The Justice of Bukele?

Yes, it's complicated!

Nayib Bukele just got re-elected, and the reason is no mystery. Since he assumed power in 2019, El Salvador has gone from a murder rate of 36 per 100,000 to 2.4 per 100,000. Granted, when Bukele took office, the Salvadoran murder rate was already in steep decline. Still, going from the most murderous country in the world in 2015 to the second-least-murderous country in the Americas in 2023 is an absolute miracle.

A absolute miracle achieved by indefinitely jailing over 70,000 on mere suspicion.

El Salvador used to have a 24-month limit on criminal proceedings; now there’s apparently none. So the government could hold you without trial forever. And if you ever do get your day in court, expect a mass trial of up to 900 defendants.

What should we think about this situation? Bukele’s defenders normally appeal to a pure utilitarian calculus. Suppose that in the absence of his draconian crackdown, the Salvadoran murder rate would have stayed at the 2019 level. If so, Bukele’s new policies are saving over 2,000 lives per year. If the typical inmate ends up serving 50 years in jail, that means that he’s ruining 70,000 lives to save 100,000. Adding the deadweight costs of crime for economic productivity and quality of life onto the ledger just strengthens the pro-Bukele case. Richard Hanania simplifies the math with an appeal to the veil of ignorance:

[W]hen Bukele took power, El Salvador had a murder rate equivalent to that of Detroit, while now it’s in the ballpark of the US average. We can therefore put the question like this: would you take a 1 in 200 chance of being innocently locked up in order to go from living in a random neighborhood in Detroit to living in an American city with a crime rate close to the national average?

I would take this tradeoff without thinking twice. Consider that living in Detroit would not only mean a higher chance of getting killed, but also that you probably can’t start a business in your local community, and you have to worry about your kids playing outside.

The obvious objection is that utilitarianism is a ridiculous moral philosophy. That’s definitely my view. But that just restarts the analysis. What should you conclude if you’re a moral pluralist who knows that maximizing utility isn’t everything?

Notice that Hanania already strays from classical utilitarianism by focusing on the well-being of innocent humans rather than all humans. Which is a reasonable modification of the original theory. Indeed, retributivism holds that punishing the guilty is, within limits, a positive good.

Which brings us to the question, “What’s so great about trials, anyway?” Many people talk as if the most monstrous mass murderer morally deserves a trial. It’s a standard trope of police fiction: Even if you catch a murderer in flagrante delicto, police should risk lives — their own and bystanders’ — to capture him alive. A puzzling position. A guy blatantly snuffs out a bunch of innocent lives, which earns him… the inalienable right to a formal legal procedure?! (The extra-absurd variant insists that, “The vigilante is even more dangerous than the mass murderer”).

The reasonable case for trials, instead, is epistemic. If you don’t really know if the accused is guilty, a well-structured trial is a good way to find out. Bias prevails? Fine, let the verdict be decided by a judge or jury with no dog in the fight. People with no dog in the fight don’t know much? Fine, let both sides tell the judge or jury their side of the story at length so they can make a thoughtful decision.

Common sense tells us two truths about this epistemic case for trials.

1. Trials are better than nothing.

2. Trials are less than 100% accurate. Every system releases some guilty defendants and imprisons some innocent ones.

If “Don’t punish the innocent” were your absolute principle, this would imply that trials are useless because you would have to acquit everyone. Which is why almost everyone ultimately accepts a probability cutoff below 100%.

(Many, if not most, observers bolster their moral self-confidence by covertly reflecting, “P.R. aside, the probability cutoff that morally matters isn’t the probability that he committed the crime of which he is accused, but the probability that he’s committed any crimes meriting his punishment.”)

To see the connection with Bukele’s draconian policies, ask yourself one question: What is the morally correct probability cutoff for life imprisonment?

At least for violent crimes, you probably think that First World criminal justice systems are comfortably above this cutoff. Though truth be told, I bet you have nothing better than guesswork to justify that conclusion. I’ve read a hundred-odd papers in criminology, and I’m basically in the same boat.

As long as you grant that First World criminal justice is above the bar, here’s the next question: Is Bukele’s draconian system actually markedly less accurate than the criminal justice systems you consider satisfactory?

After all, Bukele’s not arresting people at random. He’s intensely profiling guys with gang tattoos. Which leads to the oddly specific yet philosophically critical question: In modern El Salvador, does simply having gang tattoos put you over the morally correct probability cutoff for life imprisonment?

Isn’t this tantamount to “punishing tattoos with life imprisonment”? Of course not. You’re punishing people for having a high probability of committing a heinous crime — and using all available information to ascertain that probability. Which includes looking at their tattoos. You could just as easily say that you’re “punishing story-telling with life imprisonment” because you treat confessions as strong evidence.

So is Bukele’s system morally acceptable? My honest yet reluctant answer is: Probably, for now. I’d be amazed if less than 90% of the guys with gang tattoos weren’t violent criminals. Especially because I embrace the law of criminal conspiracy, which treats you as a violent criminal for voluntarily joining a team of violent criminals.*

Why “for now”? Because most political systems that imprison serious criminals for a long time without trial eventually start imprisoning lots of innocents, too. Bukele is only 42 years old. He could easily rule for another eight terms. That’s 40 more years — ample time for the corruption of power to work its evil magic.

If I were living in El Salvador, I’d be feeling a lot better today than I did in 2019. But I’d still fear the long-run dangers. Should I even be writing this piece? As a Salvadoran, there’s got to be a 2% chance it would eventually land me in jail with all those terrifying men in tattoos. As a potential tourist, though, I’m sorely tempted to visit El Salvador soon while the honeymoon lasts.

El Salvador’s Tazumal

* The best remaining objection is that Bukele could reduce violent crime almost as much with markedly less draconian methods. Maybe, but given the intractability of violent crime throughout the whole region, that sounds like wishful thinking.