And what is underlying this respect for human rights? Paul rightfully says it’s tolerance, “…liberty is liberty and it’s your life and you have a right to use it as you see fit.” In other words, the driving factor of a belief in non-aggression is being tolerant of others’ choices.

Writing in 1929, Mises understood this well, “…only tolerance can create and preserve the condition of social peace without which humanity must relapse into the barbarism and penury of centuries long past.”

Explaining why non-aggression necessarily involves other beliefs, Lew Rockwell writes, “…no political philosophy exists in a cultural vacuum, and for most people political identity is only an abstraction from a broader cultural view. The two are separate only at the theoretical level; in practice, they are inextricably linked.”

What Paul, Mises, and Rockwell understand is what Charles Johnson describes as “strategic thickness.” Strategic thickness is the view that certain ideas and values are useful for promoting, implementing, and maintaining the morality of non-aggression in the real world. After all, there are obviously going to be some ideas that are more complementary to non-aggression than others.

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One of the most interesting presentations was by Maggie McNeill, a retired sex worker who blogs at The Honest Courtesan. Her talk debunked a variety of common myths surrounding sex work, and made a compelling case for decriminalizing prostitution. Moreover, she argued that the criminalization of sex work undermines everyone’s liberties, even for people who never intend to buy or sell sex, and that the “War on Whores” is beginning to take the place of the War on Drugs.

Increasing enforcement of anti-prostitution and anti-trafficking laws enables the state to target the same people they’ve targeted under drug prohibition, McNeill argued. She explains that when young people join gangs, one of their roles is bringing in revenue. Men largely do this by selling drugs, while women often do this by selling sex. Thus, the War on Drugs enables the police to arrest and incarcerate young men of color for selling drugs. In the case of prostitution, however, the men in the gang can be arrested and indicted as “traffickers” or “pimps.” In both cases, McNeill argues, young men of color are criminalized.

Another similarity between prostitution prohibition and drug prohibition is the way they empower police to detain, search, and arrest people for utterly absurd reasons. In some cities, police arrest women for prostitution simply for possessing condoms. Yes, the desire to have safe sex is considered evidence of prostitution, especially if you’re a transgender woman of color. In my home state of Utah, police can arrest someone basically for “acting sexy.” When Andrew McCullough and I argued before the Utah State Legislature that this law was overly broad and would criminalize perfectly legal speech, especially that of strippers, the bill’s proponents adamantly denied this. However, our view was grounded in direct quotes from the bill’s text, while the bill’s proponents never referenced the bill’s text and instead indulged in paternalistic fear mongering about prostitution. The bill was sponsored by Democrat Jennifer Seelig and argued for by Chris Burbank, a police chief who is praised for his liberal approach by ordinarily skeptical commentators like Radley Balko.

Anti-prostitution laws often get support from liberals, progressives, and even some leftists, largely because they are promoted in the name of protecting women and stopping sex trafficking. Just as prison abolitionists invoke the name and the moral appeal of the struggle to abolish chattel slavery, anti-prostitution activists cast their work as a struggle against slavery and name their movement for increased police state power after abolitionism. One anti-prostitution group calls themselves “Demand Abolition,” for example. Conflating prostitution with slavery has a long history. The early 20th Century movement against so-called “white slavery” was used to criminalize people of color and lay the groundwork for the surveillance state, Thaddeus Russell argues.

Today, pro-criminalization radical feminists smear opponents of criminalization as misogynists. Amnesty International has been repeatedly attacked for supporting the decriminalization of prostitution, for example. Feminist support for criminalizing consensual sex acts and enabling racist, misogynistic, and transphobic police repression represents a disturbing theme that Angela Keaton explored in her talk at the NOLA Conference: the co-option of liberation movements by the state. Keaton pointed to Gay Inc’s silence on the plight of Chelsea Manning, the push to allow gays and lesbians to serve in the imperialist armed forces, and the Feminist Majority Foundation’s support for war in Afghanistan (against the wishes of feminists in Afghanistan). Other examples include the push for hate crimes laws and the carceral feminist positions on both domestic violence and prostitution.

Presentations at the NOLA Conference by Maggie McNeill, Thaddeus Russell, and Angela Keaton all touched on this crucial issue in various ways. I’m glad young libertarians were introduced to serious and radical thinking on issues of social oppression, as well as critiques of the co-option of liberation movements to serve the interests of the state. There are still more SFL regional conferences happening this fall. Check here to see if there’s one coming up in your area.

The Growth of Incarceration in the United States: Exploring Causes and Consequences, a recent report by the National Research Council, helps explain the growth of America’s prison state. Last week I discussed the report’s findings regarding the impact of impact of mandatory minimum sentences, three strikes laws, truth in sentencing laws, and other harsh sentencing policies. This week I’ll discuss the report’s findings on the underlying causes of mass incarceration.

