Patterico's Pontifications

8/30/2019

Patterico Talks to Bob Murphy About Plea Bargains and Anarchy

Filed under: General — Patterico @ 8:00 am



Anarchocapitalist economist Bob Murphy had me on his podcast recently, and the episode just came out. It’s about two hours long. We talk about Murphy’s view of plea bargains as an inherently corrupt enterprise, and about my objections to his vision of a world without a government-run criminal justice system. Listen to the podcast at this link or by simply pressing play below:

As always, I speak for myself and not for my office.

Regular readers know I am a big fan of Bob Murphy. Bob and Tom Woods run a podcast called “Contra Krugman” that dissects the errors of New York Times columnist Paul Krugman every week. I told you about the podcast in this 2015 post which featured this hilarious video which Murphy recorded years ago to taunt Krugman into a debate that never happened:

Murphy is also hilarious as the zombie in the “Interview with a Zombie” video with Tom Woods which I told you about in 2016 and which you can watch here:

As funny as these videos are, you’ll be shocked to learn that comedy is just a side gig for Murphy, whose primary profession is being an economist. He’s a free market economist and a damned good one. He teaches two classes on the History of Economic Thought at Liberty Classroom, where I am a lifetime member. (Become a member yourself, here!) He wrote, with physician Doug McGuff, an excellent book called The Primal Prescription (which I told you about here) which is the best explanation I have seen anywhere of the problems with the health care system in general and ObamaCare in particular. I have also written posts summarizing his book “Choice” (itself a summary of Mises’s Human Action, and yes, I still owe you the last five posts of that series). A collection of Murphy essays about Krugman is a great way to learn about free-market economics. Murphy wrote The Politically Incorrect Guide to Capitalism and The Politically Incorrect Guide to the Great Depression and the New Deal. He has writen study guides for Mises’s Human Action and The Theory of Money and Credit, and for Rothbard’s Man, Economy, and State, so you can get the main points of those tomes without investing the time necessary to read them all the way through. I have read all of this from Murphy and more, and recommend it all.

In other words, I am something of a Bob Murphy stan. So I was thrilled when Bob invited me on the show.

In addition to being a free market economist (in his podcast intro, it sounds like the announcer is calling him a “Communist” rather than an “economist” which is something I tease him about at one point in our discussion) Bob is something of a philosopher who promotes a frankly anarchist view of society. Now I used to think of anarchists as those guys who run around in the streets breaking windows and lighting things on fire, but Bob’s vision is lawlessness without the shattered glass and arson. (Of course it’s my view that vandalism and arson, like other crimes, would be rampant in Bob’s hypothetical society, but that’s not his goal.) In the second part of the podcast, we discuss some questions I had for Bob that were intended to challenge some of the assumptions that underpin his views. So that’s the treat you’ll get if you muddle through this whole thing.

The first part of the podcast is devoted to a discussion about plea bargains. Bob had put out a podcast in May that laid out his view that plea bargains are inherently corrupt, and I wrote him to challenge him in (I hope) a respectful manner. Somehow this led to the invitation for me to appear on his show. Bob says in his intro that he liked the way the discussion turned out, and so do I. As the discussion progressed, I realized that I was getting to explain some things about plea bargains and the criminal justice system that are second nature for me, as a 22-year prosecutor, but that are not necessarily known to the general public.

My approach was not “you and your views are ridiculous” but rather a view that acknowledges that Murphy has some genuine and valid concerns about plea bargains, but claims that those concerns need to be placed in their proper context. I argued that our system is largely peopled by good people trying to do the right thing, and that we have protections in place for defendants that make our system quite different from its portrayal in the media.

It’s not two people yelling at each other, but two people having a discussion. (Indeed, Murphy said at the outset that it would not be a debate, and I think I should explain my joke in response, because it’s kind of an inside joke for Contra Krugman listeners. Bob and Tom Woods recently had a debate on a cruise that they run that grew out of their podcast. The deal was that the loser of the debate would have to shave his beard. All’s I’m saying is, Murphy still has his beard. So that’s the explanation for the beard-shaving reference I made.) If you like people yelling at each other on TV, you won’t like this. If you like a calm discussion between two people with different views who treat each other with respect, you just might enjoy this.

