Further arguments and details from A Comprehensive Reboot of Law Enforcement.
- On demilitarizing law enforcement:
Several respondents suggested equalizing the weaponry available to non-special-unit law enforcement, and the weaponry available to citizens; with both police and citizens being required to undergo identical levels of screening / training / certification before being allowed to own or carry such weapons.
This makes sense to me personally as a suggestion. At least on the surface, it sounds like a prudently adapted US version of the proven UK practice of having police officers not carry guns outside of special units with special training, modulo the different gun control laws that exist in the US. The combat rating of a US resident may not be the same as the combat rating of a UK resident, to phrase it in a perhaps unduly self-flattering way.
However, my actual grasp of the tactical situation in typical police-emergency situations, and my grasp of the actual laws on gun control and requirements thereof, is not enough for me to feel comfortable actually endorsing this parity principle. It could be nonsense for reasons I don’t know about.
I feel less uncomfortable in suggesting that any law enforcement situation believed to require machine guns should be handled by calling in an emergency state-level unit with special training to safely handle automatic weapons fire. It should be very rare that the police are worried about being outgunned, and any such concern ought properly to call in a state-level Special Weapons And Tactics team, not be improvised by regular police wearing body armor and carrying assault rifles.
- On zero tolerance for deaths of unarmed persons caused by interactions with law enforcement:
This policy has costs, and will catch the careers of some innocent law enforcement officers in the crossfire when somebody has a heart attack despite the officer genuinely trying to be gentle. I think that’s a price we should be willing to pay at this point.
Is it, in fact, a statistically rare event that a police officer kills an unarmed civilian? Perhaps. I haven’t bothered looking up the statistics because I think that’s genuinely not a crux for me. Fear of law enforcement is a real factor in a society, as is its converse, trust of law enforcement. If a few rare incidents are being amplified on social media — even if that’s what’s actually going on, and I haven’t bothered looking into statistics, because I don’t think it matters at this point — we still have to restore trust, and a sharp stern line seems helpful to that end.
I am fundamentally on the side of any faction, group, or just plain people, whose only request is “Please stop killing us.” If the response is “But we aren’t killing most of you most of the time, statistically speaking,” I also support their further request “Please kill us even less often” or “Please kill us so infrequently that we no longer feel afraid.” If this requires an extremely low frequency of killing, or harsh public penalties for killing them, so be it.
“But the zero-tolerance rule permanently ends a law enforcement officer’s career! Won’t they be very afraid of doing things that even might cause the death of an unarmed suspect?” Yes, well, you see, the death of an unarmed suspect also causes a permanent end to someone’s career. So it is not a disproportionate burden if police officers end up tiptoeing around that possibility.
That said, this reform does not make it per se illegal to strike, tase, or even shoot an unarmed assailant — it just means that, if the unarmed assailant dies, the officer no longer works in law enforcement, period. This doesn’t even necessarily make the officer a bad person in every case where this happens; maybe the unarmed person attacked violently and first and the police officer aimed for a leg and missed. The uniform penalty still sets up appropriate incentives, and removes the riot-inducing specter of bad police officers getting off scot-free to try again; people should know there is a minimum severe penalty that is always applied.
A surprising number of respondents seem to believe that police officers cannot possibly get along without frequently using potentially lethal levels of force on suspects not visibly armed. This does not strike me as very compatible with the fact that, for example, British police officers do not carry guns, and this seems to work fine.
- On requiring body cams with teeth:
I am skeptical of studies that purport to show body cams ineffective; they have been studies of low-res optional body cams without teeth. Other studies purport to show greater effectiveness. But I remark in any case that body cams are protective of truth in law enforcement, not just the number of unarmed persons shot; and this truth is something that matters increasingly these days.
Undercover investigations requiring an absence of body cams should be carried out only by a specially trained department of a state-level investigative agency (which of itself makes no arrests, and carries out no prosecutions); and all such undercover operations should be under the direct signature authority of an elected official. Like firing an automatic weapon, clandestine operations should be rarely deployed; they call for specialists; and they are potentially damaging of community trust if handled incorrectly. They should not be delegated to ordinary police officers carrying a wire. (One also gets the impression that most current “sting” operations are directed at victimless crimes, and that cutting way back on victimless criminalization would allow cutting back on sting operations as well.)
