Adjudication (Part 2: Trials)
TLDR: Speed, accuracy, and court cost are all important factors for justice. Incapacitation of criminals is the main goal. Executions are bad for multiple reasons. Those found not-guilty should be automatically entitled to compensation, to align incentives. Futarchy makes Utopian justice efficient and transparent.
Prerequisites: Part 1, Futarchy
“Due process” has been a major topic of discourse in recent months, mostly because the Trump administration has been heavily disregarding it as part of the crusade against illegal immigrants. The point of having a clear and fair process for deciding who is guilty is that, in the absence of such a process, innocent people — who have done nothing wrong and have never been judged in court — will be imprisoned and suffer.
Unfortunately, absence of due process isn’t the only way in which innocent people who have never been convicted of a crime end up behind bars. At the time of writing, I estimate that the United States has at least 100,000 of these innocents locked up — roughly 5% of the entire incarcerated population.1
The issue here is that when someone is arrested and put in jail, they can be held for months before they’re found not-guilty by the court.2 These people may have done nothing wrong. But due to bad luck, they find themselves suffering a major, unjust consequence at the hands of those meant to bring justice.
On one hand, if the justice system is fast and reckless, innocent people will be imprisoned and the guilty will go free. On the other hand, if the justice system is slow and methodical, innocent people will languish in jail (and the process will be more costly). What is needed is a way to produce accurate and speedy justice.
Plea Bargains?
Do plea bargains help? Trials are expensive and slow. If someone pleads guilty, this frees up the court to focus on getting innocent people cleared and back to their lives. In many cases a criminal knows they’ll be found guilty. Why not make a win-win deal to go slightly easier on them in exchange for helping the system operate efficiently?
In the United States, over 90% of criminal cases are resolved through plea bargains. The system that’s set up right now is not designed to be able to handle more, making bargaining not just a convenient option, but a necessary practice. If we decided to end plea bargaining, as a society, we could, after some adjustment period, presumably hire lawyers, judges, clerks, etc. until our courts had the capacity to handle it.3 But my guess is that this would cost more than three hundred billion dollars per year4 (~$900 per capita; close to half of the total cost of the armed forces). This isn’t an impossible ask, but it would clearly add a large tax burden.
And yet… maybe this cost would be worth it. While a system that is overburdened can speed things along by having people plea out, a system that is well-funded can’t actually be made faster for innocents by having some people plead guilty. And, importantly, plea bargains have a lot of downsides.
Overly-harsh sentences — The typical incentive for a defendant to take a plea bargain is reduced sentencing, but this sets up a perverse incentive for the government to threaten punishments that don’t fit the crime so that prosecutors can get more leverage and make more deals.
False confessions — Someone who is unlucky enough to be charged with a crime they didn’t commit might expect to be found guilty at trial, or might expect that even if they’re found innocent, they’ll be ruined by legal fees. Even if such people benefit from taking plea bargains, the deal is done at the cost of justice and their honor, casting further doubt on all others who confess.
Corruption and bias — Giving prosecutors broad leeway to make back-room deals with potential criminals reduces transparency and produces opportunities for bribery and other corrupt relationships to fester. Even well-intentioned people can end up perverting justice by letting prejudices color their deal-making.
Plea bargaining has its merits, but it ultimately fails to solve the speed-vs-accuracy dilemma, merely papering over it at the cost of justice itself. Though it helps keep costs down, it forces an impossible choice on defendants and grants prosecutors dangerous, opaque powers. We must do better. We need a system that surfaces the truth efficiently and transparently. And to build that system, we must first be clear about what we want our punishments to achieve.
The Aims of Sentencing
Justice serves many purposes. The top five (in no particular order) are probably:
Retribution — Harming wrongdoers as an end in itself.5
Deterrence — Preventing crime by giving it a negative expected value.
Rehabilitation — Helping criminals find a better path, and re-integrating into society in good ways.
Reparation — Compensating those harmed by unlawful action.
Incapacitation — Physically preventing criminals from committing more crimes.