I’ll close this long post with an observation similar to what I closed with on the podcast. I’m a classical liberal in the mold of Ludwig von Mises who believes in limited government. Bob is an anarchocapitalist in the mold of Murray Rothbard who believes in no government. These are different views, but sometimes the two sides seem like the Judean People’s Front and the People’s Front of Judea:

We both believe in far smaller government than that advocated by the crazy Democrats running for President — or that presided over by Donald Trump, for that matter. I’d like to see more collaboration and cooperation between libertarians of Murphy’s type and classical liberals of my type. I hope this conversation serves as an example to show that we can all just get along.

Thanks to Bob for the opportunity.

[Cross-posted at The Jury Talks Back.]

46 Responses to “Patterico Talks to Bob Murphy About Plea Bargains and Anarchy”

  1. Interested in the reaction of anyone who makes it through the whole thing.

    Patterico (115b1f)

  2. Rothbardians irritate me, but I can usually be pretty cordial as long as insults can be avoided. One of my coworkers is on the Rothbardian end of the spectrum and I think we both appreciate the way we get each other to look at issues in a different light than we otherwise would.

    Gryph (08c844)

  3. I’d love to know what you think of the discussion, Gryph. It’s long, but see if you can’t give it at least a few minutes at some point.

    Patterico (115b1f)

  4. 3. I did. It’s pretty typical of the discussions J.D. (my coworker) and I have at work when we can get away with talking politics. When it comes to the big stuff, we tend to mostly agree. The rest is details, procedures, and historical interpretation.

    Gryph (08c844)

  5. “I hope this conversation serves as an example to show that we can all just get along.”

    A worthy endeavor, especially considering the agendas of so many in politics/media is dependent on people not getting along and searching for conflict instead of common ground.

    harkin (58d012)

  6. Just downloaded it.

    thank you for yet more free content. 😀

    Time123 (ae9d89)

  7. Thanks for this, Patrick. The first half is truly interesting and I value your perspective. But while you changed my mind somewhat on the ADA level, I wonder if things are different on the Federal level. There seem to be so many federal process crimes and the field seems so tilted in favor of the often unaccountable Feds that I wonder about the morality of plea deals in that environment. Do you have thoughts about that? I am way outside of the system so that is just an uninformed impression. What I would love to hear is a similar discussion between you and Radley Balko. An equally civil conversation between the two of you would be amazing.

    The second half of the podcast was a bit tedious for me — I lean small-‘l’- libertarian and am boggled by the hardcore theorists. It reminds me of the saying “In theory, there is no difference between theory and practice. In practice, there is.” [I wonder if BM thinks the Neal Stephenson novels Diamond Age and Snow Crash are how-to manuals] I think the real world is always going to be messy and all we can hope to do is try to hold on to our principles while we try to figure things out.

    Anyway thanks as always for your writing.

    Marc (586943)

  8. 5. A worthy endeavor indeed. The problem with holding this up as an example of “getting along” is that Rothbardians and Hayekians at least have it in common that they want less government. Progressives advocate for using government to do violence to their fellow citizens on their behalf. That’s not a very good starting point for political ecumenicism.

    Gryph (08c844)

  9. Seems to me, given the glacial pace of the American judicial system as currently structured, ‘plea bargaining’ is a pragmatic lubricant to keep it moving.

    As to ‘limited gov’t’ vs., ‘no gov’t’ – with the global population heading toward 10 billion, our children or our children’s children will see the necessity to create an Office or Department of Planetary Management. The awareness of the interdependence of commerce, actions and life living within a shell of gas about six miles deep on this small, insignificnt rock is emerging out of the fog and taking root w/t young as the associated problems w/same fester worldwide. Walt was right; it truly is, ‘a small world after all.’