The authors begin by exploring how the federal government’s power and influence over criminal justice matters grew, and the substantial impact this had on the rising prison state:

Before World War II, the making, implementation, and enforcement of criminal justice policy in the United States were almost exclusively within the purview of the states or local authorities, not the federal government. From the 1940s onward, public officials and policy makers at all levels of government—from federal to state to local—increasingly sought changes in judicial, policing, and prosecutorial behavior and in criminal justice policy and legislation. These changes ultimately resulted in major increases in the government’s capacity to pursue and punish lawbreakers and, beginning in the 1970s, in an escalation of sanctions for a wide range of crimes. Furthermore, criminal justice became a persistent rather than an intermittent issue in U.S. politics. To a degree unparalleled in U.S. history, politicians and public officials beginning in the 1960s regularly deployed criminal justice legislation and policies for expressive political purposes as they made “street crime”—both real and imagined—a major national, state, and local issue. (105)

In response to race riots and other social unrest, “President Harry S. Truman and his supporters invoked the need for more “law and order” as they sought a greatly expanded role for the federal government in the general administration of criminal justice and law enforcement at the local and state levels and in the specific prosecution” (107). While Truman and his allies largely did not see their legislative proposals enacted, “all this legislative activity in the 1940s and 1950s deeply influenced how future discussions of law and order, crime, and the federal role in law enforcement would unfold. In advocating these measures, Truman and his allies helped establish a federal role in state and local law enforcement” (108).

The process of increasing federal control over criminal law continued, fueled by voices across the political spectrum. Civil libertarian impulses paved the way for an end to indeterminate sentencing and the rise of mandatory minimums. “The American Bar Foundation’s expansive research agenda in the 1950s and 1960s on the problem of discretion and arbitrary power also was a contributing factor to the political push for more uniformity, neutrality, and proceduralism in law enforcement and sentencing.” Also influential was “the American Legal Institute’s project to devise a Model Penal Code (to guide sentencing policy)” (108).

Of course, much of the political push for increased penal power came from the right. For example, the Goldwater campaign was among the first to push “law and order” as a key issue. After the Goldwater campaign, “the law-and-order issue became a persistent tripwire stretching across national and local politics. Politicians and policy makers increasingly chose to trigger that wire as they sought support for more punitive policies and for expansion of the institutions and resources needed to make good on promises to “get tough”” (108).

The 1965 Law Enforcement Assistance Act was a bipartisan bill that helped expand federal power in the realm of law enforcement. Liberal Democrats initially supported the act as a way of pushing proceduralism, police professionalism, uniformity, and fairness. However, more conservative politicians in both parties placed provisions into the act that served to expand police power and undermine the various rights that had been granted to suspects, defendants, and prisoners by the Warren Court. “Thus, with mixed motivations, both liberals and conservatives helped clear the political ground for this and subsequent measures that expanded the criminal justice system and ultimately gave local, state, and federal authorities increased capacity for arrest, prosecution, and incarceration” (110).

A similar process occurred with the Omnibus Crime Control and Safe Streets Act of 1968. The bill was initially supported by liberals, because early drafts “provided federal grants to police for equipment, training, and pilot programs and also greater federal investments in rehabilitation, crime prevention, and alternatives to incarceration” (110).  Republicans and southern Democrats substantially influenced the bill, however, and “successfully inserted provisions on wiretapping, confessions, and use of eyewitnesses that curtailed the procedural protections that had been extended by Supreme Court decisions” (111).

There were a variety of racial factors at play in the rise of the “tough on crime” politics that pushed increased incarceration. The Democratic Party’s split on Civil Rights issues enabled the Republican Party to use crime as a wedge issue and a key component of their “southern strategy.” Associating crime and racial fears for political gain was nothing new. The major distinction was the coded nature of this racism:

The southern strategy was different in that it rested on politicizing the crime issue in a racially coded manner. Nixon and his political strategists recognized that as the civil rights movement took root, so did more overt and seemingly universally accepted norms of racial equality.14 In this new political context, overtly racial appeals like those wielded by Goldwater’s supporters in the 1964 campaign would be counterproductive to the forging of a new winning majority. Effectively politicizing crime and other wedge issues—such as welfare—would require the use of a form of racial coding that did not appear on its face to be at odds with the new norms of racial equality. As top Nixon aide H.R. Haldeman explained, Nixon “emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while appearing not to [emphasis in original]” (Haldeman, 1994, p. 53). (116)

The southern strategy was key to the rise of mass incarceration, and white voters consistently support more punitive policies than blacks. However, it would be an oversimplification to suggest that black leaders and voters played no role in supporting the rise of punitive policies. For example, “some black activists in Harlem supported the Rockefeller drug laws, as did the city’s leading black newspaper (Barker, 2009; Fortner, 2013). In New York City and elsewhere, black leaders called for tougher laws for drug and other offenses and demanded increased policing to address residents’ demands that something be done about rising crime rates and the scourge of drug abuse, especially the proliferation of open-air drug markets and the use of illegal drugs such as heroin and then crack cocaine (Barker, 2009; Fortner, 2013; Forman, 2012)” (119).