These goals can be in tension with each other; retribution and rehabilitation are famously at odds in most situations. Which of them should society, ideally, be focused on? I claim it is incapacitation, primarily implemented through removing criminals from society for long periods of time (a.k.a. imprisonment).
Retribution is controversial, and naturally cruel. Imprisonment (and the shame of being convicted) should be harsh enough. Torture for the sake of torture is corrosive to the spirit of compassion and mercy that a good society should foster.
Deterrence is good, but hard to pull off, especially for major crimes. The main reason that most people don’t commit crimes is not because of fear of punishment, but instead because they have a conscience and want to adhere to norms. (Consider the vast number of people who behave lawfully even when it’s obvious they won’t be caught.) Criminals, then, tend to be people who are some combination of desperate and psychologically abnormal, and it turns out that it’s pretty hard to deter such people using hypothetical long-term consequences.6
Rehabilitation is good, but also controversial and not universally applicable. Some programs show good returns on investment, especially for first-time offenders and youths. Heavily investing in helping those who make a big mistake avoid having their lives fall apart due to prison, and ideally finding a better life path, seems wise. Many people, however, are probably beyond reach, or are otherwise unlikely to be an efficient use of social resources for various reasons.7
Reparation is good, but not always possible. Often, the damage done cannot really be undone, and monetary compensation only goes so far. Additionally, criminals are usually poor, making it difficult to extract enough wealth from them to serve as genuine compensation. (And such extraction will leave them poorer and naturally more desperate in the future.)
But incapacitation just works. The majority of crimes are committed by a tiny fraction of the population, usually repeat-offenders, and both first-principles and empirical studies both show that removing these people from society is an effective way to fight crime. Scott Alexander’s analysis estimates that on the American margin, each year of prison prevents approximately 6 property crimes and 1 violent crime, almost entirely due to incapacitation.8
Imprisonment is also a relatively fair way to punish people, compared to options like fees or torture, since people have different levels of wealth and pain sensitivity, but everyone gets roughly the same number of hours in the day.9 Furthermore, if a punishment is framed in terms of time in prison, we can deduct time spent in jail from the duration of punishment. This doesn’t solve the issue of inadvertently locking up innocents, but it might ease the pressure to get a quick trial for those who are clearly guilty.
When Must We Kill Them?
Imprisonment is not the only way to incapacitate people. In some sense, the most effective means of incapacitation is execution. It’s hard to commit crimes if you’re dead.
But at what cost? Let's start with the financial expense. Common estimates for those sentenced to death indicate that it can cost millions of dollars more than life in prison without parole! If it’s cheaper to keep people locked up than it is to kill them, why would we execute anyone?10
Perhaps because it’s excruciatingly painful, and thus serves as a catharsis for those seeking retribution? Opponents of the death penalty often highlight cases of executions that do, indeed, sound excruciating. But a closer look shows that these horror stories often assume suffering without good evidence, or come from botched executions, where one or more things went wrong. The standard method of execution is “lethal injection” — usually an application of a sedative, followed by a paralytic, and then by a high dose of potassium to stop the heart. In theory, the sedative renders the person unconscious, and they never feel a thing when they die.
Very frustratingly, scientists basically haven’t checked this. The only time that I am aware of where brain data was tracked during an American execution was in the execution of Willie Brown Jr. in North Carolina in 2006. During Brown’s execution, he was wired to a Bispectral Index (BIS) EEG monitor. Once he fell below the threshold for unconsciousness he was given the paralytic and heart-stopping injections. Court filings say the monitor never rose above the threshold, but the underlying data was sealed under a court order and has never been released to the public. No state has tried since, probably because of fears around being sued for “cruel and unusual punishment” and/or difficulty in finding a medical professional willing to risk losing their license. With the pro-execution crowd fearing legal trouble and the anti-execution crowd fearing data that clearly shows an absence of pain, all we are left to go on are guesses.