    Planetary Management is a complex challenge, too; a calling for young minds with fresh perspectives to order priorities. And it will better, smarter government- shelving outdated, parochial methods and procedures, not individuals, that will manage it.

    DCSCA (797bc0)

  10. 9. Blame the massive amount of unconstitutional law for that “glacial pace.” If we actually obeyed the constitution — which we are not — that would be sufficient lubricant, I’m sure.

    Gryph (08c844)

  11. R.I.P. Valerie Harper

    TV’s ‘Rhoda Morgenstern.’

    Roll closing credits; fade to black.

    DCSCA (797bc0)

  12. The 22 minute version. It has moving pictures of cowboys and horses and cowboys on horses!

    You do sound like a Chicago Northwest suburb lawyer, Patterico.

    nk (dbc370)

  13. You’ll all appreciate the horse’s first line (yes, the horse talks) at around 3:47.

    nk (dbc370)

  14. I listened to the whole thing. It was civil and helped me understand both points of view, so that was refreshing. With regard to the first half:

    It depressed me to realize how many places seem to build in or allow incentives to exist in their legal systems that make the systems operate unfairly or corruptly. However, “places” don’t do that. People do. Places are only as good as the people who live in, vote in, and run them.

    In addition, it disappointed me to hear Mr. Murphy treat this as solely a theoretical discussion, which to me made it easier for him to disregard your main points — especially the Constitutional protections and processes built into the system. Instead, he was preoccupied with human fallibility as a reason to discredit the legal system, but that is an unavoidable problem in every human system.

    DRJ (15874d)

  15. Better a NW suburban lawyer than that slice of the area ist south of there I call Bad Half of DuPage Co. embodied by the nasally Pate Philip, Dan Proft, Joe Birkett, and Jim Ryan

    urbanleftbehind (d83501)

  16. What I would love to hear is a similar discussion between you and Radley Balko. An equally civil conversation between the two of you would be amazing.

    Unfortunately, I have a low opinion of his forthrightness, so I don’t think it would be productive.

    Patterico (115b1f)

  17. Anarcho-capitalist, though, makes me shake my head. It’s a contradiction in terms, and not a nice one like “sweet sorrow”, but more like “honest thief”. I would even say it is “honest thief”. How can capitalism exist without authority? Which is what anarchy mean: No authority. No boss. It doesn’t make sense.

    Anarcho-libertarian and anarcho-socialist do make sense. People cooperating with each other because it is both in the individual best interest and the group best interest without some boss telling them what to do backed by the threat of violence even if only implied.

    What I think is plutocrat running dogs stole “anarchy” the way their masters steal the blood and sweat of the workers and corrupted it to serve their own soulless, money-grubbing ideology. What is your opinion, comrades?

    nk (dbc370)

  18. I listened to the whole thing. It was an interesting discussion.

    I didn’t know you were originally from Texas, Patterico. Now it all makes sense. You still have that independent spirit, even though you live in California.

    I get what you say about most people in law enforcement. They have a code of ethics and wan to do the right thing, but it varies from office to office, department to department. The most intriguing part of the interview was when you talked about the Dallas DA’s office training attorneys to selectively exclude prospective jurors during voir dire by race or ethnicity. I can see that.

    People don’t understand Texas. Unless they were born and raised here, I mean. My ancestors immigrated to the Independent Republic form Alsace-Lorraine in 1844. When Texas joined the Union by Annexation in 1845, they were overjoyed. But when the Civil War broke out fifteen years later, they were conflicted.

    Texas was just as divided during that war as was the United States, but in reverse. The n ortheast supported the Confederacy, while the southwest supported the Union. My ancestors had fled Europe to escape perpetual war, and they didn’t see the sense of waging war against the Union they had just sworn allegiance to. One of my great-uncles was drafted by the Confederacy to fight in a war he didn’t believe or have any interest in. He surrendered and joined the Union army the first chance he got. He fought in the last battle of the Civil War at Palermo Ranch, after Lee had surrendered at Appomattox.