Republicans often led the way in pushing punitive policies, but the push was generally bipartisan. Indeed, “The two parties embarked on periodic “bidding wars” to ratchet up penalties for drugs and other offenses. Wresting control of the crime issue became a central tenet of up-and-coming leaders of the Democratic Party represented by the center-right Democratic Leadership Council, most notably “New Democrat” Bill Clinton (Stuntz, 2011, pp. 239-240; Murakawa, forthcoming, Chapter 5; Schlosser, 1998; Campbell, 2007)” (120).

Ultimately, the U.S. government’s institutional features play a key role in explaining the rise of mass incarceration. As the National Research Council report notes, “the U.S. House and U.S. Senate have been far more likely to enact stiffer mandatory minimum sentence legislation in the weeks prior to an election. Because of the nation’s system of frequent legislative elections, dispersed governmental powers, and election of judges and prosecutors, policy makers tend to be susceptible to public alarms about crime and drugs and vulnerable to pressures from the public and political opponents to quickly enact tough legislation” (124). Electoral politics likewise makes prosecutors and judges behave in more punitive ways. “In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences (Gordon and Huber, 2007; Huber and Gordon, 2004)” (124).

This fits what we would expect from a public choice perspective. Research by Daniel D’Amico explores the perverse political incentives that give rise to disproportionate punishment in detail. Similar problems have also been explored in Paul Larkin‘s work on public choice theory and overcriminalization. This research can help us understand how America became the world leader in mass incarceration. Hopefully it can give us an idea of the institutional and ideological shifts that are necessary to change it.

In April, the National Research Council released a report, The Growth of Incarceration in the United States: Exploring Causes and Consequences. The report explains many of the reasons incarceration rates have increased so dramatically in the United States, and analyzes the consequences of mass incarceration. 

The report largely ascribes the growth of America’s prison population to changes in sentencing policies. Until the 1970’s, the federal and state governments employed a system of “indeterminate sentencing,” in which “sentencing was to be individualized and judges had wide discretion” (72). But over the next few decades, America’s sentencing laws changed drastically. The report identifies three phases of this shift. During the first phase, from “1975 to the mid-1980s, the reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent. The problems to be solved were “racial and other unwarranted disparities,” and the mechanisms for solving it were various kinds of comprehensive sentencing and parole guidelines and statutory sentencing standards.” These changes were designed with liberal goals in mind, and often featured “population constraints” to control the growth of prison populations. The second phase, however, was far more punitive. “The second phase, from the mid-1980s through 1996, aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain. The principal mechanisms to those ends were mandatory minimum sentence, three strikes, truth-in-sentencing, and life without possibility of parole laws.” The authors characterize the third phase as a “period of drift” with relatively few increases in punitive policies (73).

The authors primarily blame the prison population’s growth on this second phase. They note that “truth-in-sentencing” laws, which require prisoners to serve a minimum percentage of their sentence before being released on parole, substantially increased prison populations. Citing research from the Urban Institute, the authors note that “When implemented as part of a comprehensive change to the sentencing system, “truth-in-sentencing laws were associated with large changes in prison populations”” (80). These laws primarily increase prison populations over the long term. The authors quote Spelman, who notes “Truth-in-sentencing laws have little immediate effect but a substantial long-run effect. This analysis makes sense: Truth-in-sentencing laws increase time served and reduce the number of offenders released in future years; the full effect would only be observed after prisoners sentenced under the old regime are replaced by those sentenced under the new law.”  Because these laws only show their full effects in the long term, many studies understate their impact on incarceration rates. “The Urban Institute, Vera, and RAND studies underestimate the effects of truth-in-sentencing laws on prison population growth because they cover periods ending, respectively, in 1996-1998 (for Ohio), 2002, and 1997. Mandatory minimum sentence, truth-in-sentencing, and three strikes laws requiring decades-long sentences inevitably have a “sleeper” effect,” the report notes (82).

