To Rebuild You Gotta Have Trust, Baby

In order to do big things to meet the challenge of the next century we need to understand how existing systems have broken trust and a framework to fix them

Its likely if you’re reading this in the US you don’t trust the government to do many of the things its empowered to do. If I had to wager a guess I’d say many of you distrust the criminal justice system, how we keep up infrastructure, and the very idea that the government can provide you a good experience when using any of its services.

You’re not alone.

Trust is earned slowly and lost quickly. In the US we trust each other slightly less than we used to, but our trust in government has experienced a precipitous decline. By comparison the average European finds their government twice as trustworthy as we do.

We’re faced with lot of huge problems like climate change, crumbling infrastructure, soaring inequality, and a generation that is the first in many expected to grow up poorer and die younger than their parents.

You may disagree about whether or not a government should directly intervene in all of these problems, but I think most would agree that even the passive day to day impact of government policies influences the direction and speed of these trends.

We should be doing all we can to ensure that this influence is creating the most benefit for the most people. That means thinking about how government services are designed and why they break our trust.

How is trust broken?

Trust is about fairness, its about consistency, its about knowing what the outcome could be and believing it was consistent and well intention-ed.

There is a reason the greatest outrage stems from abuses in the justice system: our cultural expectations of the system are incredibly high, but the opportunities for failure are built in to every piece of the system. Discretion, human fallibility, and biases are given opportunity to shape the outcome at nearly every stage.

Think about the steps that have to happen to get to a conviction. At almost every step we lean heavily on the discretion of a person to decide your fate and often the rules that are in place can be leveraged against you or set aside for your benefit.

This is a simplified example of just one possible path through the system, but in it you can see how you are judged many many times before you even see an actual Judge.

What many expect is that the system up until the trail is impartial, predictable, and neutral, but what we find is that the entire process is heavily bound by our biases.

What we are seeing is the impact of discretion on a system we thought was primarily predictable or By-Right.

Discretionary vs By-Right

In the world of land use policy there exists this idea of building things by-right or with conditional approval. This concept is tied heavily to zoning, which is implemented nearly everywhere nowadays, and the difference between these two kinds of systems leads to massive differences in outcome.

In a By-Right system if you submit a plan for a building that meets all the land use regulations, is zoned properly, and has designs that qualify you for a permit then once it is reviewed against the rules it is automatically approved.

In a Discretionary (or Conditional) system there are steps in the process where your building is put at the discretion of a person or group who are granted the power to approve or deny your building for reasons that may not have to do with compliance with the rules. Often times discretionary bodies have the ability to add criteria that your project must meet, or reject it based on opinion like aesthetics or community impact.

The impact of discretionary systems can be seen in the way projects are built, or often fail to get built, in places like San Francisco. In San Francisco building your ice cream shop on a commercial street can be be held up by any neighbor including a competing ice cream shop even though it meets all of the planning requirements.

Many parts of our government processes and policies are built or have been modified to become more and more discretionary over time, but many have also been designed to explicitly benefit fewer people. i.e. Exclusionary.

Inclusive vs. Exclusive

The greatest violation of trust comes when a system provides ample opportunity for discretion and bias and when its rules are designed for the exclusive benefit of a worthy group.

A great example of a system with an exclusionary bent is food stamps. Food benefits for the poor on the whole seem like a good inclusive idea that should be easy to implement by-right. We simply provide food stamps to people who cannot afford food right?

Well, no. First we exclude those who don’t “deserve” it: those who don’t work enough hours, people who are addicted to drugs, people whose income rose slightly too high in the last 3 months, and on and on.

The cost to exclude people is not only costly it also creates so many barriers to using the program that even the “deserving” often can’t or don’t think they can clear the hurdles of getting the benefit.

In Florida they’re requirement of drug testing every person applying to welfare wound up costing more money than it saved not counting the cost to human dignity. To say nothing of the fact that someone suffering with drug addiction can actually be, you know, hungry.

There’s also an inherent trust lost in a system that assumes the worst about you and is designed to prove that assumption.

An Untrustworthy Combo

If you had to map the different government programs you mistrusted and had bad experiences with, I’m willing to bet its because you experienced a frustrating or unfair discretionary decision or had to fight a system that made you jump through endless hoops to make sure you qualified for the help you needed.

