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The Seen and the Catastrophic Unseen in Our Criminal Justice System

Remarks delivered by Radley Balko, Bastiat Award co-winner and unflinching witness, at last week's Reason Media Awards ceremony

Thank you. Thank you to the Reason Foundation, and to the judges who saw merit in my work and honored me with this award.

It's especially validating to get an award named after Bastiat—an award for which people like Milton Friedman and James Buchanan once served as judges—because I write about and report on the criminal justice system. People like Friedman, Bastiat, and Buchanan had a lot to do with how I arrived at this beat.

Bastiat is perhaps most famous for his caution that we should not merely consider the observable consequences of public policy, but the hidden and unintended consequences as well—what he called "what is seen and what is unseen."

Few areas of public policy better illustrate what he was talking about than the criminal justice system. After a generation of "tough-on-crime" policies, here are some examples of how what we see often obscures what we can't see.

We can see cops stopping and arresting people, roughing people up, and administering street justice. We think, 'Good. They're getting the bad guys off the streets.'

What we don't see: The orders from mayors and senior officials in cities like Baltimore, St. Louis, and Chicago for police to initiate mass arrests, usually for petty offenses, sometimes for no offense at all. We don't see the bulk of the arrestees who are later released with no charges, but who now have an arrest record that can be crippling. We don't see the mistrust and anger these kinds of police actions sow between police and the communities they serve—feelings that last for generations and present major barriers to fighting crime. We won't see if just as much crime—or perhaps even more—could have been prevented with a more rights-oriented approach to policing, an approach less apt to destroy lives.

We see stories about deportations of undocumented immigrants and we think, 'Good. We're taking people who don't deserve to be here off of public assistance, and sending back to from where they came.'

What we don't see: The net $2,500 per year that the U.S. economy loses for every immigrant denied entry. As of 2010, 40 percent of Fortune 500 companies were founded by either immigrants or their children. So we also don't see the Googles, the Yahoos, the Teslas, the Chobanis, the Amazons, and the Ebays never founded here in America — or perhaps at all — because nativist sentiment prevented some enterprising young immigrant from entering the country.

We see overflowing prisons and think, 'Thank goodness those dangerous criminals aren't free to hurt more people again.'

What we don't see: The catastrophic effects of mass incarceration on families, neighborhoods, communities, sometimes entire cities. We sometimes see the $80 billion it costs the U.S. to annually imprison about 1 percent of its population. But it's much harder to see what a recent Washington University study attempted to quantify—the social decay, psychological trauma, reduced earnings, despair, and otherwise wasted human potential that comes with mass incarceration. That study put the annual cost of incarceration at over $1 trillion, the brunt of that figure falling not on the incarcerated, but on their children, their families, and their communities.

We see cops pulling over the same people multiple times for traffic offenses, or for petty offenses like jaywalking, or not wearing a seatbelt. We're glad these people lose their driver's licenses, pointing to claims that these kinds of laws prevent highway fatalities.

What we don't see: Cities and towns becoming dependent on the revenue from these infractions, creating a predatory relationship between the governing and the governed. We don't see cops instructed to see citizens as little more than ATMs for the local municipality. We don't see the job interviews low-income people have missed due to a driver's licenses suspended over unpaid court fees, or a budding entrepreneur from a low-income area denied a business license because of arrest warrants stemming from unpaid fines over misdemeanors.

In "The Petition of the Candlemakers," Bastiat satirized the dangerous power of factions, who can manipulate the political process into approving policies that benefit the few at the expense of the many.

Here, we can see schemes like privatized probation. The goal of parole and probation ought to be to graduate people who have broken laws back into society. To rehabilitate them. When parole or probation is privatized, the companies that run them get their revenue from the fees they charge to probationers and parolees themselves. This means every success story for a former inmate—and for society—is one fewer paying client for the parole and probation companies. We've incentivized these systems to fail.

Finally, Bastiat was a brilliant and pointed critic of collectivism. In his last book, the late racial justice activist and commentator Ambrose Lane pointed out that Bastiat wrote "The Law" only about a decade before the Civil War, and his warnings to his French countrymen could just as easily applied to laws like the Fugitive Slave Act, the various slavery compromises, or later, Jim Crow.