In addition to expanding the prison population, these sentencing policies put a lot of discretion in the hands of prosecutors. The authors note that “Two centuries of experience has shown that mandatory punishments foster circumvention by prosecutors, juries, and judges and thereby produce inconsistencies among cases (Romilly, 1820; Reekie, 1930; Hay, 1975; Tonry, 2009b). Problems of circumvention and inconsistent application have long been documented and understood.” While mandatory minimums, truth-in-sentencing laws, and other mandatory punishments were designed to produce more standardized, consistent, and certain punishment, they can actually have the opposite impact. The authors provide specific examples of how this operates:

“Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue…thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge” (Remington, 1969, p. xvii). Newman (1966, p. 179) describes how Michigan judges dealt with a lengthy mandatory minimum sentence for drug sales: “Mandatory minimums are almost universally disliked by trial judges…. The clearest illustration of routine reductions is provided by reduction of sale of narcotics to possession or addiction…. Judges … actively participated in the charge reduction process to the extent of refusing to accept guilty pleas to sale and liberally assigning counsel to work out reduced charges.” Newman (1966, p. 182) tells of efforts to avoid 15-year mandatory maximum sentences: “In Michigan conviction of armed robbery or breaking and entering in the nighttime (fifteen-year maximum compared to five years for daytime breaking) is rare. The pattern of downgrading is such that it becomes virtually routine, and the bargaining session becomes a ritual. The real issue in such negotiations is not whether the charge will be reduced but how far, that is, to what lesser offense” (Newman, 1966, p. 182). Dawson (1969, p. 201) describes “very strong” judicial resistance to a 20-year mandatory minimum sentence for the sale of narcotics: “Charge reductions to possession or use are routine. Indeed, in some cases, judges have refused to accept guilty pleas to sale of narcotics, but have continued the case and appointed counsel with instructions to negotiate a charge reduction.” (78-79)

This has a variety of consequences. It erodes the deterrence that is supposed to come with harsher sentencing. But perhaps more importantly, “Mandatory punishments transfer dispositive discretion in the handling of cases from judges, who are expected to be nonpartisan and dispassionate, to prosecutors, who are comparatively more vulnerable to influence by political considerations and public emotion” (79). In addition to putting leniency in the hands of prosecutors, harsher sentences enable prosecutors to secure convictions without due process, as they can stack charges in order to coerce defendants into accepting plea bargains.

These harsher sentences also play a key role in producing racial disparities. The report summarizes the literature on racial bias at various points in the criminal justice process, including bias against black people who match particular stereotypes. While this racism is clearly present, the authors argue it is statistically small compared to the impact of sentencing policies. They argue that, “The reason for increased racial disparities in imprisonment relative to arrests is straightforward: severe sentencing laws enacted in the 1980s and 1990s greatly increased the lengths of prison sentences mandated for violent crimes and drug offenses for which blacks are disproportionately often arrested” (96).

If social science had played a leading role in policy discussions, these harsh sentencing laws would likely have been seen as undesirable when they were proposed. Unfortunately, “consideration of social science evidence has had little influence on legislative policy-making processes concerning sentencing and punishment in recent decades. The consequences of this disconnect have contributed substantially to contemporary patterns of imprisonment. Evidence on the deterrent effects of mandatory minimum sentence laws is just one such example. Two centuries of experience with laws mandating minimum sentences for particular crimes have shown that those laws have few if any effects as deterrents to crime and, as discussed above, foster patterns of circumvention and manipulation by prosecutors, judges, and juries” (90). It’s predictable that the state would ignore social science evidence. Voters are rationally ignorant, as the cost of studying relevant social science exceeds the benefits to voters of understanding issues. But worse still, as Byran Caplan documents in The Myth of the Rational Voter, voters are rationally irrational. That is, it is instrumentally rational for them to persist in irrational biases that are directly counter to social science, rather than simply being ignorant and agnostic.

The harsh sentences passed during the 1980s and 1990s have been extraordinarily destructive. They have shifted more power into the hands of prosecutors, undermined proportionality, exacerbated racial disparities in the criminal justice system, and played a key role in bringing us an America that incarcerates more people than any  other nation on earth.

Paul went on to point out that many want to embrace liberty up to the point of allowing something they disapprove of. But this obviously isn’t the libertarian attitude that affirms liberty is a fundamental human right not up to debate. Each person deserves the freedom to choose – just because you disapprove of their practices, be it doing drugs or practicing a different religion, doesn’t give you the right to use force against them.

However this doesn’t imply some sort of cultural or moral relativism. “Just because you allow somebody to have a lifestyle you disapprove of doesn’t mean you have to endorse it,” Paul explains. So while I may not agree with your choice to do heroin everyday, I should let you be. I can’t let my moral preferences morph into rights violations. If everyone understood this and didn’t let their own opinions and biases lead to creating systems of coercion, the world would be a much freer place.

And what is underlying this respect for human rights? Paul rightfully says it’s tolerance, “…liberty is liberty and it’s your life and you have a right to use it as you see fit.” In other words, the driving factor of a belief in non-aggression is being tolerant of others’ choices.

Writing in 1929, Mises understood this well, “…only tolerance can create and preserve the condition of social peace without which humanity must relapse into the barbarism and penury of centuries long past.”