Still, it seems highly likely that, when properly administered, a lethal injection is close to painless. We can infer this by comparison with animal euthanasia, which is far less stigmatized. EEG-based scanning methods indicate that a heavy dose of barbiturates or other sedatives can put large animals to sleep and keep them under, even while their heart stops.
Euthanasia, in short, is a humane method of execution. So it really can't be the case that we kill people because it’s a painful retribution. Some may feel that it’s a fitting punishment for murderers, but I would argue that if retribution is the true goal, years of solitary confinement is far worse than being put to sleep. And it would be cheaper.
But wait. That can't be right, can it? Why is it so expensive to execute someone? Putting animals down certainly doesn’t cost millions of dollars. The Chinese manage to execute people by lethal injection for less than $100!
Indeed, the “high cost” of execution in the USA has almost nothing to do with the intrinsic costs of killing someone, and far more to do with the bureaucracy surrounding death row. Over three fourths of the added cost is from additional legal fees and court costs, including appeals at various levels. Most of the rest is from the additional needs for death-row housing, which holds the average person sentenced to death for over 20 years. If we, as a society, decided to execute people without all the delay and extra effort, it would be far cheaper than incarceration.
But all of that bureaucracy is there for a reason. Consider that since DNA testing became available in capital cases in the early 1990s, at least 34 death-row prisoners in the United States have been exonerated by DNA evidence. That is 17% of the 200 total death-row exonerations on record, and it works out to roughly one DNA-based exoneration for every forty-odd executions carried out in the same period. Overall — counting every kind of evidence — about one death-row exoneration occurs for every eight executions, and statistical modelling puts the underlying error rate at a minimum of 4% of all death sentences. We spend so much more effort because death is permanent, and most people find it barbaric to kill people only to later decide they didn't deserve that fate.
This is a good enough reason, for me, to believe that the death penalty is a bad strategy. But I also think it's worth rejecting on more symbolic grounds.
Civilization is the collective effort to put aside violence as a way of resolving conflict, and to instead turn towards laws and principles that guide us towards virtue. One of the most central and universal laws is the prohibition of murder. Similarly, one of the most important virtues is extending and protecting life. When we decide to collectively kill someone — even a heinous criminal — we are eroding the injunction against murder. We are implicitly saying “killing people is good as long as enough people are for it.”
It's this same principle that leads me to reject forcing prisoners to work, or to perform any act against their will. We have a word for this: slavery. Just as I am against murder, I am against slavery, regardless of whether the government is involved and who is being enslaved.
Imprisonment, by contrast, can maintain the ethical high-ground. If we see prisons not as a place that a criminal must go, but rather as the only place that the criminal is permitted to go, then imprisonment is merely an extension of the right to prevent trespassing. It becomes an “exile” to the only country that will accept them, rather than a violation of their rights to bodily autonomy.11
Utopian Adjudication
In Utopia, when someone is arrested for a (universal) crime, two prediction markets are created and they’re immediately informed of what crime they are being accused. One of these markets asks whether the accused will be found guilty, while the other asks: “Conditional on the judge reaching a verdict, how many days of imprisonment will the sentence be?”
These markets are attached to a public12 court case containing the relevant evidence and other data surrounding the arrest. Journalists (without conflict of interest) are required to be able to shadow prosecutors, making it difficult to suppress evidence or ruin the market with insider trading.13 Indeed, because of incentives that we’ll explore in a moment, law enforcement is heavily pressured to submit all information relevant to the case as soon as possible. (The defense can also submit information, as can relevant third parties such as victims or witnesses.)
The accused is then given a hefty chunk of free liquidity (e.g. ~$5000 of shares) which they can and must spend on the guilt market before open trading begins.14 Their opening position serves as something like a “plea,” albeit without some of the baggage. Someone who bets that they’ll be found guilty, for instance, might simply be saying “I don’t trust the system to realize I’m innocent.” If the accused bets that they’ll be found guilty, however, it’s rare for others to disagree, and the guilt market will usually converge to an extreme “guilty” position.
