Rethinking Civil Rights as Property Rights

My latest over at Rare is an attempt to couch the importance of race-conscious policing within a libertarian framework:

As we’ve seen over the years, property rights, even more than tax rates, are more important to the development of markets and growing economies. Simply, if a nation-state wants investment—of both capital and effort—people who make those investments must have a reasonable belief that a return on that investment is possible in a successful venture. A state with shaky property rights—whether expropriated by the state, such as Venezuela, or seized and distributed to the kleptocratic oligarchy, like Russia—is much less likely to draw foreign capital because property can be seized at the whim of the elites. Places where investments are protected by the rule of law, on the other hand, attract capital because investments are protected from state-sanctioned theft.

Civil rights are really no different.

If civil rights protections are widely denied, particularly to one group of people, because they are routinely ignored and capriciously violated by police officers, those rights lose all tangible meaning to that population. Mistreatment by authorities—whether official policies like Stop and Frisk, or tolerance of police brutality, corruption, or homicide—corrodes the integrity of a community. The government loses credibility by effectively nullifying its own authority by arbitrary enforcement of laws (government powers) and the protections for citizens (civil rights).

Read the whole thing here.

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Lessons from Ferguson

The quote that has been the subhed of this blog for years is Robert Nozick's "Only the refusal to listen guarantees one against being ensnared by the truth." In a world in which people of color feel mistreated because of their race, supported by mounting evidence supporting those claims, ignoring or simply waving away those problems is just that sort of deliberate ignorance. Someone who comes to public policy from this perspective needlessly undermines their own message because their worldview doesn't comport with the realities faced by many people.

That is why I was so excited about a recent event at Cato, and was even more pleased with how the event went.  The event was called "Lessons from Ferguson," and it featured a number of voices across the spectrum dealing with race and American policing.

Moderated by my colleague Tim Lynch, the panelists included Professor Alice Goffman, author of On the Run, a sociological narrative about her observations in a black Philadelphia neighborhood; Ethan Brown, author of Snitch, a history of the infamous and widely misunderstood "Stop Snitchin'" movement; Neill Franklin, retired Baltimore police officer and executive director of Law Enforcement Against Prohibition, and Lauren Victoria Burke, journalist and creator of the blog Crewof42.

I highly recommend you watch the event in full. I enjoy many Cato events, but it is rare when we have a collection like this. I'm not sure anyone on the dais (besides Tim, of course) would self-ID as libertarian, but these are problems everyone should recognize regardless of party or ideology.


Of particular note, I found Neill's comment about his run-ins with the police as a black child in Baltimore, as well as his admission that, even as a black police officer, you just become accustomed to treating black kids differently. That is what institutional racism is all about. 

It's all worth watching as I thoroughly enjoyed each presentation. I cannot say enough about how glad I am that Cato hosted it.

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DISCLOSURE: As most people who read this know, I work at Cato, but this is my personal blog. I wasn't asked to promote this event, it's just a topic that is near and dear to me and I'm so happy we're bringing in people--scholars, practitioners, and writers, including people of color--who can talk about what is going on in America. Also, I make a brief cameo near the end.

No, RBG Is Not Embracing Eugenics

[NB: like all my posts here, but particularly on this topic, this is a personal opinion and should in no way reflect upon my employer or any other organization with which I may be affiliated. Thx, JPB]

I so very rarely delve into abortion politics because my personal views are just that, personal, and entirely separate from my thoughts of Roe, Casey, or the broader abortion case jurisprudence as it stands today.* But this hullabaloo over Justice Ruth Bader Ginsburg’s recent comments about not wanting more impoverished kids is absurd. Separate from the context, the statement is perfectly reasonable.

The quote:

It makes no sense as a national policy to promote birth only among poor people.

Uh, yeah. For a party that embraces a smaller (if not non-existent) welfare state, this should be common sense. If abstinence were the context, this would be perfectly acceptable to the right.

The problem is one of philosophical priors, not a lurking embrace of Sangerian ethnic cleansing.

This isn’t a small semantic difference. Progressives and other pro-choice folks don’t see abortion as murder. They just don’t. You can believe it is, that doesn’t change the fact that they don’t. If you want to say that being actively pro-abortion is effectively supporting mass murder, it’s an opinion and it’s consistent. 