Explaining why non-aggression necessarily involves other beliefs, Lew Rockwell writes, “…no political philosophy exists in a cultural vacuum, and for most people political identity is only an abstraction from a broader cultural view. The two are separate only at the theoretical level; in practice, they are inextricably linked.”

What Paul, Mises, and Rockwell understand is what Charles Johnson describes as “strategic thickness.” Strategic thickness is the view that certain ideas and values are useful for promoting, implementing, and maintaining the morality of non-aggression in the real world. After all, there are obviously going to be some ideas that are more complementary to non-aggression than others.

Sheldon Richman points out one of the values that complements non-aggression is anti-racism (Paul has done so as well), which is, after all, just a form of the tolerance that Paul and Mises refer to. I’ve gone even further and argued libertarians ought to be proponents of feminism, gay and trans liberation, and worker empowerment. Now even if these values, for one reason or another, turn out to not be complementary to non-aggression, the reason, if we are agreeing with Mises’ and Paul’s conception of liberty, it can’t be because the philosophy is only concerned with that single idea: for non-aggression is going to inevitably bring along other ideas with it.

For reasons that Paul, Mises, and Rockwell have shown, non-aggression can and does involve, even benefit from, complementary values. They have embraced “strategic thickness” and rightfully so.

This injustice primarily impacts the poor. The key ways to being released from pretrial detention are hiring an attorney, paying bail, or bribing officials. Naturally, the poor have the least access to these options. There are also racist impacts from pretrial detention. As Schoenteich notes, “Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world — Dalits in India, African Americans in the United States, Aboriginal people in Australia.” The report also notes that individuals with mental illnesses and cognitive disabilities are more likely to be detained awaiting trial.

The Open Society report examines the problem globally. But when I think about pretrial detention, two specific cases come to mind: Chelsea Manning and Matthew Stewart.

Chelsea Manning is the heroic whistleblower who released classified evidence of war crimes and other US government misconduct to the journalistic organization WikiLeaks. Manning’s disclosures shed light on what McClatchy Newspapers called “evidence that U.S. troops executed at least 10 Iraqi civilians, including a woman in her 70s and a 5-month-old infant, then called in an airstrike to destroy the evidence.” The outrage caused by exposure of this brutal war crime helped end the U.S. occupation of Iraq. Manning’s disclosures revealed that Hillary Clinton ordered diplomats to spy on and commit identity theft against UN officials. Her disclosures also uncovered evidence related to child sexual abuse by US military contractors in Afghanistan. 

Were any of the criminals Manning exposed held accountable? Of course not. Instead, Chelsea Manning was held in pretrial detention for years before being convicted and sentenced to 35 years in prison, simply for releasing information. She was held in solitary confinement, a cruel form of psychological torture, throughout her detention. UN Special Rapporteur on Torture Juan Mendez investigated the conditions under which Manning was held and concluded “that the 11 months under conditions of solitary confinement… constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Moreover, there is some evidence that the torture was a bigoted response to Manning’s gender identity and expression. As Joanne McNeil reported in Jacobin,

Manning was tortured in part because he [sic] signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”

In a sense, the pretrial torture of Chelsea Manning was not just a crime, it was a hate crime.

Matthew Stewart did not survive pretrial detention long enough to be convicted or acquitted. Late at night on January 4th, 2012, armed men broke into his home with guns blazing. Matthew, a startled gun owner and Iraq war veteran, fired back on the home invaders, killing one and wounding several others. But because they were police officers carrying out a drug raid, Matthew was not treated as a homeowner engaged in legitimate self-defense. Instead, he was locked up in the Weber County Jail and charged with murder. He was subjected to social isolation and other abuses for a year and a half before he eventually committed suicide. He was found in his cell hanging from a bedsheet. After his death, the degradation still didn’t end. Police officers trespassed in his home again even after he was dead and the state’s case against him was closed. Officer Jason Vanderwarf harassed Matthew’s grieving family members on Facebook, writing “now you all can feel our pain.” Vanderwarf was one of the initial aggressors, having lied on the initial search warrant and participated in the home invasion.

Pretrial detention is an appalling human rights abuse. Obviously, it undermines the right to due process and the presumption of innocence. It can be used to torture and brutalize detainees, especially political prisoners who have offended state functionaries, as Matthew Stewart and Chelsea Manning did. And pretrial detention is most often used to cage and abuse the most vulnerable in our society: the poor, ethnic minorities, and people with psychiatric and cognitive disabilities. Let’s end this injustice.

After initial reports that Brown had been shot in the back, early autopsies showed that the bullets actually entered through the front (one shot which grazed the hand may have come from the rear). After claims that Darren Wilson, the officer who shot Brown, had a fractured eye-socket, it was discovered that he just had a swollen face.

Yet no matter what information comes out, most people have stuck firmly to whatever narrative they accepted from the beginning. Discussions about the facts of the case have also been very loud and emotionally charged.