    Texas has always been divided that way. The northeast is largely white and racist, while the southwest is largely mixed and welcoming. Somehow it all works out, because we all consider ourselves Texans.

    You speak of defense attorneys with respect. What do you think of Racehorse Haynes? He’s only one of the most famous defense attorneys ever. He got his law degree by attending night school at the University of Houston. He started his practice by handing out his card at bars, to defend drunk drivers. But his first major case involved a white cop shooting a black criminal.

    This was a no-win case, so he asked for a change of venue, had the trial transferred to New Braunfels, KKK territory. Seriously, the KKK was still having marches on the streets at the time/ So he stocked the jury with members or sympathizers through voir dire, and the verdict was . . . a white cop shooting a black criminal? . . . not guilty. Of course, Haynes stacked the jury.

    He did the same in his most famous trial, involving T. Cullen Davis. Perhaps you remember that trial; a movie was made of it. Davis was accused of killing his wife and her daughter from a previous marriage Haynes asked for a change of venue, had the trial transferred to Amarillo, where half the population worked for a Davis company. The verdict was . . . not guilty.

    Then when Davis was caught on videotape paying a hit man to kill a district judge who was prsideing over his divorce, Racehorse Haynes said, “I get to buy a bigger boat.”

    Yeah, the verdict was not guilty. How Haynes was able to pull that off is anybody’s guess, but a likely scenario is that he asked for a change of venue to someplace he knew he could stack the jury.

    Is that justice? No, but it is the legal system.

    Gawain's Ghost (b25cd1)

  19. By the way, I don’t know what “min-anarchist” means. That term makes no sense to me.

    I am a libertarian, or a classical liberal if you will. I believe if free people living freely in a free market with an open exchange of ideas, goods, and services.

    But then Utopia is nowhere. Dystopia is everywhere.

    Gawain's Ghost (b25cd1)

  20. Well anarchocapitalism is unfeasable, there have to be institutions, because men are not qngels but when does limited govt metastatize into leviathan, when it does too much.

    Narciso (da72b4)

  21. Whoa, isnt that a broad brush of texas gawain,

    Narciso (da72b4)

  22. There are not infinite resources so there has to be prioritization, however how to make the clsyatem work for the law abiding then the offender.

    Narciso (da72b4)

  23. You assume racist intent about everyone in the east, who is presumably caucasian, one cant have even a moderately laisse affair state under those comditions

    Narciso (da72b4)

  24. Anarchism ultimately means rule by the gun or the knout, in order for society to function? However that is just the personal whim of the ruler.

    Narciso (da72b4)

  25. No discos notion of planetary management is utteerly ludicrous, rhis would be coming from the ones who excused the 21st century culling in the tens of million in moscow and beijing. Who would starve us into subsistemce,

    Narciso (da72b4)

  26. Ein Welt, Ein Reich, Ein Fuhrer! If DCSCA hadn’t been saying it for a while, I’d suspect that he was now making overtures to a certain lady who “does”.

    nk (dbc370)

  27. Disco is an act, but the convergence of zakaria friedman et al along with skydragon acolyte thunberg is real.

    Narciso (66a0fa)

  28. Richard “Racehorse” Haynes also represented Morganna the Kissing Bandit, a stripper with a 60-inch bust, who would run out into the field and steal a kiss from players. This is what Whackoffpedia says about it:

    She also stood trial in Houston, Texas, where her lawyer used what he called the “gravity defense” to explain her unauthorized presence on the field, arguing: “This woman with a 112-pound (51 kg) body and 15-pound (6.8 kg) chest leaned over the rail to see a foul ball. Gravity took its toll, she fell out on the field, and the rest is history.” The judge laughed and dismissed the case.[17]

    nk (dbc370)

  29. Wikipedia on the second Davis trial

    The case largely hinged on a tape-recorded conversation between Davis and David McCrory, an undercover employee posing as a hitman for hire which was recorded in the parking lot of the Denny’s restaurant where Davis was arrested. In the recording, Davis was alleged to have asked the undercover employee to murder his wife and the judge. The trial of Texas v. Cullen T. Davis was one of the first uses of forensic discourse analysis on tape-recorded evidence in a legal setting in the United States.[8]