"The law has been used to destroy its own objective," Bastiat wrote. "It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous, who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime in order to punish lawful defense."

We libertarians have too often been reticent to acknowledge the role race plays in our society and in our criminal justice system in particular. That's on some level intuitive. Race is a social construct, and a collectivist way of thinking. Libertarians are individualists.

But if the government is treating people in a collectivist manner, we as individualists need to speak up. We're obligated to speak up.

Photo Credit: Anthony Collins Photography

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  • Fist of Etiquette||

    This acceptance speech is a bit of a downer.

  • Quixote||

    Also deeply misguided. Everyone knows we're not supposed to "speak up" about certain little things. Surely, for example, the author wouldn't wish to disseminate information about the inappropriate "First Amendment dissent" of a single, isolated judge in America's leading criminal "satire" case? See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • xobofawa||

    I'm making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

    This is what I do... www.netcash10.com

  • SIV||

    Radley Balko joins the ranks of past Bastiat Prize winners such as Shikha Dalmia.

  • GILMORE™||

    You're saying Balko is the libertarian Ricky Martin? (gasp) Milli Vanilli??

  • SIV||

    After a generation of "tough-on-crime" policies

    Crime statistics are way down!

    This is the quantifiable social utility of public policy consequentialists want.

  • GlenchristLaw||

    Might as well call it the Echo Chamber Award,

  • DajjaI||

    This is all very true but we must also remember that with freedom comes responsibility. Yes we have the right to free speech, but that doesn't mean we should threaten to woodchip federal judges when they follow the law, misguided as it may be. It means we must speak out and change the law. I donated to the Reason Foundation even though I was banned for saying exactly this. Libertarians are not immune to the autocratic tendency.

    Jill Stein wishes a Blessed Good Morning to her Darling Drumpfencücken.

  • BillEverman||

    There's a difference between "threatening" someone and making a sarcastic reference. Was it also a "threat" when a commenter said they hoped there was a warm place in hell for the prosecutor? Because federal prosecutor Preet Bharara went after that commenter's information too. Most people figure that libertarians can barely get 1% of the vote, and yet the federal government thinks they're sitting on God's judgment seat!

    I appreciate that you continue to support Reason, but while the reaction to the whole woodchipper thing may seem predictable in retrospect, it was still unreasonable and a waste of taxpayer money.

  • ALWAYS RIGHT||

    Our economy is not "loosing $2,500 per year for ever immigrant denied entry". That is Libertarian dogma from a hundred years ago. Our country is settled. Our country is congested. Most immigrants are poor, brown, and take low-level jobs from our own.

  • some guy||

    You can't own a job or take a job from someone else. If an immigrant gets a job it's because they earned it by providing better value in labor. And who cares if they're poor or brown? What does that matter to anyone?

  • vek||

    Well, in a country where we have a welfare state it matters! In a country with no social programs one could shrug off the economic consequences as tough luck for the native guy not having a job because he won't work for lower wages like an immigrant... But in our system that just means that native born dumb white guy or black guy is going to milk the system, this negating any small gains anybody likely had from the cheaper imported labor...

    Sometimes it matters what policies go in first, second, third etc. I'm not in favor of mass immigration for a lot of other reasons, but open borders with a welfare state is surely a horrible idea.

  • Eric Bana||

    I'll give you a C+ for trolling.

  • Red Tony||

    ...so what you're saying is that we gotta keep people out so poor white people can have low-level jobs because it would be just horrible if poor brown people had a low-level job.

  • SchillMcGuffin||

    We might add: "low-level jobs that help keep prices for goods and services low so that wages, high and low, go farther". That, of course, runs contrary to Keynesian policies that equate inflation with increasing wealth, so it must not be spoken.

  • The Last American Hero||

    That was what Mr. Sanders was saying during the campaign.

  • BillEverman||

    Brown people?!? Stop scaring us!

  • mtrueman||

    "We're punishing individuals for the alleged sins of some larger groups with which they share only superficial features."