A practical version of any law like this requires considering how both rogue police elements and criminals might deploy new strategies of their own in response to any laws. So:
“Body cams with teeth” must continually upload a low-res, maybe very-low-res, version of the data — to a cellphone network if cellphone networks are available; otherwise to a recorder in a nearby squad car, which uploads as soon as the squad car reaches a cellphone network. This data in turn needs to be hashed by a cryptographically secure one-way function, and those hashes publicly broadcast where they can be stored by public-interest parties. This, without directly revealing the video, lets any later party verify that a revealed low-res video matches the hash previously broadcast.
Why? To try to hedge off two possible strategic replies by the twin adversaries of clever police departments and clever criminals:
- Video-faking technology is continuing to advance. We don’t want a rogue police department to have the ability to, at their leisure, fake a different video supposedly recorded by a body cam.
- We don’t want criminals yanking the body cams off police officers during grappling and crushing them.
Immediately and continually uploading the low-res video, with publicly broadcast hashes, lets us check that a purported high-res video matches the low-res video whose hash was publicly broadcast, which helps to prevent fakes. And if a criminal leaps forward and grabs the body cam, we can see that on the low-res video, even if the high-res storage was crushed.
If, in the future, the technology arms race gets any more complicated than that, we can deploy new laws at that time. Specific law in such cases, as and when such law is needed, should call for defeasible skepticism by the court toward the assertion that the unarmed poor suspect had a body-cam-defeating device which self-destructed after his mysterious death during a police incident.
We will have some time and possibly quite a long time before devices like that become common or plausible. Meanwhile the nation may have some time to heal. The fact is, reality often does not jump straight to level N of the most elaborate consequences we could imagine; reality takes time to get there and quite often goes somewhere else. Low-res continuous uploads with public hashes seem like they should go a long way towards preventing the simple and obvious next steps in the arm race, like a criminal trying to rip off the body cam and crush it, or a police department trying to forge different footage.
With all of that said, body cams are ultimately an attempted technological solution to a political problem. The government doesn’t have a great reputation about implementing those well, even leaving aside other difficulties. As somebody who at least slightly understands technology at all, I’ll go ahead and write out some specific basics in hopes somebody doesn’t just wantonly leave them off:
- A bodycam must record in at least FHD 24fps, stored in a removable card on the cam.
- A bodycam must contain a separate, integral, non-easily-removable, Write-Once-Read-Many card, to which hashes and timestamps of the HD data are continually written.
- Bodycams must continually upload encrypted low-res (eg 60x120 grayscale 12fps) data to a cellphone network if one is available; otherwise to a sealed receiver in a patrol car, which will timestamp and retransmit as soon as a cellphone network is available, or retransmit to satellite once SpaceX gets their network up.
- The receiver for this low-res data must permanently store it, and publicly broadcast signed and timestamped hashes of this data, as computed by a cryptographically secure one-way hash function.
- Bodycams must be waterproof, to avoid their being disabled by thrown water or rain.
- It is desirable that bodycams have enough of a hard shell to resist at least the crushing force of an unaided hand or a fall.
- If concerned about accidental malfunction, there is no reason police officers cannot wear more than one bodycam at a time.
Such bodycams may effectively be procured by:
- Writing up a short requirements spec of no more than 5 pages, and offering to buy from whichever startup succeeds in making such cams cheaply and quickly.
- Carrying out the above process at a federal level, rather than having all 50 states write up their own 500-page demands for different kinds of poorly designed body cams.
Since the above procurement procedure is impossible to the modern US government, it would not be surprising to me if our current government simply lacked the state capacity to procure working body cams via its usual methodology. We can’t assume that the US government is capable of doing things that any medium-sized technology company could do with ease. If so, further protests may be required to get the government to go to such extreme lengths as picking any successful Silicon Valley technologist, giving them a $100,000,000 budget and telling them to get a factory line set up in the next six months.
Seriously, you could ask Elon Musk to do this and he’d say “Okay” and delegate it to a subordinate and a few months later it would be done.
(This would also work for getting correctly designed voting machines with paper trails, in the counterfactual case that anybody cared about preserving democracy and trust in the USA.)