    A discourse analyst testified that Davis’ words in the tape did not constitute solicitation of murder. Haynes again defended Davis. He again attacked the prosecution’s physical evidence: Davis’s fingerprints were not found on critical pieces of evidence, such as the cash he allegedly paid to the McCrory.[6] Unlike the first trial, Davis testified in his own defense. He stated that he had not solicited McCrory’s offer to kill Priscilla and the judge, and claimed it was a plot orchestrated by her to frame him. Davis claimed he merely played along with the plot in an attempt to eventually convince McCrory to admit that Priscilla was to blame for the entire scheme.[6]

    Unlike the first trial where observers were convinced that Davis would likely be acquitted, opinion was split in the second trial with the general consensus being that Davis’s best hope was a hung jury.[6] After a lengthy trial Davis was acquitted a second time.[6]

    Due to the prominence of the case, in 2015 Tarrant County authorities chose to keep the paper court documents of the case as historical documents even though they have been digitized.[9]

    The implication of the last paragraph is that the trial took place in Fort Worth, so no change of venue.

    Kishnevi (22ac03)

  30. Yeah, Haynes was no fixer. He was a very, very, very good lawyer. And fearless. Who dares, wins. And Tim Curry, the Tarrant County District Attorney, was no slouch to let his juries be stacked.

    nk (dbc370)

  31. However, a change of venue does not need to be geographic. Chicago recently had a highly-publicized and politicized case of a white cop shooting a black yute. The trial was held in Chicago. The judge and jury were imported from neighboring Kane county.

    nk (dbc370)

  32. How similar are anarcho-capitalists to libertarians? They sound similar to me but there must be differences. Both seem susceptible to the worst aspects of tribalism.

    DRJ (15874d)

  33. Nice discussion. Very interesting.

    rcocean (1a839e)

  34. How similar are anarcho-capitalists to libertarians?

    The libertarian wants a pot party with “ladies of negotiable affection” without fear of the law. The anarcho-capitalist wants to be free to bring the pot and the women over the border to him for a price without fear of the law … or a border for that matter.

    nk (dbc370)

  35. One recognizes borders and the other doesn’t? That is a subtle difference.

    DRJ (15874d)

  36. No. One has a “freedom to do anything I want as long as it does not harm others” motive (the libertarian). The other has a “freedom to make a profit any way I can without government getting in my way” motive (the anarcho-capitalist). Which is why I said above that the term is nonsensical. They’re just capitalists chafing at governments which prevent them from making money any way they can.

    nk (dbc370)

  37. @25. Ludicrous? No more ludicrous in 2015 to expect Trump would actually win in 2016; no more ‘ludicrous’ than the thought of women getting the vote to people 175 years ago; or a ‘black’ ever elected president— or a man walking on the moon. It’s foolish to be so quick to dismiss; we’ll be gone– and not our mess to clean up.

    @26. She’s just one voice echoing one of those emerging ‘symptoms’ becoming mainstreamed out of that fog. And it won’t be our problem to manage long term anyway- we’ll be gone.

    @27. An act? You’re confused; Trump is the act– so do enjoy the show.

    DCSCA (797bc0)

  38. Has there been a classical liberal party elected anywhere since the liberal collapsed around 1920, or the french radicals around the same time.

    Narciso (66a0fa)

  39. DC, your boy just boxed himself in…can we move that up to February 2020?

    http://news.yahoo.com/biden-says-prefer-woman-person-171133982.html

    urbanleftbehind (d01544)

  40. @39. ROFLMAO! February– too funny! He should at least get a good husking from Iowa first, eh?!

    The staff likely has internal polling suggesting yet another weak spot. Add this to it- in that NR piece he’s quoted as actually suggested the job was ‘too big’ for ‘one man’ — implies poor management skills– and echoes a lament heard 40 years ago challenged by Reagan- and he won.