    Credit rating agencies, lenders and insurance companies do this all the time. They don't evaluate each customer as an individual, as a Libertarian would wish, but the evaluation goes according to a customer's membership in various collectivities, sex, age, neighbourhood, education etc.

  • some guy||

    Insurance companies are private entities that don't claim to represent all of society. They should be allowed to discriminate however they want. Government does claim to represent everyone, so it should treat everyone as individuals.

  • mtrueman||

    I don't see why someone 'punishing individuals for the alleged sins of some larger groups' should be given a free pass just because they don't claim to represent all of society. Either their behaviour is reprehensible or it isn't, irregardless of whatever claims they make.

  • some guy||

    I disagree, but let me make another argument. Insurance companies aren't punishing anyone. No one is forced to interact with an insurance company. You're free to take your business elsewhere. That's not the case with government.

  • SIV||

    No one is forced to interact with an insurance company.

    True. You can choose to be killed for refusing to be caged for not paying the fine.

  • mtrueman||

    "No one is forced to interact with an insurance company."

    That doesn't make judging individuals as members of collectivities any less reprehensible, does it?

  • BillEverman||

    Here's how libertarians work: we can find something reprehensible, but not believe that there should e a law against it. For us, the test of whether something should be illegal is whether it's an initiation of force or fraud against another person. If an insurance company's, or a restaurant's, or a florist's, or a baker's discrimination doesn't involve force, then whether I agree with it or not, I shouldn't demand that it be banned. But if the government is using someone's skin color as a reason to arrest, detain or otherwise treat people differentlly, then that is an application of force and should not be permitted. There is also the issue that our government's own rules say that it may not discriminate. We are all ostensibly equal before the law.

  • mtrueman||

    "Here's how libertarians work:"

    It doesn't work though. Americans have proved capable of discriminating against wide varieties of people for any number of absurd reasons. That's where these laws come in.

    "There is also the issue that our government's own rules say that it may not discriminate."

    I don't think this is the case. Both the government and and the business world have been punishing individuals for their membership in collectivities for years with impunity.

  • The Last American Hero||

    Yes they have, but the infringement on freedom is worse than the problem it purports to fix.

  • MarkLastname||

    Yes, it does. When you don't invite strangers over for parties, you're judging them unfairly for no reason other than not having met you yet. You judge people or institutions all the time based on group affiliation or non-affiliation; everyone does. What makes it problematic is when it's coercive.

  • mtrueman||

    "What makes it problematic is when it's coercive."

    The government and everyone else punishes you for your membership in collectivities. How are you being coerced?

  • mtrueman||

    " Insurance companies aren't punishing anyone."

    They charge extra not according to anything you've done as an individual, but which collective you belong to.

    "That's not the case with government."

    Is there something stopping you from pulling up stakes and moving to a place where government is more to your liking? Or where there is no government at all?

  • Some Engineer||

    They also charge less based on some of the same collectivist data.

    And individual behavior definitely plays into increased premiums when it comes to things like totaling your car, getting a DUI, having a house fire, etc.

  • mtrueman||

    "And individual behavior definitely plays into increased premiums when it comes to things like totaling your car, getting a DUI, having a house fire, etc."

    So does your sex, locale, education etc. This is my point. These outfits penalize individuals on the basis of various collectivities.

  • BillEverman||

    Good luck finding a place without government. What people are discussing is how to make the government better. Your best suggestion is that if you don't think the government should treat people differently because of the color of their skin, you should go find a desert lsland to live the rest of your days? That's a...novel solution.

  • mtrueman||

    Ever been to sea, Billy?

  • Philadelphia Collins||

    "irregardless"???
    Please stick to real words.

  • mtrueman||

    Free Speach!

  • JuanQPublic||

    Credit rating agencies, lenders and insurance companies do this all the time. They don't evaluate each customer as an individual, as a Libertarian would wish, but the evaluation goes according to a customer's membership in various collectivities, sex, age, neighbourhood, education etc.

    What an awful comparison.

    Insurance companies deal in a business/customer relationship that is voluntary in nature, in order to sell a product in which its costs are based in hypotheticals.