I finally note that body cams interact with decriminalization. If you don’t decriminalize drugs, good cops wearing body cams will have a harder time not noticing when they have to enter some innocent person’s house and there’s a blunt lying about. To put it another way, with more cops wearing body cams, good cops within the system will have a harder time mitigating the damage done by overcriminalization by pretending not to notice things. Alternatively, I suppose we could start with the body cams, and segue into decriminalization by way of riots over body-cam footage of white people not getting arrested.
- On completely disentangling punition from revenue and comprehensively de-privatizing police, courts, and prisons:
I view all of the details here as being governed by a central principle that governments should act like governments and not like for-profit companies. No element of government should act like it is trying to pay its electric bill and make a profit by charging citizens fees. Conversely, no for-profit company should have a legally captive customer that can be charged anything the company wants.
Consider a spouse trying to get a divorce — this person being a “captive” who cannot reasonably continue living their life except by going through this government operation. Why is this person being charged a regressive $450 divorce fee at a time in their life when they may be most vulnerable? Did the legislators decide to impose a $450 tax to discourage divorces? Does the county marriage office need to keep its lights on and make a profit to return to shareholders?
Not just fines, penalties, and forfeitures, but most fees in general being extracted by governments, are nothing but mistimed, regressive, and unfair taxations, often falling with particular force on marginalized members of society at exactly the wrong time. We would be establishing good incentives by having all fees on non-optional government interactions being required to go into a general pool that’s refunded to all tax-filers annually. (I am greatly indebted to Andre Infante for suggesting and possibly even originating this idea.) This should not include, say, visiting a state park or going to a city zoo; but it should include, say, paying a business-license fee to set up a hair salon. Any cost you can’t realistically avoid paying as you go about your life, where the payee gets to set whatever cost they want, is not a price but a tax. Most taxes should not be regressive flat fees that fall on some individuals but not others.
This may sound like a lofty abstract liberal-economic principle. But this general principle is what lays out the particular details required to completely disentangle punition from taxation, completely de-privatize law enforcement, remove government powers from private companies, and stop government agencies from acting like for-profit corporations. The general guideline is simply that no element of a government, nor companies that operate as non-optional elements of a government process, should have both the power and the financial incentive to extract money from citizens; this should only happen in a single part of government, the tax authority, under the control of duly considered tax legislation. Every violation of this principle creates a new element of society that can take a predatory attitude towards citizens, treating their wallets as meat.
This principle is being violated if, for example, one of the terms of your parole is that you must pay $10,000 to take certain classes — where this is apparently a thing that happens. The clue that something is wrong is that somebody, somewhere, can say “Hey, let’s charge that person an extra $500” and there is nothing the resident can do about it except go to jail; and then that somebody gets to keep the $500.
Every time a person has to incur a cost of $500 or go to jail, it should either be part of their income tax or some other explicit scheme of taxation, or the money should go into the generally refundable pool returned to tax-filers annually. It shouldn’t go to the government, because then the government gets confused about how taxation works. It definitely shouldn’t go into the budget of the governmental element that sets the fee! And under no circumstances should the money be pocketable by a for-profit private company, because then they may simply loot as much more per year as they can get away with.
We want to minimize the degree to which the relationship between government and citizen becomes one of predator and prey, at all levels of government and in all parts of government; but especially with respect to the most vulnerable and marginalized people. We want to eliminate the financial incentive, at all levels and in all parts of government, to have more convictions, more fines, more penalties. We prefer there be very few people in the government, and preferably nobody, who has a better day and a bigger budget when there’s more ‘crime’. The easiest prey for them will very often be the people who are already the most vulnerable and marginalized.
This is the logic we follow to shut down the (Mafia-owned) towing companies that grab some poor person’s car and charge them $1500 to get it back — this being one of the largest nightmares in practice, in actual daily life, for people living on the edge. It is not an optional interaction: the person has to either pay the $1500 or lose their car, without being able to opt out, without having chosen to form a relationship with the towing company, and with the event having been initiated using special legal powers that were delegated to a private company.
The $1500 is being extracted using the power of government. It is then straightforward that the towing company ought to be a public agency, rather than a (Mafia-owned) private company pocketing the money. That much is obvious; tax money should go into public coffers, not private coffers; nor should private companies ever be allowed to get their hands on the extractive powers of government. But we can take the logic a step further; why give a government towing agency the motive to predate on the public? Why let its manager have a bigger budget and nicer offices when they tow more cars, including some cars that maybe weren’t actually that close to somebody’s driveway? Let the towing agency derive its budget from the city’s general fund, as set by the city’s elected officials; and whatever fines and penalties it exacts must go into that general fund. It’s not a for-profit company, so why incentivize it to behave like one? Especially when it’s been delegated state power to do as it pleases with its “customers”?