This is because conversations about what happened between Darren Wilson and Michael Brown are not really about what happened between Darren Wilson and Michael Brown. The case is actually serving as a symbol for two other questions, more fundamental and much broader in scope.

The first of which is: “Are the police out of control?”

The way people are talking about this case seems to imply that if Wilson’s use of force was not in necessary self-defense, the police are out of control — and if it was, everything’s fine. No matter how the facts of this particular case turn out, though, the answer to this question is yes.

Even if Darren Wilson turns out to be a near-perfect moral exemplar, the police are out of control. Some estimates say that police kill roughly 400 Americans a year, but the real number is likely much, much higher due to issues with the way that statistic is calculated.

Furthermore, while there is unfortunately no footage of what actually happened that night between Wilson and Brown, Ferguson has since then given us plenty of evidence of lawlessness from the police. Police have used tear gas, rolled through in military vehicles, raided churches, screamed “I’ll f—ing kill you” at crowds, attacked reporters and just generally wreaked chaos on the Missouri town.

The second question that many people are really asking when they ask what happened to Michael Brown is, “is the criminal justice system of the United States still especially skewed against people of color?”

Here, too, we already know the answer is yes. Maybe Darren Wilson is literally incapable of seeing race. Maybe he is the least racist white person in all of Missouri. Even if that ‘s true, it is also true beyond a reasonable doubt that people of color, especially young black men, live under constant attack from the police.

As has been widely reported, blacks in Ferguson are stopped by police at an alarmingly higher rate than whites and are also subject to a disproportionate number of arrests. Ferguson is not unique here. Institutional racism is unfortunately just another part of the American experience.

Despite whites being more likely to use illegal drugs, blacks are four times more likely to be arrested for marijuana possession. Racial disparities in the prosecution of gun crimes are even larger. It’s not for no reason that black families have somber talks with their sons about how to deal with the police.

Because these figures are just numbers to most people, they often fail to inspire change. This leads those living their reality to rally behind a symbol like the fallen flesh and blood of Michael Brown.

Since so much has happened to so many people that has never gotten the news coverage this case has, Brown serves as a stand-in for what’s happened to them or those that they know. They don’t see Darren Wilson, they see the cop who murdered their brothers, framed their cousins or shoved guns in their faces at an early age. They don’t see the Ferguson Police Department, they see the prisons that overflow with people who look like them for “crimes” that hurt no one.

Given Ferguson PD’s failure to be forthcoming with their side of the story, the actions they’ve taken in response to protests and proven lies from nearby departments, it’s probably safer to be skeptical of their claims. Even in the unlikely event that they’re right, though, there’s still more than enough reason for the public to take a strong stance against the police. Not just in Ferguson, but everywhere.

It’s not just Michael Brown getting killed. It’s not just Ferguson where the police are an occupying army. It’s not just Darren Wilson and it’s not just a few bad apples. These problems are structural and have to be addressed at the root.

Balko begins by discussing the arrest of Shaneen Allen:

Last October, Shaneen Allen, 27, was pulled over in Atlantic County, N.J. The officer who pulled her over says she made an unsafe lane change. During the stop, Allen informed the officer that she was a resident of Pennsylvania and had a conceal carry permit in her home state. She also had a handgun in her car. Had she been in Pennsylvania, having the gun in the car would have been perfectly legal. But Allen was pulled over in New Jersey, home to some of the strictest gun control laws in the United States.

Allen is a black single mother. She has two kids. She has no prior criminal record. Before her arrest, she worked as a phlebobotomist. After she was robbed two times in the span of about a year, she purchased the gun to protect herself and her family. There is zero evidence that Allen intended to use the gun for any other purpose. Yet Allen was arrested. She spent 40 days in jail before she was released on bail. She’s now facing a felony charge that, if convicted, would bring a three-year mandatory minimum prison term.

In other words, a woman of color was arrested for a completely victimless crime and now faces a clearly disproportionate mandatory minimum sentence. This incident challenges the way most Americans think about gun control, which is often framed in terms of a conflict between pro-gun reactionary conservatives and anti-gun anti-racist liberals. Yet here a woman of color is facing outrageously disproportionate punishment for a victimless crime precisely because of the gun control laws that are typically associated with progressive liberalism.

This is not an isolated incident. Racially disparate impacts have been a disturbing reality of gun control for years now. Balko explains the disparity as follows:

Last year, 47.3 percent of those convicted for federal gun crimes were black — a racial disparity larger than any other class of federal crimes, including drug crimes. In a 2011 report on mandatory minimum sentencing for gun crimes, the U.S. Sentencing Commission found that blacks were far more likely to be charged and convicted of federal gun crimes that carry mandatory minimum sentences. They were also more likely to be hit with “enhancement” penalties that added to their sentences. In fact, the racial discrepancy for mandatory minimums was even higher than the aforementioned disparity for federal gun crimes in general.

