense lawyer I sometimes found it stressful
to work for the acquittal of the guilty. The labor of holding the prosecution
to its burden of proof was, however, my personal contribution towards a system
that keeps the Blackstone Ratio high. When I defended the innocent, the stress
was many times greater. It was my special responsibility to make sure that the
state did not commit a terrible injustice, and there were a couple of occasions
on which I failed. The cases had unlucky concurrences of factors: ambiguous law, single witness identification,
the client’s external constraints on trial strategy, and less than optimal
conduct of police, prosecutors, or judges. In one case there was a plea bargain
that was such a good bargain that pleading guilty was more in the defendant’s
interest even than awaiting trial and being acquitted. All this happened in courts I would rate, for
integrity of prosecutors and ability of judges, as among the fairest in the
country. Even the best criminal justice system will sometimes punish the
innocent. Of that we can be statistically certain.
4. 4. Importance of the Inevitability of Injustice
Is it important, or even interesting, that no state can be
free of injustice? Is it too obvious to
be worth our attention? The instances of injustice I have been talking about
are not flaws in the initial part of the basic structure of the society. They are matters of “partial
compliance theory,” not “full compliance theory,” and so might be said to be of
secondary significance.
I will not dispute obviousness, but will resist any deflating
of the significance of these
observations. There are at least three
reasons that the inevitability of injustices of this sort is worth keeping in
mind. The first is a matter of the simple recognition of the fact that there is
something tragic built into any modern social arrangement. There will be welfare fraud and tax
fraud. Innocent people will be
imprisoned, ruining their lives. (The innocent incarcerated are unlikely to be
impressed by the contention that the injustice to them is only a matter of
secondary significance to political theory.) To pretend that these injustices don’t
exist or will ever disappear is to refuse to face reality. It is good to face
reality.
Second, arguments in favor of policies sometimes make a
peculiar shift midstream from partial to perfect compliance. In justifying criminal punishment it is typically
blithely assumed that all the convicted are indeed guilty. The benefits of incapacitation, or
rehabilitation, or retribution are set out without mention of the innocent
convicted defendant, whom there is no basis to incapacitate, who need no
rehabilitation (and are likely to emerge from prison worse than they entered),
and for whom retribution is a logical contradiction and moral horror. Any argument for a particular type and
severity of criminal punishment must come to terms with the fact that there
will inevitably be false positives.
Third, it is important to recognize the inevitability of
these injustices to be inoculated against “the argument from inevitability.” That argument runs “because evil x has always
been with us and always will be with us, x is natural and we shouldn’t beat our
heads against the wall trying to remedy x.” There will always be welfare fraud
and tax fraud, but that is no reason not to try to minimize both sorts of
fraud. There is, in fact, a very good
reason to minimize each within fairness and efficiency constraints. (We don’t
want to eliminate two genuinely needy welfare recipients from the lists to bar a
single cheat, as we ought not want to keep many qualified voters from the polls
to prevent a single instance of in person vote fraud. See blog of 4/14/16 “Of
Voter Identification, Fraudulent Votes, and Closed-Out Voters.”) Tax fraud we
know could be efficiently diminished in the U.S. (gaining more revenue than it
costs) by simply returning to the old levels of enforcement. (As fiscal
sobriety is no reason to vote against funding the IRS, there must be some other
explanation.)
The stupidity of the
following, I hope, is particularly obvious: “We are never going to have a
system that doesn’t convict anyone wrongly. So it is pointless to require the
taping of police interrogations, or to pay more to public defenders, or to
reduce the case load of judges or to reward prosecutors for something other
than their conviction percentage.”
5. 5. Appendix on the Injustice of Externalized Costs
If you look around, you will turn up many other injustices
that look as if they may well be impossible for a state to remediate fully.
Consider, for example, the externalization of enterprise costs. Modern industry
grew up, flourished, and gave birth to great private fortunes while
externalizing significant costs. The rivers and air of mill towns were, not to
pussyfoot, poisonous. Everyone was exposed to the poisons, and the health
consequences were widespread, but the profits went only to the owners, with
some advantages, of course, to employees and customers. It is likely that the energy-coal industry in
the United States would have a life expectancy of a few months if all its
externalized costs were internalized. It is already on political life support.
In addition to laws and regulations to force the internalization
of costs, a tax could be levied against enterprises for those externalities that
cannot be cost effectively remedied through regulation. Even the most expert
and fairest of taxing authorities, however, will miss altogether or undertax
some externalized costs and will overtax others. So, externalized costs are in
the same boat as welfare cheating, tax fraud, and criminal defendants in
general. Some injustice in the real
world of partial compliance there will always be as enforcement is never
perfect.
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