And then another step: why give the city level of government an incentive to tow more cars? Let all the revenues go to the state level! This is the logic we follow to shut down the small town in Nowhere, Maryland that has squatted on top of a state highway and imposed speed limits of 15mph on the main street through town. Could anyone possibly be naive enough to believe that they are motivated by a purehearted concern for the traffic safety of the dear truckers passing through? “But the law is the law!” you cry. “They’re just enforcing the laws as written!” Yes, and when the laws are all made by angels in heaven and are so perfectly designed that no greedy person can possibly exploit them to make an extra buck at somebody else’s expense, we will never need to worry about laws being exploitable by private companies or rogue elements of government. Until then, however, we need to worry about systemwide incentives, and not just assume that things are fine so long as nobody is explicitly disobeying whatever laws already got passed. The fact is, a lot of laws are very poorly written. So we need to consider systemic changes that widely and systematically discourage greedy elements of the system from exploiting poorly written laws to predate. Not least because predators will often focus their predation on the most vulnerable people, who can least afford the time or money to resist.
So we transfer the traffic fines exacted by Nowhere, Maryland to the state coffers. Mysteriously they are suddenly nowhere near as enthusiastic about enforcing traffic laws, despite their deep and sincere concern for the safety of drivers and the majesty of the Law which is the Law. One acknowledges that if carried out systematically, this policy will require some adjustment of the relative tax burdens at city/county/state level, or in the short term some transfer payments, to be written into the legislative bill.
But now we think again: why give the state itself a financial incentive to create more criminals, maybe with a wink and a nudge towards the city of Nowhere? Let the traffic penalties go into a refundable pool of all punitive exactions, to be returned per capita to tax-filers at the end of the year. That way nobody will confuse the job of setting a law-and-order-maintaining punitive fine with the job of raising tax revenues for some level of government. Nobody has been given an incentive to behave in a predatory way towards often-poor people who can be ticketed to loot their wallets. If we actually want to punish people who double-parked, we can consider alone and separately how hard society ought to punish that deed, without being tempted to hurt people a little bit more for a little bit more gold.
Once you’ve grasped this principle in full generality — do not give the government a financial incentive in punition, nor permit profit-seeking entities to wield the extractive powers of government — the further consequences for law enforcement follow automatically. Here are some explicitly listed ones:
- Outlaw private prisons. A prison must intrinsically wield punitive powers and deadly force. If operated for profit, it has great financial incentives to mistreat its captive inmates in any corner of the system not being monitored. It cannot and should not be privatized in principle, even leaving out the horrific consequences observed in practice.
- All revenues of prison labor must either accrue directly to the prisoner or to the state-refunded pool. Otherwise some level or aspect of government would have a financial interest in increasing the number of prisoners; or even worse, some private company!
- Outlaw contracts with any private agency supplying any kind of good or service used in punition, where the contract says that the government needs to have at least 10,000 prisoners or pay a penalty to the private agency. (It’s amazing this is even a thing, but a thing it is.) Don’t create financial incentives to have more criminals, even from scratch by way of stupidly designed contract; this should be, not just frowned upon, but against a federal law.
- Prisons must supply adequate caloric intakes (3000 calories/day, 120g protein, all necessary nutrients and micronutrients) without further charges to prisoners. All further revenues of the prison commissary, if one still needs to exist, must go to the refundable pool. Otherwise, some element of government would have a financial interest in making the default prisoner diet worse. If the government decides to make the lives of inmates hellish in this particular way, it must do so for reasons of considered retribution as a matter of justice, without having any financial consideration in making their lives worse. The state may sometimes have an interest in hurting people; it is never to be given a financial incentive to hurt people more.
- Outlaw at all levels of government anything resembling a quota for fines, arrests, prosecutions, convictions, or total sentences. Outlaw job evaluations which take those as metrics. This would otherwise constitute giving some part of government an incentive to increase or maintain the number of criminals.