Suggesting, however, that RBG and other pro-choicers actively want to wipe-out the people who are poor, not the symptoms of poverty—you know, like teenage motherhood and all its trappings like dropping out of high school, working at a low-skill job that can’t pay for food, shelter and daycare, etc.—is just nonsense. 

They don't see the fetuses as people, so the underlying problem with the statement is that she does not believe abortion is killing children, not the destruction of a class or race of persons. Your problem, if you have one, is her view of abortion, not of poor people, let alone poor people of color.

Regardless of your opinion of abortion’s morality, just because a woman has an abortion at 17 because having a child would financially ruin her doesn’t mean she’ll never have kids when it’s a better time for her. Ergo, it’s not  supporting eugenics to say that, as a matter of public policy, we shouldn’t encourage unwed teenage motherhood. 

The left sees this as an abortion issue, the right sees this as a family/personal responsibility issue—both would agree, in a vacuum, unwed teen mothers are not ideal. The difference comes in what to do after a woman gets pregnant, but I’m not here to say what that should or should not be.

If you want to say abortion is murder, that’s your business. But don’t equate being pro-choice with supporting genocide through attrition. Yes, pro-choicers have a racist, horrific past—but that’s because America has a racist, horrific past. It’s no more racist to be pro-choice than it is to be in favor of small government. 

Both have roots in racism, because they both have roots in America. 

bellum medicamenti delenda est

*Indeed, RBG herself has misgivings about the rationale supporting current abortion jurisprudence.

PS—I’m not going to argue about this on Twitter, so don’t try.

How Did We Get Here?

Today, Mike Konczal of the Roosevelt Institute takes exception to my response (and that of Vice writer Lucy Steigerwald) to Franklin Foer's piece about runaway local law enforcement and the abuse of civil asset forfeiture.

As I explained to Konczal in a longish Twitter exchange last week, I'm not arguing with Foer's point that local law enforcement needs oversight, namely by the federal government. I believe strongly in equal protection and I have argued many times on this blog and other places that local law enforcement can be and is often a pernicious influence on the well-being of a community.The federal government, specifically the Civil Rights Division of the Department of Justice, serves a vital role in the protection of American citizens from the abuses of their own police forces.

But the argument Foer and Konczal make is that because most civil asset forfeiture--Foer's exemplar of local government run amok--is run by and for state and local governments, the remedy for this should be federal. The point of my argument in Rare last week was that civil asset forfeiture is also the policy of the federal government and doesn't look to be abating any time in the near future.

Lost in Konczal's response today is how much of local police policy is driven by federal intervention. COPS grants, Byrne Grants, the War on Drugs, the 1994 Omnibus Crime Bill all had and continue to have direct influence on where and for what purpose policing happens.

Take these highlights of the 1994 Crime Bill, courtesy of Mariame Kaba:

1. $10.8 billion in federal matching funds to local governments to hire 100,000 new police officers over 5 years.
2. $10 billion for the construction of new federal prisons.
3. An expansion of the number of federal crimes to which the death penalty applied from two to fifty-eight (the bill also eliminated an existing statute that prohibited the execution of mentally incapacitated defendants).
4. A three strikes proposal that mandated life sentences for anyone convicted of three “violent” felonies.
5. A section that allowed children as young as thirteen to be tried as adults.
6. The creation of special courts able to deport noncitizens alleged to be “engaged in terrorist activity” on the basis of secret evidence.
7. Established guidelines for states to track sex offenders. Required states to track sex offenders by confirming their place of residence annually for ten years after their release into the community or quarterly for the rest of their lives if the sex offender was convicted of a violent sex crime.

I think Foer, Konczal and everyone else with passing knowledge of criminal justice policy agree that the War on Drugs undergirds these and other rampant abuses by local police. The War on Drugs IS federal policy. The War on Terror which further augmented the already creeping militarization of local police departments, IS federal policy. DHS and DoD grants are federal government incentives--some of which are "use it or lose it" grants that influence local police to buy more than they need or risk losing federal assistance.