These prediction markets aren’t just for speculators — they let law enforcement quickly learn whether they have the right person and whether this case is a priority for being heard by a judge.
When the chance of “guilty” is consistently high (i.e. the vast majority of the money in the market is betting on guilty and there’s low volatility), the accused is moved to a long-term prison. Time spent incarcerated is treated as part of the sentence regardless of whether it’s before or after a judge looks at the case, meaning that if it takes 20 years for a judge to examine a case, but then the judge sentences the accused to 25 years in prison, they’ll only be kept for 5 more years. When a person’s case has been pending for longer than the expected sentence on the conditional market, they are typically released and treated as having served their time, with their case marked as closed. In this way, most people accused of a crime in Utopia never have their cases heard by a judge at all — market traders (often including the accused) are so confident in predicting a guilty verdict that the person simply sits in prison for a while and is then released when they’ve served the expected sentence.
For those cases that do reach a judge and result in a guilty verdict, a new prediction market is immediately created asking whether the verdict will be overturned if reviewed. These post-judgment markets serve as Utopia's version of an appeals system. However, due to a strong culture of judicial precedent and deference, these markets typically see minimal trading activity and usually predict that the verdict will stand. The exception occurs when traders identify clear judicial error or when genuinely new evidence emerges — in such cases, significant money flows into betting on reversal, triggering judicial review. This market-based threshold ensures that judges aren't overwhelmed with frivolous appeals while remaining responsive to cases where new evidence comes to light.
When the police and prosecution are clearly wrong, and market traders confidently predict a “not guilty” verdict, cases are often quickly dropped with profuse apologies. Why? Because in Utopia, those found not guilty are immediately and automatically entitled to compensation commensurate to the damages inflicted on them by law enforcement. For instance, if a doctor is wrongfully accused of assault and then serves three years in prison before being found not guilty, they’d be entitled to three years of lost earnings, plus the reputational damage from the wrongful arrest, plus the basic inconvenience and emotional damages from being imprisoned. Not-guilty findings are thus extremely costly for the government, and an immense amount of pressure is put on prosecutors and police to avoid arresting innocent people, especially for long periods of time. It is typical for prosecutors to make deals with those who face decent odds of being found not guilty to drop their case with a public apology in exchange for the accused waiving some or all of their compensation. Even when someone wants compensation and won’t agree to such a deal, they’re usually released, just to limit the damages.
Only when things aren’t clear — when some group of traders sees guilt and another comparable group sees innocence — is it truly vital that judgment be reached. The cases that judges actually hear are selected pseudo-randomly in a way that simultaneously prioritizes cases where there is a reasonable chance of innocence and a lot of money has been invested.15 Money may not be the best metric for which cases are important, but it’s one that keeps people honest. Utopia has professional speculators who search for cases that are weaker than their market probabilities make them seem, and invest in non-guilty verdicts not out of a particular sense of altruism, but rather because they think betting on such people is a good investment. Defendants who can expect significant compensation if they’re found not-guilty (e.g. those who have been in prison for a long time) will sometimes offer a fraction of their damages as a prize to people who bet on them in the guilt market in order to attract such speculators.
To reduce risk of having to pay large compensations, law enforcement usually doesn’t keep people in jail while they’re awaiting trial unless they’re judged by the prosecution to be likely to commit more crimes or flee into hiding. For instance, in most contract disputes, the accused party is never imprisoned. This lack of prison still holds even when someone is found guilty. All sentences are framed in terms of time in prison, but the government allows most criminals to pay off their time in a way that scales with the financial resources of the criminal, so they remain a fair and significant punishment. This helps keep members of society productive and reduces the financial burden of maintaining prisons. Repeat offenders and those otherwise believed to be an immediate threat are the major exception, where the need for incapacitation leads the justice system to keep them imprisoned without ability to buy freedom. In borderline cases, where the state is unsure of the danger, surveillance devices like ankle monitors are occasionally offered as a (voluntary) compromise.