- Prosecutors must not be evaluated on a record of successful prosecutions. Given the way that this has played out in practice, and voters themselves not being perfectly farsighted, it seems wiser to have an elected office that supervises prosecutors without that elected official themselves engaging in prosecutions. Prosecutors too often try to brag to voters about successful prosecutions; and voters, who are not focusing infinite attention on elections, do seem to often fall into the fallacy of thinking that a prosecutor is like a gear in the machine whose goodness depends on how often it successfully prosecutes things.
- And the notion that police departments get to seize cash from people and then keep it for that police department’s budget is absolute catastrophic stupidity from beyond the pale. What the hell were they thinking? You couldn’t possibly have a more straightforward recipe for turning police departments into medieval highway bandits.
Now having come this far in our reasoning, we could also go further, and apply the same logic to a $450 fee for getting a divorce. Once we’ve snapped out of the trance where we’re imagining that the county court office needs to extract revenue to pay its electric bill, we may realize that we do not, in fact, need to take people often going through a difficult and vulnerable time of their lives, maybe trying to get away from an abusive spouse to safety, and pick that exact moment to demand that they cough up $450 or stay legally bound.
Now maybe — it’s not actually true, but we could imagine it true — society thinks there are too many divorces, and wants to establish a $450 penalty for having one. But if so, we should separate the government’s motive to impose a social penalty discouraging divorces, from the government’s desire for revenue; let the government impose less regressive taxes than that, if it wants revenue.
So the fee (penalty) for getting divorced, if such a fee exists, should also go into the refundable pool that gets returned to tax-filers annually. A divorce is not an optional interaction. It isn’t even something we’d want to discourage, once we realize that the fee was just a bad tax. It was just a random point where the government was extracting a random amount of money from somebody trying to live their life.
This is not to say that there should not be any fee to, say, register and license a hot-dog stand. Getting this license does burn non-zero government resources; perhaps, to prevent denial-of-service attacks by adversaries, it shouldn’t be literally zero-cost. But this fee should be set by somebody thinking “Huh, how much do we as a society want to penalize hot-dog stands to avoid denial-of-service attacks?” rather than some office trying to balance its budget. So, to ensure that this licensure is not confused with the operation of raising revenue — that it does not operate as a crude, regressive, ad-hoc, ill-timed, expensive form of taxation — we take all the fees like this, and put those fees into a pool of money that is refunded to all tax-filing residents at the end of every year.
The power to forcibly extract money and the profit-motive are like liquid hydrogen and liquid oxygen — an incredibly dangerous and volatile combination that should only be allowed under extremely restrictive circumstances, in the heavily armored combustion chamber of explicit tax legislation. Outside of that one special case, elements of government with extractive power must not be allowed to keep extracted money, and private companies must not be allowed extractive power.
Back when human beings were themselves prey of creatures such as wolves, we made up stories about why wolves hated humans, or why wolves were forever slaveringly hungry due to some curse. But this is not why predators predate. Predators don’t predate out of hatred for the prey, out of a sadistic desire to hurt prey. They predate because they desire food and the prey is there to be eaten. It is something of self-centered thinking on the part of us prey, if we humans make up stories about how much the wolf hates us; from the wolf’s perspective it’s not about the human, it’s about the human being made of meat. Imagining that the wolf hates us is overstating how much the wolf respects our individuality. Similarly with a story about how a predator is starving; this also presumes too much respect for the prey, for the prey to imagine that the predator must be desperate. To a predator, it just seems nicer ceteris paribus that the prey be inside its stomach than outside. What the prey did wrong was simply to be made out of meat.
This is the paradigm within which we need to understand some bureaucrat or other element of government deciding to set a $450 fee for filing a divorce. This fee is not being imposed out of hatred for somebody trying to flee her spouse. It’s not being imposed out of the bureaucrat’s desperately thin budget. The bureaucrat doesn’t even get to personally take home the money. It’s just that the $450 seems nicer to the bureaucrat being part of his budget than not being part of his budget, in a way that has nothing to do with the desperate woman trying to get a divorce at all. Who doesn’t like having a larger budget? To a wolf, those many years ago, a human’s meat seemed nicer inside its belly than outside. That’s what a predatory relationship is. You cannot fix it by imploring the bureaucrat not to hate the woman getting a divorce, because he never hated her in the first place. Her wallet was just there to be emptied.
