April 29, 2008

Though not conservatives, libertarians nonetheless rely on selective portrayals of the past to support their fantasies about drug legalization.  They are particularly fond of painting a scary picture of the drug war replete with thuggish cops, draconian sentences, and a scary authoritarian picture of the new America.  They contrast this picture with the recent past, a time without SWAT teams and drug-sniffing dogs.  But do these accounts square with reality?  Was the policing of the past any more “€œlibertarian”€ than the present? 

The state of the society at any given point in time is typically mixed.  We are often declining in one area, while improving in another.  As Burke noted, “€œThe science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori. Nor is it a short experience that can instruct us in that practical science, because the real effects of moral causes are not always immediate; but that which in the first instance is prejudicial may be excellent in its remoter operation, and its excellence may arise even from the ill effects it produces in the beginning.”€  Criticisms of the drug war, lodged by libertarians and liberals alike, are too often maudlin and sentimental, ignoring the ways the drug war has mollified the mistakes of yesterday’s liberals.  Critics are particularly fond of misleading anecdotes, ignoring that policing of the past was harsher than the present.

Consider Radley Balko, an archetypal libertarian and sometime staffer at the storied Cato Institute.  In a recent entry, he decries police “€œmilitarization”€ as represented by the provision of scary uniforms to a police anti-gang unit.  This is an instance where libertarians”€™ rationalism leads them down to error when trying to make sense of the real world.   Laws and law enforcement do not solely involve questions of abstract liberty.  The question is whether law enforcements leads to an overall improvement in the quality of life:  safety, prosperity, and, yes, liberty too.   Obviously, most people do not want to be mistreated by police.  But most people are law abiding, and they do want criminals to be scared of police.  

Popular attitudes about crime and law enforcement recognize that criminals are atypical.  Thus, most people sympathize more with folks like themselves busted on au courant criminal environmental regulations or for carrying a gun for self defense“€”i.e., the behavior of typical law abiding people”€”than they do when typical criminals are busted for pimping prostitutes or selling dope.  The fundamental error of libertarianism is a monomaniacal focus on the state.  They ignore the fact that we lose our practical freedom equally in a time of high crime and disorder.  The barricaded urban apartments during the 1970s were just as much a signal of restrained freedom as our W-2 forms are today.

Whether on balance drugs should be legal, most people recognize that drug dealers are law-breakers that are often vicious and violent.  Their violation of the drug laws is not so much an expression of their natural rights as it is the manifestation of their naturally anti-social characteristics.  Popular movements to increase penalties for drug dealers and to expand the capabilities of police are sensible and healthy.

There was no libertarian golden age of gentle policing.  Indeed, before the drug war began in earnest during the 1970s, police had a great deal more authority and used a great deal more violence than they do today.  In the 1950s, police could interrogate without a Miranda warning, arrest people for such crimes as “€œprowling by auto,”€ police could shoot a fleeing offender, and suspects did not have a right to state-provided counsel.   All this without a drug war.

The civil rights revolution, coupled with fashionable ideas about rehabilitation, did a great deal to weaken law enforcement in the 1960s and 70s.  Incarceration (and institutionalization) declined, and, predictably enough, crime rates of every kind exploded.   

Before the drug war and the increase in paramilitary SWAT and anti-gang units, police shootings were higher in absolute terms than the present.  Consider the chart below: police shot and killed more suspects than the present in the 1970s, even though the country had nearly 100 million fewer people. 

I”€™ve written about this before, but Radley and other libertarians continue the specious technique of assembling anecdotes about negligent discharges and rogue cops, as if these cherry-picked examples can refute the statistical reality represented above.

Libertarians are correct that the drug war often entails long mandatory sentences, disproportionate impact on young minorities, and that these crimes, strictly speaking, are not violent.  Yet violent crime has dropped in recent years.  Consider the data below:

How can this anomaly be explained if drug dealers are, in fact, hapless victims of over-aggressive law enforcement, no more violent than people picked at random?  The reason is that criminals of one kind of crime are more likely to commit another.  Few offenders stick to one, and only one, type of offense.  This is why incarceration rates in general and rates of violence are strongly linked. Instead of quixotically fighting root causes, it’s easier to lock up criminals when they identify themselves by committing a crime, any crime.

There’s a logical reason that drug laws have been effective at gathering up society’s trash.  It’s much harder to prove burglary, rape, and murder than it is to prove a drug offense.  The evidence, for starters, is easier to come by.  It’s much easier to find a kilo of cocaine in a car trunk or a few rocks of crack in a pack of Newports than it is to match offender DNA or otherwise prove a violent offense.  Drug convictions are analogous to punishing Al Capone for tax evasion. 

Along these lines, the often decried “€œinstitutional racism”€ of the drug war is one reason why violent and other “€œreal”€ crimes are dropping.  Minority offenders are being taken out of commission for drug dealing.  These include young men in general, but particularly young minority men in gangs who are willing to break the law.  For violent crimes, blacks offend in general at approximately ten times the white rate, Hispanics at three times.  Drug offenders surely offend violently at some multiple of these raw demographic differences.) 

The extent to which drug offenders re-offend (or would offend) violently is harder to predict with any exactness.  That is, the net cast by the war on drugs is certainly an overinclusive one, sentencing harmless mules and big-purchasing users for long sentences in ways that do not make sense in particular cases.  But the aggregate result is telling:  violent crime has dropped markedly as the rate of long term drug incarceration has risen. 

There is another factor in their account of the war on drugs that is ignored by libertarians.  Lower rates of incarceration in the past mask the fact that the total institutionalization rate of the past was much higher.  In other words, more people were in loony bins in the pre-drug-war era.  For the rest of us to enjoy the freedom that comes with safety from crime, it is important that the smallish percentage of societal misfits are identified and locked up.  Today’s misfits are often locked up for dealing drugs; in the past, they could be easily labled crazy and put away for life.  Surely this aspect of the present day regime is more libertarian (and overall much better) than that of the 1940s and 1950s, where forced mental institutionalization could take place on a relatively flimsy showing without any criminal behavior having taken place.  This important fact doesn”€™t fit the script, however, and the libertarians instead project their vision of an ideal society onto the much more complicated reality of the past.  Instead of sanitariums and the “€œthird degree,“€ it is instead painted as a time of Officer Friendly and brief stays at orderly, safe prisons.

In short, America locked up more people in the past, and law enforcement was frequently more violent in its tactics.  Law enforcement effectiveness declined under the impact of liberal utopianism in the 1960s and 1970s.  Fed up with high crime, and identifying the culprit in drug gangs, various common sense reforms led to longer sentences for drug pushers. In addition to punishing an inherently predatory and anti-social behavior, these sentences have had the happy byproduct of locking up the self-identified law-breaking young men”€”most of whom are minorities”€”many of whom would otherwise be committing violent crimes. 

Ron Paul and other critics of the present drug war would do well to explain what aspects of the past law enforcement balance they would restore, which they would reject, and how they would continue to suppress violent crime that the drug war is now tamping down quite effectively, albeit indirectly.


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