    Government institutions have an involuntary relationship with their citizens, and are supposed to serve that citizenry that ultimately owns them. Tax revenue is your money, not the institution's, and the ultimate government is the people- individuals who own themselves.

    Insurance customers have enshrined Constitutional liberties, and those liberties reflect self-ownership. The individual's privilege of being a customer of the insurance company is not protected by the Constitution, but their rights must not be violated by the insurance company- or government. Nor can that individual's rights infringe on the rights of other individuals, or the insurance company.

  • mtrueman||

    "Government institutions have an involuntary relationship with their citizens, and are supposed to serve that citizenry that ultimately owns them. "

    It's voluntary. You are just too chickenshit to do anything but moan and complain. And there's nothing in the constitution that prohibits government or commercial outfits from punishing individuals over their collective memberships.

  • MarkLastname||

    No, it isn't voluntary. What the fuck can anyone do to make it not voluntary? Stop huffing paint.

  • mtrueman||

    You are a free man. There are no armed government agents keeping you trapped within the borders of the USA. You may leave any time you wish.

  • vek||

    Here's the thing, statistics are real. Full stop.

    I don't think the cops should fuck with people just because they're black, that's wrong. But statistical probabilities are very important for making large scale policies and figuring out solutions to things. Some issues you simply cannot take on a case by case individual basis, or it would be prohibitively expensive to do so. Like the insurance examples used.

    So they look at statistics and use that as their starting basis. There's nothing unreasonable about this, and in fact humans have always HAD to use this type of thinking as a survival mechanism. In most one on one interactions people should treat people as an individual, but I'm not against using math to make decisions that otherwise can't be analyzed case by case. It's just how it has to be.

  • loveconstitution1789||

    The net $2,500 per year that the U.S. economy loses for every immigrant denied entry. As of 2010, 40 percent of Fortune 500 companies were founded by either immigrants or their children.
    Yeah, I'm gonna need a citation for that $2500 figure because it sounds like complete bullshit.

    As for the Fortune 500 companies being founded by 40% immigrants, weren't the largest portion of those companies founded in the early to middle 20th Century? Show does that number change with immigrants in, say, the last 30 years?

    Immigrant drive is one way to push innovation but really, how many modern immigrants are anything but poor and welfare queens? Not all immigrants are like this and that is why low immigration selection is the way to go. Get the best and brightest to come.

    Deport the illegals and enforce current immigration law, so foreigners know that America is not going to be taken advantage of anymore.

  • Earth Skeptic||

    If I remember correctly, the National Academies looked at the market and government economic impacts of immigrants, and concluded it was about zero-sum. (and I also remember that various media sources spun the results to fit their biases)

  • some guy||

    Damn those immigrants for being more willing to work for a living and at lower wages than native Americans. Damn them for taking the jobs that we earned by being lucky enough to be born on this side of an arbitrary line in the dirt!

  • vek||

    It's tough luck, but the alternative is that no first world country on earth could exist... So I'll take my lucky position in life and deny those poor bastards entry. The rest of the world is improving rapidly, so it's not like condemning them to death or anything in 99.9% of cases. In fact there's largely more opportunity for growth abroad than in the USA nowadays. If I wasn't such a The West Is The Best sort I'd probably move abroad like many soulless globalists are, because that's where the opportunity really lies in the 21st century.

  • JuanQPublic||

    Immigrant drive is one way to push innovation but really, how many modern immigrants are anything but poor and welfare queens?

    Immigrants comprise about 13-15% of the population, yet immigrant entrepreneurs start about 25% of new businesses in the US.

    Also, to even approach the immigration issue rationally, you have to differentiate between legal and illegal immigration.

  • Red Tony||

    JuanQ putting it up on 1789! Nice one!

  • vek||

    Legal immigrants are the ones that have all the good stats, mainly because they're more educated, better behaved (hey they obeyed the law when moving here!), etc etc etc. Illegal immigrant stats are far worse. The average education level of an illegal Mexican immigrant is 8th fucking grade... 8th grade for fucks sake! We REALLY need more people who never even made it to freshman year in a 21st century economy don't we??? It's ridiculous.