You can’t fix the predatory relationship that police and other government elements have toward marginalized people, by enjoining police and other bureaucrats not to hate them. You have to make people’s wallets stop being filling. Any attempt to swallow them should result in the money passing straight through and out of the predator’s system.
Enacting the complete version of this reform, including with respect to divorce fees, does not have the same priority as getting the predation out of law enforcement, because law enforcement is among the worst and most potentially vicious parts of government when it starts to go predatory. There is an extra level of the nightmare when you’re being predated on by something that has a gun, or being predated on while you’re locked up and can’t get away.
My guess is that it will end up wiser to prioritize passing this reform about law enforcement alone. The main potential reason to try to impose the fully general version including divorce fees, is if that turns out to be actually simpler to write up as legislation, compared to trying to enforce the principle on only things labeled “law enforcement”. Or if people have enough of an attack of sanity to realize that regressive $450 divorce taxes are often bad particularly for people already living awful lives, and that giving the whole system a systemic disincentive to stop doing that is also important. Maybe it would help with the riots if we could manage to successfully focus for a bit on making the lives of not-very-rich people be less awful in general?
But understanding the general principle is important for anyone trying to write detailed legislation applying that principle over all courts and law enforcement and incarceration, and all government powers of exaction currently delegated to private entities that predate on marginalized people. Which is why I went to some lengths to describe the real and abstract principle here.
- On comprehensive decriminalization and restoring disparate enforcement as a reason to overturn laws:
These items are obviously a package deal with restoring real trials; if you want to restore the Constitutional right to a trial, you can’t have quite so many ‘crimes’.
They’re also part of a general agenda of changing the way that the government relates to some of the most marginalized people.
The point that certain ‘crimes’ are victimless and therefore ought to be first on the chopping block for reducing the amount of ‘crime’; and the point that we have to reduce the amount of ‘crime’, in order to start giving people trials again, and in order to reduce the USA’s vastly outsized incarcerated population per capita — these points are a shallow take on why we need comprehensive decriminalization. The deeper take is something that I don’t think I can easily do justice to myself, and a fair amount has been written about it already. But roughly speaking:
Back in the 1910s, it was noticed that people sometimes overdosed on alcohol and died, or got drunk and wasted money and beat their spouses. That was a tragedy indeed; and in 1919, the 18th Amendment, aka Prohibition, was passed to stop this tragedy. Initiatives like this can never be completely about pure altruism; there was, no doubt, a great element of self-righteous puritanism involved in the original Prohibition — an element of looking down at those Other people getting drunk, and clutching one’s pearls in self-satisfied horror at their immorality. But there was also real tragedy and real compassion; there were people who did not want to be alcoholics, and who were saying, “Please help me stop being an alcoholic.” If Prohibition had worked, on a fundamental level — if contrary to fact, Prohibition had successfully stopped alcoholism, with no significant negative social side effects — then I would not consider repealing Prohibition today to be among my priorities. An infringement on individual liberty? I suppose. But I would put it very down low on my list of things to act on or even talk about, if all there was to Prohibition was nobody being allowed to get drunk ever, with no other significant social costs.
But what we actually found in practice was that Prohibition wasn’t effective at preventing alcoholics from existing. Instead, an underground economy emerged and helped fuel the creation of the Mafia. An ‘illicit’ market (funny how Wikipedia doesn’t say ‘illegal’ or ‘criminal’) swiftly grew to two-thirds of pre-Prohibition levels. A whole lot of people kept on drinking, and so the sad people who’d been alcoholics were now still alcoholics and poorer alcoholics, and also dealing with ‘criminal’ suppliers.
There is a damage done to a community’s moral fiber by making a widespread behavior a victimless-‘crime’. You did not have to be evil to refine alcohol or buy from people who did, the way you had to be evil to stab somebody to death for their wallet. You didn’t have to be evil to make moonshine or buy it. Suddenly a lot more people had an acknowledged ‘criminal’ in the family. Those families, of course, would stop inviting police officers to their barbecues — unless the police officer was not only corrupt, but known to be corrupt. But hey, you didn’t have to be evil to be the kind of police officer who accepted bribes to let a moonshine distillery keep running, right? Or at least, you didn’t have to be the same kind of evil that would be required to take a bribe to let a murderer run free. Who needed moral bright lines anyways?