Because all crimes are punished in a homogenous way, the distinction between “murder” and “manslaughter” or other criminal ontologies isn’t considered important in Utopia. Judges simply inflict longer sentences on those who are more egregiously at fault, or who are a higher risk to society. The distribution of sentence lengths (both given by judges and by the markets that emulate the judges) tends to be bi-modal, with short sentences for those who are at a low risk of re-offending,16 and long sentences for those who show consistent criminal behavior, even if that behavior is as mundane as shoplifting or violating contracts.
Utopia doesn’t really have a notion of “lawyer” as a profession. There are law-experts, of course, who teach in schools, write books, serve as prosecutors, and occasionally become judges. But many times those working on a case in law enforcement or helping someone who’s been accused are professionals with no particular expertise in law, and instead are good at tasks like collecting relevant testimony and evidence into a convincing narrative. It is up to the judge (and somewhat to wardens) to evaluate whether the information they’re getting is pertinent and high-quality. In practice, most of those who decide someone’s fate are the many speculators across the world, each trying to find an edge in the marketplace of justice.
Pretrial detainees in the US ≈ 400,000 (mostly people who are too poor to afford bail)
(This may be an underestimate, since I’m not sure if they’re counting people who are currently being tried, and trials can be lengthy. Unsure.)
Roughly half of detainees either plead guilty or are found guilty.
And I cut it in half again out of general conservatism and an understanding that not all people who aren't found guilty are actually not guilty.
People admitted to jails spend an average of a month in custody, but this has a heavy tail, and many people charged with serious crimes, such as murder, are forced to wait over a year before their trial reaches a verdict. (Section 5, here.)
We could also keep things at the same scale, and simply choose not prosecute a huge number of cases. Even though this could keep budgets balanced, I want to emphasize that this doesn’t really engage with the costs of eliminating plea bargaining; if we dramatically scaled back the threshold for which cases are worth prosecuting but kept plea bargaining, there’d be a huge budget surplus.
The vast majority of cases in the USA are handled by state courts. In 2021 there were 2.9 million incoming felony cases reported. Not all of these result in plea-bargains, but basically everyone agrees it’s at least 70%. It’s hard to say exactly how much a plea bargain saves, since cases are highly heterogeneous and outliers weigh heavily, but the one good study I was able to find estimates about $66,000 in savings in 1991, or ~$155,000 in 2024 dollars. If we round the price down to $1e5 and the cases up to 3e6, we get an estimate of $3e11. I wouldn’t be surprised if it was a little lower or a lot higher.
We can argue about what evolutionary or environmental calculus led to some people being vindictive, but the simple fact is that some people just want criminals to suffer.
Marginal resources spent trying to increase deterrence are usually best spent on police, rather than on increasing severity of punishment. Increasing the chance of being caught quickly tends to have an outsized impact on potential criminals, who are often focused on the short-term, rather than thinking about potential costs spread out over decades.
My argument is not that rehabilitation efforts on these people are useless, but rather that they are usually not the most cost effective way to benefit society. Situations vary widely from prisoner to prisoner, and I firmly believe in giving people second chances and unconditional support, but it’s also important to be skeptical and actually check whether an intervention is the best way to be spending money. I’ll revisit rehabilitation in more depth if/when I get around to writing about prisons.
Scott ends his essay with a note that while increasing the length of prison sentences and the number of imprisoned people can successfully reduce crime rates, it is not the most efficient way to do so. In America I agree; we almost certainly over-invest in prisons and under-invest in police. That being said, incapacitation is the foundation for how police are able to reduce crime. If police arrests can’t result in criminals staying behind bars, I suspect that the calculus flips, and marginal increases in imprisonment are the most efficient way to decrease crime rates. My uninformed guess is that some parts of Europe are like this.