Many liberals and progressives are aware of the racial disparities that plague our criminal justice system and are exacerbated by mandatory minimum sentences. But it’s important for them to recognize that these same dynamics are at play in gun control laws. As Anthony Gregory explains,

When it comes to restricting firearms, liberals have an amazing ability to ignore the hard truth of what they are advocating—putting more people in cages. That is what gun control is.

Why are those incarcerated for gun crimes so disproportionately people of color? Largely because gun control laws, like all victimless crime laws, give police enormous discretion. As Balko explains:

When someone robs a bank with a gun or kills someone with a gun, there’s no debate about who needs to be investigated and prosecuted. When a police agency is charged to seek out and prosecute people who are illegally possessing or transferring guns, they’re required to use their own discretion when it comes to what communities to target and what methods they’ll use to target them.

Inevitably, this will manifest as sting operations against communities with little political clout. (Or, just as troubling, deliberately targeting people for political reasons.)

Expanding the scope of criminal law beyond crimes with clear victims towards victimless crimes that police need to seek out expands the role of discretion in a manner that makes the already marginalized even more vulnerable. This is evident when trans women of color are profiled as sex workers. It’s evident when police searching for drugs stop pull over people for “driving while black.”  And it’s evident in how gun control laws are enforced in practice.

Balko quotes a particularly appalling recent example of racially biased sting operations by the Bureau of Alcohol, Tobacco, and Firearms (ATF). According to an investigative report by Brad Heath in USA Today:

The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.

At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.

The ATF operations raise particular concerns because they seek to enlist suspected criminals in new crimes rather than merely solving old ones, giving agents and their underworld informants unusually wide latitude to select who will be targeted. In some cases, informants said they identified targets for the stings after simply meeting them on the street.

The ATF had very wide discretion in these sting operations, and that discretion resulted in large numbers of people being enticed into committing crimes and then locked up. Upwards of 91% of those caged are minorities. This is outrageous. And it should cause liberals who support the ATF as an essential part of gun control enforcement to seriously reconsider their views. Rachel Maddow has condemned the NRA for calling the ATF “jack booted thugs” and blocking the appointment of ATF leadership officials. Given the ATF’s role in actively perpetuating systemic racism, I think liberals like Maddow should strongly reconsider their support for the ATF.

Prison abolitionists should lead the charge against gun control laws, and prevent the prison state from growing as part of a knee jerk response to tragedies like mass shootings. Dean Spade of the Sylvia Rivera Law Project provided a good example of what a leftist resistance to gun control laws might look like after the Newtown shooting, writing:

In the wake of the Newtown shooting, the issue of gun control is being framed in very selective ways that ignore the realities of violence in our communities. The truth is that the most deadly, in terms of numbers, gun owners are police forces and the US military. When we have a conversation about gun violence that ignores the realities of state violence, it often produces proposals that further marginalize and criminalize people of color, poor people, people with disabilities, immigrants and youth. In Washington State, we’re fighting against a new bill that would create mandatory jail time for youth caught possessing a gun. We know that mandatory jail and prison sentences are part of what has created the massive boom in US imprisonment in recent decades that have devastated communities of color. We know that jailing youth does not make our communities safer, it just damages the lives, health outcomes, and educational opportunities of young people.

Any discussion of violence in society needs to recognize that the state and its criminal law enforcement apparatus are violent. Anyone who cares about equality or social justice should recognize when laws, even those supported by people they like, have grossly unequal consequences. Understanding these points should help us recognize gun control laws as part of a grotesque prison state that exacerbates inequality and injustice.

Quando qualcuno commette un crimine contro qualcun altro, solo l’autore di questo crimine dovrebbe essere considerato responsabile. Non la famiglia o i compagni di camera, non quelli della sua razza o nazionalità, non quelli che condividono le sue idee politiche, non quelli che vivono nella stessa area geografica. La punizione collettiva è immorale. La Convenzione di Ginevra la considera un crimine, un’aggressione violenta che tutti quelli che tengono ai diritti dell’individuo dovrebbero odiare. Ora, in risposta alla morte di questi adolescenti, il governo israeliano ha deciso di commettere questo crimine.

Soldati israeliani hanno demolito le case di Marwan al-Qawasmeh e Amer Abu Aisheh, sospettati del rapimento e dell’uccisione. Questa punizione è avvenuta senza processo. La demolizione ha terrorizzato membri di famiglie innocenti e vicini di casa, e ha danneggiato i loro beni. Secondo la Reuters, “Prima di far saltare in aria la casa, i soldati hanno mandato in frantumi le finestre e scaraventato a terra i sofà. Hanno fatto a pezzi con una mazza il water e il lavandino, oltre ai gradini della scala uno per uno. Zucchero, yogurt e pane sono stati gettati sul pavimento della cucina.”