The up front design for discretion and exclusivity leads to a lot of bad outcomes:

  • Bureaucracy - Exclusionary and discretionary systems are extremely hard to administer at scale. Thousands of Social Security employees, hundreds of pages of regulation, 64 pieces of public testimony heard over an ice cream shop,

  • Time - When a system is designed to exclude, or has to make time for discretion something that could take minutes or hours can be dragged out for months or years.

  • Under-service - By putting barriers up to stop the, perceived, wrong people from getting help many who need it are discouraged or stopped from getting it altogether.

  • Corruption - By making many decisions discretionary that shouldn’t be, we open up avenues for those with the power to be directly influenced to approve or deny projects by those with influence.

  • Rent seeking - When housing is difficult to build those who already own it disproportionately benefit as do companies who are already licensed or approved to perform certain work. They can easily raise prices or offer a far worse product with few consequences.

  • Inflexibility - Because these programs/systems/departments have to be onerously huge to manage all of their rules and discretionary processes they also move incredibly slowly and require far more work to adapt to any changes.

How do we start to fix it?

With the justice system : More By-Right Enforcement, Conditional Judgement

If we start to take a critical eye to a lot of the programs and systems we contend with we can quickly start to see where changes and modifications can start to make more things operate by right and more rules and regulations modified for inclustion.

A lot of great work is already being put into Criminal Justice reform and if we take a look at some of these changes we can see where changes are are influencing how discretion and exclusivity are being addressed.

Mandatory minimum sentencing reform is a way to make the justice system more fair by moving where discretion happens from Prosecutors to Judges. Instead of the DAs office having massive influence over the sentencing of a defendant by picking what charges to bring a Judge is now able to use discretion and allowed to deliver either shorter sentencing or alternative diversion options like treatment.

Mandatory minimums were also exclusionary in a deliberately racist way, by systematically punishing drug offenses more likely to be levied against black defendants.

Bail reform removes a discretionary decision by a judge for what your freedom and livelihood is worth while awaiting trial. The consequences for high bail often meant evictions, job losses, and more for defendants who could not afford the set bail.

Automated traffic enforcement creates a By-Right enforcement mechanism that removes biased discretion that often happens at a traffic stop. Minorities are many times more likely to be stopped, detained, arrested, or killed at a traffic stop where the pretext was a minor traffic violation that could have been resolved with a fine or a warning.

All of sudden we see multiple steps of the previous example have been modified to be more fair and more predictable and discretion has been restored to the one place where we expected it.

The benefits of supporting these kinds of reforms everywhere are huge and most importantly they serve to build trust by creating more consistent outcomes and a better experience overall

Where else could this make a difference?

We can take this lens and apply it almost everywhere and see big benefits in reducing bureaucracy, efficiency, equity, and outcomes.

  • Welfare - By making benefits more universal we simplify administration, reduce bureaucracy, opt-in more people who qualify, and often reduce the cost of administering the benefits in the first place

  • Minimum Wage - But this is by right, you say! Almost. We have exclusions for huge categories of workers including disabled employees and students.

  • Construction and Housing - This is deserving of a post all on its own, but making zoning and regulation more inclusionary and by-right will help make housing massively more affordable. Plus: More ice cream shops.

  • Immigration - As a naturalized citizen who went through one of the easiest possible paths to citizenship I can tell you that this is an absolutely monstrous system in its exclusion by design. We can make this far easier while still taking reasonable precautions.

  • Licensing - Did you know we artificially restrict the number of doctors that can be graduated each year? That hairdressers can require more job education than police officers? There are imbalances everywhere in the systems we use to manage job qualifications. So much room for improvement.

The last big one, which is also my favorite irritating example:

  • Taxes

Honestly, this is just a freebie. There can be no challenger to the mental image of the sprawling cubicle monstrosity of the IRS. It is disliked, feared, and poorly understood.

Taxes are, for no good reason, discretionary and exclusionary. They don’t have to be.

But, today the IRS is the proud sole distributor of the only compulsory math test whose failure can send you to federal prison.

For 50+ percent of Americans (I’m lowballing) the IRS could send you a completely *pre-filled* tax return with everything it already knows about your finances and simply ask for your approval of its calculations. Doesn’t that sound nice?

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That’s a wrap

I hope this got your brain turning. There were a lot of things left on the cutting room floor including how equity applies to these systems as well as how the political and cultural influences in America strongly influenced a lot of the decisions we need to undo, but there’s only so much time.

Do you agree with my conclusions? Do you think making these kinds of changes will lead to a gov’t you and others are more likely to trust? Leave a comment and let’s chat about it.

Till next time ✌️,

Jóhann