Therefore, it is PATENTLY ABSURD to believe that the federal government neither has had nor  continues to have an active role in influencing and driving the policies of local police. Without the federal War on Drugs, it's hard to imagine civil asset forfeiture becoming the cash cow for local authorities it is today. Without federal direction and incentives, due to the War on Terror, it's hard to see how police became surplus dumps for the DoD and beneficiaries of DHS largesse. Without federal influence, it's hard to see how marijuana and other drug arrests for simple possession become the number one reason for being arrested in the United States. (I think it is no coincidence that driving under the influence, a crime that also drew federal incentives before it became a cash cow in itself, is the second leading cause of arrest in the United States.)

In short, yes, the states and localities are running rampant with the law enforcement tools they use. I never argued they didn't. But it is nothing short of fantasy to think that past and current federal policies didn't get us to this point. Looking to them as the beneficent saviors to the policies they created--beyond removing the incentives they did and continue to provide--seems a bit daft.

As I ended my Rare piece, criminal justice reform need not start at the federal government level. But if we want to look at the source for many of these problems we face in localities today, you cannot responsibly ignore the federal government's heavy hand in most of them.

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My Response to Franklin Foer of The New Republic

TNR editor Franklin Foer took to his virtual pages today to argue for more federal involvement to protect our civil liberties. In the abstract, I agree with him: I think the federal government is a necessary check against wanton abuse by states and locals against their own people. (We kinda fought a war that settled that.)

However, when it comes to details, he's about as far afield of correct as you can get:

But back to the actual issue at hand, Foer cites civil asset forfeiture as the strongest evidence of need for federal intervention. Oh, if this were only the case.

As this Institute for Justice’s 2010 paper on the subject makes clear, the rise civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as “equitable sharing” agreements, federal law enforcement split forfeiture proceeds with state and local law authorities, supposedly in relation to the amount of work the agencies put into the investigation. While the amount of money is discretionary by statute, all reports indicate that the default split is the maximum allowed: 80 percent to local agencies, 20 percent to the federal government.

You can read the whole thing here.

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Beyond the Drug War: How Libertarians' Aversion to 'Black Issues' Impedes Their Own Relevance

I have a new piece up at Rare today. In it, I lay out the case that color-conscious criminal justice reform is needed, and libertarians persistent refusal to take these problems head-on undercuts their message of individual liberty.

Take the reaction to the Ferguson protests: only one third of white people surveyed by Pew thought tear gassing and pointing guns at peaceful black protesters (and journalists) was “too far.” Even subtracting the third who answered “I don’t know,” half of those who expressed any opinion thought the police’s actions against the primarily black crowd—captured on countless cameras, phones, and video recorders—were within the range of acceptable behavior.

In a world in which this well-documented, recorded, over-the-top enforcement is tolerated or condoned by a majority of Americans, relying on cameras to rein-in police behavior in minority enclaves or against minorities individually is probably quite naïve.

Other big picture policy shifts like eliminating sex-work prohibitions, broad sentencing reform, and reducing the Pentagon programs that militarize and hyper-weaponize local police would also benefit millions of Americans. However, there’s no reason libertarians should not add an equal protection component to their criminal justice reform wish list and encourage law enforcement agencies to improve community relations with minorities.

You can read the whole thing here.

bellum medicamenti delenda est

"You're Not Really Black, Right?"

I guess it's time to finally write a version of this I can publish and share as needed. I wrote a post on a similar theme years ago in response to a reflexive, lighthearted but racially tinged facebook comment I wrote when my social media presence was essentially some friends, family, and former schoolmates. I write this disclaimer basically to avoid accusations of 'plagiarizing myself' and just basic principles of honesty, since much of what I write here is copied/adapted from what I've said so many times before, though I've only written about it once. -- JPB

Over the course of my life, I've been questioned about my race. These questions have taken various forms--from mildly curious to unintentionally offensive to bizarrely hilarious--but they've been coming since I was about 9 years old.

For those few readers who may not know what I look like:

I'm 'light-skinneded' and then some

My father was black. My mother was white. As I have said often, I could "pass" for white if I so chose. I am aware that some people don't consider me "black" by their standards, but that's them and not my problem.

That said, I take my race and ethnicity very seriously. I grew up with black family and black friends. No more than four familial generations ago--records indicate I'm 4th familial generation born free--my family was owned by white people in Meridian, Mississippi.

I mean, it was 1880 Mississippi. I don't know how "free" they really were.