For some reason, the United States back then was able to successfully notice the costs, acknowledge that things were going wrong, and repeal Prohibition in 1933. It didn’t undo all the damage, but it at least stopped making things worse.
Why was the United States able to do that in just 14 years, back in those days? One of my leading hypotheses is that people and politicians were saner before television was invented, in some ways if not others. But another major reason might have been that the communities being hurt by Prohibition were — not to mince words unduly here — integrated with the rest of the United States with respect to their socioeconomic strata, appearance, and racial mix.
Running a moonshine distillery sounds dashing and romantic, doesn’t it? That’s because the distillers, back in the day, were friends with people inside the same social class as your ancestors. So the War on them never got to the same point as it did in modern Prohibition.
Were the moonshiners criminals in the sense of breaking the majestic Law that is the Law? Technically, perhaps; but there’s a difference between being a ‘criminal’ merely because you are breaking the Law that is the Law; versus being a criminal because you are, say, stabbing somebody and stealing their wallet. Have you ever failed to come to a complete halt at a stop sign before proceeding, dear reader? If so, you are a ‘criminal’; there was a law and you broke it. But don’t worry — I don’t consider you a criminal, for all that the Law is the Law. I’m sure you don’t consider yourself a criminal, right? You’re in the wrong social class to be a criminal, no matter how many laws you’ve broken.
Today, most middle-class people have cars, or in some cities fast public transit; such that the underground economy created by the modern Prohibition can be concentrated somewhere else. The moonshine distillery doesn’t need to be one mile away from you. The created ‘criminal’ is no longer a family member.
Today, victimless crimes create an underground economy as always, but the created criminality is dumped as toxic waste into already-marginalized communities. The degree to which society escalates the viciousness of its response to this ‘criminality’ escalates its toxicity. There are white communities with opiate problems, but they’re white, so the police response to opiate-related ‘criminality’ is less vicious, so the communities take less damage. (The solution here is not greater police viciousness towards marginalized white communities, to be clear.)
What it’s like to actually live inside the toxic dumping grounds for the social waste of modern Prohibition… well, the story goes something like this: any time you’re driving along the road, you might get stopped by a police officer over a War on Drugs for which you have no sympathy whatsoever, have any cash you’re carrying confiscated and kept by the police department, and possibly have a baggie full of crack planted on you so that they can send you to jail with no trial and keep your car. It happened to somebody you know, according to their story. The TV is always showing somebody who looks like you being shot by police. If there’s some tough guys hanging around outside your apartment, you don’t consider calling the police to get them to disperse. If you sicced the police onto your apartment complex, the people you live with would justly hate you for doing it, because some of them are ‘criminals’. Meanwhile the TV shows white people smoking marijuana and not being arrested. Other towns are full of white opiate-users, and yet somehow those communities don’t have to live like you do.
Fixing this problem does not just require that the police be stripped of their incentive to predate on you, affixed with body cams so that they can’t plant crack on you, assured of a permanent end to their career if they kill you, and for you to be promised a real trial if arrested. It doesn’t require merely that, if white people are smoking marijuana on TV and not being arrested, this is just cause for a Supreme Court case striking down the ability of police to arrest black people for the same ‘crime’. What’s also needed is for fewer people who live in your apartment building to be defined as ‘criminals’, so that you can feel comfortable calling the police.
The more people whom the law defines as ‘criminals’, the more that they and all their friends and everyone who’s sympathetic to them are living in a world that doesn’t have law enforcement as richer communities know it. Today, if you’re in a marginalized community, then from your perspective, the police are not a force that could disperse tough guys hanging around outside your apartment. The function of the police, from your perspective, is to prevent effective law enforcement. If you were all collectively on your own, you could pay some people in the community to be town guards who’d come by and disperse the toughs hanging around outside your apartment. But that would be illegal; that would get a response indeed; that would challenge the state monopoly on violence. For you, the police don’t provide order, and they prevent any more effective order from emerging. The police don’t protect your community, and they prevent it from protecting itself. The police assume the position of the state monopoly on lawfully organized force, and then they don’t fulfill the functions that lawful force is supposed to provide, leaving a vacuum in its place, and preventing anything else from filling that vacuum. That, to you, is your relationship to the government, it is what the government is — the preventer of public order.