    I'd be for illegals the number of businesses started is probably far less than average, and many of the businesses started are probably very low level service businesses like lawn care, janitorial services, an ethnic grocery store, etc that aren't really bringing much to the table at any real level.

  • Warren||

    Way to go Balko, the single best investigative journalist ever.
    Your words are wasted on the likes of Huf-Po, Wa-Po, X-Po.
    Come back home.

  • some guy||

    I think it's good he went over there. Those readers need to see his work more than we do.

  • SIV||

    Yeah, until Balko came along they never knew "libertarians" were down with identity politics.

  • Eidde||

    "Some of these towns had black mayors and city councils. That suggests that some of these problems aren't the problems of individual actors, but of systems as a whole. As libertarians, systemic racism should infuriate us. Instead, we too often tend to question its very premise."

    Yes, if I see governments run by black people act oppressively toward other black people, I question the premise that systemic racism is the culprit. A more economical explanation is that it's the rulers/ruled dynamic which is behind governmental oppression whether race is in the picture or not.

  • Eidde||

    In countries where the rulers are the same race as the ruled, you don't necessarily see a freer society. Indeed, you sometimes see a class division, not a racial division, between rulers and ruled. You also sometimes see the ruling classes use misdirection to shift attention away from its own behavior and onto some sinister "other," like another country, another race, etc.

  • Eidde||

    Sometimes the misdirection is actually a sincere belief by many people, among both rulers and ruled, that the struggle against the (real or imagined) other is simply more important than whining about the royal rogering the ruled are getting at the hands of their rulers.

  • Red Tony||

    I often suspect that what gets portrayed as racism in America is really more classism: the poor get fucked because nobody cares about them, and they're just more likely to be black because of historical racism that fucked over their initial life circumstances.

  • Eidde||

    Yeah, and politically speaking, I think you get more milage with a (non-Marxist) discussion of class - that is, not the 1% vs. the 99% but the politically connected versus the unconnected, especially the poor.

    It's unfair and unproductive to go on about "OMG white people suck and they make the police in (say) Baltimore behave badly! Let's block some commuters on their way home from work to make our point!"

    But you'll resonate with a lot more people if you say "look, we all know that if you aren't in good with the government you have a greater chance of getting screwed, especially if you don't have enough money to fight the screwing."

  • Philadelphia Collins||

    The poverty rate among people who finish school, get a job, get married, and then have children, is 3%. The poor fuck themselves.

  • vek||

    Yup. I've never met a poor person where I couldn't point out exactly all their idiotic mistakes almost instantly.

    NOW, in all fairness many of them are simply low IQ morons who almost can't help it... But there's nothing to be done about that. Plenty of other low IQ people hold shit down and do just fine. Probably the dumbest kid I went to school with (other than the kid with down syndrome) makes better money than most people in this country. He's as smart as a box of rocks, but is of good character and went into a skilled construction trade like his father, who was also not very sharp. He makes good cash now and is a fine upstanding citizen. Being dumb is still not an excuse IMO.

  • SIV||

    Sounds like somebody needs to visit the re-education camp. Minorities only oppress other minorities because they've internalized the oppression of white culture.

  • JuanQPublic||

    Actually, human history shows that the oppressed very often become the oppressor.

    Which makes collectivist thinking absurd in regards to social issues and with individualism transcending them.

  • vek||

    This is what I'm worried about... All the minorities in this country REALLY seem to not want equality, but rather to turn around and oppress white people. They've had equality for decades IMO, now they just want revenge.

  • Barnstormer||

    In consecutive paragraphs, Radley conflates illegal with legal immigration. Is this from the liberal playbook?

  • The Last American Hero||

    No it's from the Reason playbook, which only has 3 plays -

    Mexicans

    Pot

    Ass Sex

    All that free market stuff and individual stuff is just negotiable.

  • JFree||

    The systems themselves need to be changed. Uprooted. Recalibrated.

    I'm finding this true more and more - and not just about the legal/police stuff re race. Balko doesn't want to think like a collectivist but individualism actually first requires a collectivist thought - That WE are WE.