My father grew up in the Great Depression in Indiana--a state literally run by the Klan at the time. I have heard stories about how my grandfather, James, would grab his gun and go outside to get all the children in the house because the Klan was about to march up the street they lived on--one of the three streets or so blacks were allowed to live on in Fort Wayne at that time. My father and my family had to endure racism most of us today can hardly fathom--and I grew up acutely aware of this. I knew I had opportunities that my father never had, and I have always been grateful for how much he went through and how much he sacrificed so I and my siblings could become successful people.

The 70s were an awful time for fashion--I mean those shoes! Ugh!--but Pooh is eternal

When I was very young, my father told me, (paraphrasing), "Because of who you are, or what you are [read: black]--you may have a harder time than other [read: white] people. Deal with it, and move on." It was the 1980s and my first school district was still trying to implement desegregation plans--and we were still interchangeably called "Negro,""black," or "Afro-American."

Ironically, my father's insistence on voting on that desegregation plan after our family moved a quarter mile from the school district boundary, unbeknownst to us, caused me to leave my accelerated magnet program for a less advanced, increasingly segregated school system.

The students' race used to be listed next to our names on our attendance sheets in this second school system. Race is most certainly a social construct, but it made enough of a difference to mark each of us as such on every printout every teacher, student, and administrator was given.

Jonathan P Blanks| 7(th grade)| M(ale)| B(lack)

America was much less tolerant just 20-25 years ago than it is today. It was weird, even in the closing years of the 20th century, for a white girl's parent to be okay with their daughter dating me, despite my not being visibly black or holding the stereotypical undesirable traits which may lead one to think reasonably justifies such explicit prejudice.

But that's the thing--racism doesn't make any damned sense.

We, as black people, have different experiences that make us who we are. These differences are related to skin tone, hair, what part of the country we grew up in or whether we lived in the country, the city, or the burbs. There is no singular "black" experience--but almost all of us know racism.

How we deal with that is a part of what makes us black. I've been called an 'exception.' I've been called 'not really black.' But I've been told nigger jokes, and I've heard people say "well, not you, but YOU know." I've had perfect strangers talk about 'niggers' in front of me--even since I've moved to DC (by a former police officer, no less!).

I know they're talking about my father. I know they're talking about my siblings. I know they're talking about my cousins. And make no mistake they are talking about me--whether they know it or not.

Somehow, I'm dorkier than the guys in the Purdue and Starbury jerseys. SMDH

I can't explain the range of emotions that hit when that look comes over their face when I tell them I'm black and they start stammering their way into excuses and lies about what they really meant. No one thinks of themselves as "racist," but it takes a special kind of coward to disown the words that just came out of his mouth for not the first or second time.

I digress.

While my parents were among the first generations in living memory to openly 'miscegenate' absent of government obstacles, I'm hardly the first person who could 'pass for white.' Indeed, James Weldon Johnson wrote a moving book entitled The Autobiography of an Ex-Colored Man back in the early part of last century. It's moving and heartbreaking...and you come away understanding why some people would deny their heritage and their families to escape the punishment and terror that was black life for so much of our nation's history.

But the pivotal moment when I realized my situation wasn't new--and what I was feeling wasn't either--was when I read Malcolm X's Autobiography for the first time:

"But I will tell you that, without any question, the most bitter anti-white diatribes that I have ever heard have come from "passing" Negroes, living as whites, among whites, exposed every day to what white people say among themselves regarding Negroes -- things that a recognized Negro never would hear."

Like a thunderclap I realized that this resentment I felt--while not "anti-white" per se--was something untold numbers of Americans have felt for years. That my experience was something genuine too--because my authenticity (black, white, or other) was questioned by seemingly everyone in my adolescence--was a seminal moment of my life. I didn't necessarily self-ID as "black" for a number of years afterwards--indeed, I went through a phase during which I was quite hostile to the concept of a distinct black identity--but that book changed my life.

I knew exactly what those people felt...and realized I wasn't alone. That shared experience is the bond of community that a lot of black people feel toward each other. It took me a bit longer to figure it out, but that is why I feel how I feel and why I identify as "black" and not "white," though I never disavow nor do I feel shame about my mother's family or heritage.

I think I've said enough on this subject for public consumption.

Suffice it to say, however, that if I'd be black enough for Malcolm X, I'm pretty sure I'm black enough for you.


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