I mention decriminalizing prostitution, in the same breath as ending the War on Drugs, even though the damage to marginalized communities has not been quite the same… because almost all sex workers are people going about their lives without hurting anyone. To a still greater extent than in the War on Drugs, even. You do not have to be a bad person to be friends with the sex worker who lives in your apartment complex. So either they need to not be a ‘criminal’, or you are going to feel less comfortable calling the police to your apartment complex.
And likewise, upscale white people are paying $5000/month allowances to their mistresses, and not being arrested because it’s a lot of money paid monthly instead of $150 traded for one sex act. So either the sex worker you know needs to not be criminalized for her smaller-scale trades; or you are going to end up in the same mental state as a black kid whose friend’s father was taken away for selling marijuana, watching white people smoke marijuana on TV. Law? What law? It’s only illegal when people like you do it.
From the perspective of the sex worker herself, she is currently working outside the law, outside the protection of the police; she is prey of any officer or prosecutor who needs an arrest or conviction to make quota; she is without recourse if one of her customers cheats her or threatens violence against her; but oh, the government would respond quite energetically, if she and her friends clubbed up and tried to create a protective force of their own. She lives in a civilization without order, where the government does not supply order, and where the government prevents order from being created. That is her relationship to the police, and so she will inform her friends as well.
(“But sex trafficking!” — is of rather rare frequency in the modern USA in real life; would still be illegal even if sex work per se was legal; is given cover and made to stand out less by criminalizing the whole sex work sector; and finally and most importantly, if you were actually deeply concerned about harm to sex workers, you would, at most, advocate to immediately legalize the sale of sex while keeping it illegal to buy sex. Meaning that anybody forced into selling sex could immediately go to the police, without any fear of being regarded as a criminal herself. Making sex workers be defined as ‘criminals’ and civilizational outcasts is not how one protects them and extends to them a helping hand, if one is at all concerned for their welfare. The idea is patently ridiculous on the face of it.)
(An earlier draft of this proposal spoke of “legalizing” sex work rather than “decriminalizing” it. I was reminded that sex workers usually oppose attempts to “legalize” rather than “decriminalize”. “Legalize” tends to come with high-minded-sounding regulatory burdens that many sex workers can’t meet in practice, and so they end up still outside the law. Nevada theoretically has legal prostitution in some counties… but only inside brothels, which means that the brothel owners can capture most of the labor-value of the sex workers, which means that practically all of the sex workers in Nevada stay outside the law.)
I still feel like I haven’t done justice to this enormous civilizational disaster of victimless ‘crime’ as it has played out in practice. But that’s one reason why comprehensive decriminalization is necessary for reasons beyond just restoring the right to a trial, if you are trying to change the relationship of police to marginalized communities. There’s no possible way in real life that the War on Drugs could continue, with millions of marginalized people in jail, and still have people in marginalized communities feel anything like protected by police; which, let’s not forget, ought to be the desired state of affairs.
That may sound like an impossibly distant goal — like it’s an insult to even say to them that they ever ought to feel protected by the police of all people, after what the police have done to them. But that was in very large part because of the War on Drugs itself. If the police had their predatory incentives removed, if very few people in the community were defined as criminals, and if there were fast procedures for disbanding the current police force and forming a new one, then it might be possible — straightforward, even — for marginalized communities and their elected officials to create a new protective force they’d be satisfied with as actually protecting them.
And yes, there’s obvious ways those new police could go wrong. But significantly fewer ways, if the new police are required to wear body cams that are constantly uploading low-res video.
And if subelements of government other than the revenue service are not allowed to just take people’s stuff and keep it.
And if there is a bureaucratically separated institution that oversees the new police.
And if there is an investigative body separate from the new police and the prosecutors.
And if the new police don’t have their own assault rifles, and are supposed to call in a special state force for any situation that requires automatic weapons.
And if nobody has signed away the right to fire any members of this new police force that turn out to be terrible.
And if there are fast established procedures to disband and reform the new police force if required.
And if everybody who’s arrested by the police gets a fair day in court, without massive threats if they have the temerity to ask for a trial.
And if the new police can’t just arrest you and then keep you in jail for months before you get to trial.
And if you get more than five minutes and one phone call when the new police arrest you.
And so on.