    No individualist ever actually ignores or goes beyond the We/Me v They/You divide. This is part of our brain - part of the way we see the world. So deep that all human languages (afaik) are based on those closed-class function words - not on object/content words like nouns/verbs/etc. And the human BS detector is VERY attuned to anyone (read they/you) who tries to manipulate us/me using those function words.

    eg - NAP is just a convoluted way of saying - What's mine is mine and what's yours is yours. And that requires an implicit understanding - that WE are WE. WE are the group around whom these rules are expected to apply. WE don't expect THEY to adhere to that anymore than we expect a lion (they) to view OUR children as anything more than a snack.

    Expanding the WE group is/was the primary ideal of the classical liberal experiment. To include more and more of those who previously had been nothing more than property/serfs/slaves (objects) or THEY. Including THEM in WE is liberty. Most domestic conflicts even today are little more than fundamental (though perhaps just lazy) disagreements about what We/They means.

  • GILMORE™||

    The net $2,500 per year that the U.S. economy loses for every immigrant denied entry.

    like the millions and millions that i lose every year by not winning the lottery.

  • Hank Phillips||

    Individualists have spoken up. All those people who are framed, beaten, shot or tarbrushed for life over victimless "crime" usurpations have the perfect opportunity to vote libertarian in every state. True, Dick Nixon and the IRS pay print and broadcast media millions if not billions of dollars to subsidize brutish looters. This gets them to ignore the parties whose votes repeal 6 to 21 times the bad laws. Once voters quit being suckers for politicians and begin voting for their own interests, putting Americans first, politicians will continue to have them robbed, beaten and killed.

  • Red Tony||

    ...I'm sorry, but WHO ARE YOU EXACTLY? I see you around these parts all the time, usually after everyone else has left, and I NEVER have the foggiest idea WHAT you're talking about. So, uh, WHO ARE YOU?

  • Verbum Vincet||

    This is a great comment which mostly makes perfect sense to me (Nixon?). I couldn't care less who wrote it, but I hope this individual is spreading these sentiments among the little people!

  • Hank Phillips||

    Zerohedge is my go-to resource for information on the flash crashes and general economic collapse brought about by asset forfeitue prohibitionism. You guys do impeccable work. Search out "Libertarian Party Jurisprudence" for a peek at how successfully LP spoiler votes have already worked to repeal bad laws. All anyone has to do to repeal bad laws is vote for the platform that offers the best laws. David Nolan changed the world.

  • Hank Phillips||

    Until voters...

  • The Last American Hero||

    Odd that Balko got the award when he writes about police abuse and it was Reason's refusal to investigate an instance of police abuse that began the exodus...

  • Mitsima||

    So even with Black mayors & Black city councils, Black people are still "oppressed", but it's not individual racism, but "institutional racism" - the very same institutions that the Black city council and the Black mayor (and often Black judges, prosecutors, cops, "civic leaders', clergy, activists, to say nothing of the voting majority) have the power to change? And you seriously wonder why anyone, let alone individualists, question the premise of "institutional racism"? Well, alrighty then.

  • Just Say'n||

    You can't just say there is systemic racism in the system without providing any evidence of such an accusation. The lazy route of identity politics that cosmotarians are fully embracing is the opposite of being an 'individualist'. And the fact that they make this assertion without providing any evidence shows that they have fully accepted the Left's notion of 'feelz before realz'.

    There is a systemic disadvantage toward the poor. Some minority groups comprise a disproportionate amount of the poor. No one disagrees with this. Asserting that this has to do with race rather than class and income is intellectually deficient and lazy.

  • fafalone||

    Yeah, study after study has proven no difference exists between groups of races at the same income levels. Oh wait...

  • vek||

    Much needs to be changed with criminal justice in this country, no denying that... But this is way too touchy feely bleeding heart for me. It's totally accepting a bunch of, IMO, incorrect left wing proggy boogie men too, which shows bad reasoning/logic. We should reform things in massive ways, but with more just laws on the books there is nothing wrong with coming down on criminals and thugs violating genuinely fair laws like murder, rape, theft, etc. I get the feeling this guy is the sort of person who things armed robbery perps should be given shorter sentences and coddled more... I'm not into that shit. Kill the drug laws, prostitution, etc, but real criminals should be punished harshly for their crimes.

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