    That ‘Sinatra pose’ pix won’t help either– he’s dead, too. 😉

    DCSCA (797bc0)

  41. My guess is libertarians put their faith in individual freedoms while anarcho-capitalists believe in the power of capitalism. They seem intertwined to me.

    DRJ (15874d)

  42. 41. I’ve been called libertarian, but I take a very Lockean view of government; that is to say, man in his natural state gravitates towards establishing governments because if we didn’t, we’d spend most of our waking lives having to protect ourselves in veritable jungles of chaos.

    Gryph (08c844)

  43. Patterico, I’ll be honest, I have a few minutes left in the pod cast. I’m going to finish it, but I also have time to post a comment. So, if what I have to say addressed in the last 15 minutes please I apologize.

    1. Your spoken voice is far more humorous, and wry, than your written voice comes across to me. I’m convinced based on this that I’ve been misreading you as slightly bitter when in reality you were probably exasperated and joking.

    2. I wish the concept of jail house snitch had been addressed.

    3. I wish there had been a discussion of how the protections against someone confessing when they were innocent are far more available to the rich and educated than the poor and uneducated.

    4. I loved the respect both of you showed each other and effort you both put into trying to fairly address the others points. Good faith was very present.

    5. I wish he’d had the background and preparation to push into more cases where the prosecutor wasn’t acting in good faith. Up thread someone brought up Balko. I’ve been around long enough to understand that you and he are unlikely to do a podcast. But someone with his depth might have added a lot to the discussion.

    His idea of private justice was sadly ill thought out. A thought experiment where the world has always been a functional anarchy is fine, but also pointless unless it informs the world we actually live in.

    two aspects in particular that bother me.

    I’m especially annoyed that no one brought up the retributive aspect of the justice system. If someone is harmed in our society they trust the state to enact justice. Not just rehabilitate, and protect but to balance the scales. If people don’t have faith that the justice system will do that they tend to do that for themselves. Your example of the gangster who committed a triple murder would, in this proposal, likely result in retaliation killing. Which would results in similar violence etc. The lack of a functional justice system in parts of the less developed world is why we get news stories of someones younger sister being given away as part of the penalty for a killing. The fact that it’s horrible is part of the point.

    I have to ask, in your work on gang related crimes, have you observed this? I imagine that gangs can’t or don’t avail themselves of the justice system.

    The other aspect is the extent to which wealth would allow people to escape consequences in this system. Yes it might cost them money but they have lots of money. You piss off Bezos or Trump Jr.? They kill you, pay the fine, and go on about their day.

    Combine the two together and I don’ see this system working very well. Seems like it would lead to a brutal, deeply tribal society. Which is what we tend to see in the examples of Anarchy around us (Somalia and gang controlled parts of our inner cities)

    Thoughts?

    I should be able to finish the podcast soon. Again, i’m sorry if these points are raised at the end.

    time123 (d54166)

  44. One last comment, early on in the podcast you made the point that a prosecutor only ever asks a witness to tell the truth. It doesn’t happen that a prosecutor will tell them what to say.

    -this seemed disingenuous. Unless both the potential witness and their lawyer are idiots they have a good idea what the state wants them to say. You point about using them to gather more supporting evidence was much stronger.

    time123 (d54166)

  45. Unless the lawyer (any lawyer) is an idiot, he does not put a witness on the stand unless he knows exactly what the witness will say. Or at least not say — some witnesses just cannot be “prepped”, they will tell their story their way no matter what. I dunno if you watched the George Zimmerman trial, but the young black woman who testified about being on the phone with Trayvon Martin just before he was shot was a good example of that.

    nk (dbc370)

  46. One last comment, early on in the podcast you made the point that a prosecutor only ever asks a witness to tell the truth. It doesn’t happen that a prosecutor will tell them what to say.

    -this seemed disingenuous. Unless both the potential witness and their lawyer are idiots they have a good idea what the state wants them to say.

    It’s not disingenuous.

    Patterico (115b1f)


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