Perhaps the best known proponent of corporal punishment is Peter Moskos, who wrote In Defense of Flogging in 2011. While I haven’t read the book, my investigation into the possibility does not suggest that flogging/lashing/corporal punishment/torture is a good method of punishment. From what I can tell, his main argument is that prison is already cruel and ineffective at rehabilitation, so why not switch out one cruel and ineffective method for another? The answer is simple: corporal punishment doesn’t incapacitate. Hardened criminals with a high tolerance to pain might even bear their scars as a symbol of their toughness. The primary advantage to flogging is that it doesn’t cost much, and gets the convict back into society where they might earn an income instead of being a burden on the state. I agree that some criminals should be allowed back into society, for multiple reasons, but a heavy fine (perhaps with a payment plan) seems like an even more cost-effective way to do so.
Some countries, such as Singapore, Malaysia, Nigeria, and Iran, practice corporal punishment, sometimes (as in the case of Nigeria and Iran) as a substitute for incarceration. Unfortunately, I wasn’t able to find any good studies indicating whether it was an effective punishment, or how those who get the cane fare in things like recidivism compared with those who aren’t beaten. On priors, my guess is that it is generally ineffective; certainty of facing punishment generally has the most impact on deterrence/recidivism; children who are beaten for misbehavior do not show better long-term behavior than those who aren’t, and physical punishment can produce worse outcomes by producing trauma.
To be clear, I’m not talking about whether prisoners (or other people) should be allowed to commit suicide, or take other dramatic actions. I’m generally in favor of allowing people to, with sufficient sanity and consideration, to do whatever they want to their own bodies, including taking their own lives. But that’s beyond the scope of this essay.
While I generally like the frame of “protecting the fundamental rights of prisoners,” I think it’s easy to get carried away with absolutism when thinking about rights. For instance, I think it’s important to protect and respect people’s property, but I also think it’s fair in many cases to confiscate wealth from someone who violates a contract. A balance between idealism and pragmatism must be struck.
Criminal prediction markets and cases probably aren’t open to everyone — there is sensitive information that could be disturbing to some. Furthermore, some degree of identity verification is needed to identify manipulation and ensure no insider trading by the judge’s family, witnesses, et cetera. Still, the intention here is to be quite public.
I am generally in favor of allowing insider trading, and that remains true here. The issue is not so much the presence of insiders within the justice system (and indeed, they are allowed to bet on the markets), but rather that they can withhold critical information that’s relevant to the case. The role of the journalists is, in a way, to make everyone an insider.
Judges are, of course, unable to see markets, due to their seclusion, much less bet on them. Wardens are similarly prohibited from having financial stake, due to the conflict of interest, with extreme penalties for those who abuse their power.
The prosecution gets to set the initial market price. If the accused actively refuses to offer a position within 24 hours of arrest, they forfeit these free shares.
A simple algorithm that comes to mind assigns a weight to each case equal to the total expected value of the “not guilty” shares on the market, then select randomly according to share of total weight.
As an example, suppose there are five open cases:
A — 4:1 odds of guilt | $0 total of non-guilty shares | 0.2 * 0 = 0 weight
B — 9:1 | 50 | 0.1 * 50 = 5
C — 1:1 | 10 | 0.5 * 10 = 5
D — 99:1 | 2500 | 0.01 * 2500 = 25
E — 1:3 | 20 | 0.75 * 20 = 15
TOTAL WEIGHT = 50
The probabilities that these cases are selected when a judge has an opening are thus:
A — 0%
B — 10%
C — 10%
D — 50%
E — 30%
And again, people who are at low risk of re-offending are usually offered the opportunity to pay fines that scale based on wealth, instead of being imprisoned, even if their crime was severe. For example, father who enacts harsh vigilante justice on someone who harmed his child may be able to avoid any prison, if he gives up his life’s savings.
Would there be a social reintegration program for people who have been in prison for a while?
The idea of punishment is incompatible with the idea of justice. There are three parties:
a) justice is served to the wrongdoer by redress
b) justice is served to a victim by restitution
c) justice is served to society by rehabilitation
There is no room for retribution or revenge in justice.
In any case, justice is typically impossible, which is why fairness, before harm is done, is necessary and justice is insufficient.