Questa distruzione gratuita non è stata d’aiuto alla cattura dei sospetti, né ha risarcito le famiglie delle vittime. È solo una distruzione stupida che terrorizza un vicinato e impoverisce il mondo.

E non finisce qui. Secondo Amnesty International, il governo israeliano “la mattina del primo luglio ha lanciato almeno 34 attacchi aerei in diverse località di Gaza. Ci sono notizie di feriti palestinesi.” Com’è facile immaginare, queste azioni colpiscono innocenti, lasciandosi dietro indiscriminatamente feriti, morti e distruzione.

Amnesty parla anche di persone morte per mano delle forze di sicurezza israeliane da quando è iniziata la ricerca dei giovani rapiti. Secondo il governo israeliano, uno dei morti, Yousef Abu Zagha, lanciò una granata; ma secondo la Associated Press “la famiglia dice che stava portando a casa delle uova per il pasto prima dell’alba, come previsto dal digiuno del Ramadan.”

La punizione collettiva non è una novità per lo stato di Israele. Da tanto tempo costringe il popolo di Gaza alla povertà con un embargo draconiano che divide le famiglie, priva le persone della libertà di cercare cure mediche, e impedisce quel commercio pacifico che potrebbe dare benefici e prosperità ad entrambe le parti. L’Onu ha condannato l’embargo come una violazione dei diritti umani.

Lo stato di Israele, inoltre, arresta arbitrariamente i palestinesi. Secondo Amnesty, sono “almeno 364 i palestinesi attualmente agli arresti amministrativi, un numero che non si vedeva da anni.”

E sono numerosi i posti di blocco che limitano la libertà di movimento dei palestinesi, a molti dei quali Israele demolisce le case per costringerli ad andare altrove e rubare loro le terre.

Lo stato di Israele cerca di giustificare tutta questa violenza nel nome della lotta al terrorismo. Ma è lo stesso stato che fa violenza alle popolazioni civili per terrorizzarle e raggiungere i propri scopi. Terrorismo è semmai la violenza praticata dallo stato di Israele.

Traduzione di Enrico Sanna.

When someone commits a violent crime against another person, the perpetrator should be held accountable. Not the perpetrator’s family or roommates, not those of the same race or nationality, not those with similar political views, not those who live in the same geographical area. Collective punishment is immoral. It is a war crime under the Geneva Convention and it constitutes aggressive violence that all who care about individual rights should abhor. But in response to the deaths of these teenagers, the Israeli government chose to engage in it.

Israeli soldiers demolished the homes of Marwan al-Qawasmeh and Amer Abu Aisheh,  suspects in the abduction and killing of the Israeli teenagers. This punishment was inflicted without trial. The demolitions terrorized innocent family members and neighbors and damaged their property. According to Reuters, “Before blowing up the house, soldiers shattered the windows and threw sofas to the ground. Toilets and sinks, along with every step in the staircase, were smashed with a sledgehammer. Sugar, yogurt and bread were thrown across the kitchen floor.”

This gratuitous destruction didn’t help apprehend the suspects, nor did it provide restitution to the families of the victims. This is senseless destruction that terrorizes a neighborhood and makes the world less prosperous.

The collective punishment doesn’t end there. According to Amnesty International, the Israeli government “launched at least 34 air strikes on locations across Gaza on the morning of 1 July. There have been reports of Palestinian injuries.” Such actions predictably harm innocents by causing injuries, death and property destruction indiscriminately.

Amnesty also reports multiple deaths at the hands of Israeli security forces since the search for the abducted teens began. While the Israeli government alleges that one of the dead, Yousef Abu Zagha, hurled a grenade, the Associated Press reports that “his family said he had been carrying eggs home for a predawn meal before the daylight fast for the Ramadan holiday.”

Collective punishment is not a new practice for the Israeli state. That state has long forcibly kept the people of Gaza in poverty with a draconian blockade which separates families, deprives individuals of the freedom to seek medical care, and forcibly prevents peaceful trade that could produce mutual benefit and prosperity. The UN has condemned this blockade as a violation of human rights.

The Israeli state arbitrarily locks up Palestinians, according to Amnesty, “with at least 364 Palestinians currently under administrative detention, the highest number in years.”

Checkpoints are used to restrict Palestinians’ freedom of movement. Palestinians’ homes are demolished as the Israeli state forcibly displaces them and steals their land.

The Israeli government seeks to justify all of this violence in the name of fighting terrorism. Yet the Israeli state is engaging in violence against civilian populations in order to terrorize those populations and thus achieve their political aims. Israeli state violence is terrorism.

Translations for this article:

• Italian, Punizione Collettiva e Terrore di Stato Israeliano.