David R. Henderson  

Heather MacDonald on the Drug War

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Heather MacDonald, the Thomas W. Smith fellow at the Manhattan Institute for Policy Research, recently testified before the Senate Judiciary Committee. The second last sentence of her closing paragraph gives the gist of her message:

In closing, let me say that the committee would provide an enormous public service if it could rebut the myth that the criminal justice system is racist.

Ms. MacDonald knows way more than I'll ever know about crime and the criminal justice system. So I don't want to argue with her main point. She may well be right. Indeed, she writes:
The most dangerous misconception about our criminal justice system is that it is pervaded by racial bias. For decades, criminologists have tried to find evidence proving that the overrepresentation of blacks in prison is due to systemic racial inequity. That effort has always come up short. In fact, racial differences in offending account for the disproportionate representation of blacks in prison. A 1994 Justice Department survey of felony cases from the country's 75 largest urban areas found that blacks actually had a lower chance of prosecution following a felony than whites. Following conviction, blacks were more likely to be sentenced to prison, however, due to their more extensive criminal histories and the gravity of their current offense.

I have no reason or evidence to contradict her.

I do want to point out, however, some pretty important flaws in her testimony.

Ms. MacDonald says:

We are in the midst of a national movement for deincarceration and decriminalization. That movement rests on the following narrative: America's criminal justice system, it is said, has become irrationally draconian, ushering in an era of so-called "mass incarceration." The driving force behind "mass incarceration," the story goes, is a misconceived war on drugs. As President Barack Obama said in July in Philadelphia: "The real reason our prison population is so high" is that we have "locked up more and more nonviolent drug offenders than ever before, for longer than ever before." In popular understanding, prisons and jails are filled with harmless pot smokers.

Notice that she goes from President Obama's statement about nonviolent drug offenders to her summary of the popular understanding. It seems that her goal is to leave the listener or reader thinking that President Obama is making the claim about harmless pot smokers. But certainly that's not in his statement. He focused on nonviolent drug offenders. Who, besides pot smokers, are nonviolent drug offenders? Drug sellers. Some are violent. But many are not. And you don't have to follow the criminal justice much to know that you can go to prison for a long time for selling illegal drugs, even if you have never committed violence.

She later says/writes:

Today, only 16 percent of state prisoners are serving time for drug offenses--nearly all of them for trafficking. Drug possession accounts for only 3.6 percent of state prisoners. Drug offenders make up a larger portion of the federal prison caseload--about 50 percent--but only 13 percent of the nation's prisoners are under federal control. In 2014, less than 1 percent of sentenced drug offenders in federal court were convicted of simple drug possession; the rest were convicted of trafficking.

Ok. But 16 percent is a large number. Even if all 16 percent of state prisoners--and state prisoners are the lion's share of prisoners--are there for drug trafficking, how many of them were charged with violent crime? Inquiring minds want to know. Ms. MacDonald doesn't tell us.

She writes:

The drug war was not a war on blacks. It was the Congressional Black Caucus that demanded a federal response to the 1980s crack epidemic, including more severe penalties for crack trafficking. The Rockefeller drug laws in New York State were also an outgrowth of black political pressure to eradicate open-air drug markets.

So her evidence that the drug war is not a war on black people is that various black people have pushed (pun not intended) for the drug war. But that is evidence only that the drug war is not a war on most black people. If black people are disproportionately involved in selling drugs, as I suspect they are, then the drug war is indeed a war on those black people, even if that war is demanded by other black people.

She continues:

This local demand for suppression of the drug trade continues today. Go to any police-community meeting in Harlem, South-Central Los Angeles, or Anacostia in Washington, D.C., and you will hear some variant of the following plea: "We want the dealers off the streets, you arrest them and they are back the next day."

I bet she's right. But what she doesn't tell you is why the dealers are on the streets. Why aren't some of these drugs sold in pharmacies? Everyone knows why. They're illegal. So we're back to the drug war, which she advocates, causing a problem that she decries.

Final non sequitur:

Incarceration is not destroying the black family. Family breakdown is in fact the country's most serious social problem, and it is most acute in black communities. But the black marriage rate was collapsing long before incarceration started rising at the end of the 1970s, as my colleague Kay Hymowitz has shown.

She's right that the black marriage rate was falling long before incarcerating was rising. But how could it possibly follow that incarceration is not destroying the black family? Would Ms. MacDonald say that when one member of a family goes to prison, that doesn't badly hurt the family? All she has done is point correctly to other causes, but that doesn't mean that incarceration is not a cause.


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CATEGORIES: Economics of Crime




COMMENTS (18 to date)
E. Harding writes:

If drugs were legalized (not just decriminalized), their sale would also become far more streamlined and efficient, leading those drug dealers to move to some other disreputable occupation.

Rossle writes:

None of these purported "flaws" in Ms. Macdonald's testimony approaches a misstatement of fact or a fallacy of logic. To my ear none of these quoted statements have even the ring of puffery we find surrounding most more or less reasonable political speech and policy entrepreneurship. Mr. Henderson apparently would prefer a few points be given greater or lesser emphasis in Ms. Macdonald's testimony, but his concern trolling criticisms are more tangential to the thrust of Ms. Macdonald's argument, or even a reasonable counter-argument thereto, than any of the quotations cited.

I know this is a libertarian blog and she testified in favor of what some deride as the carceral state. But if this is a "fisking" of her argument(s) she has made a very strong case indeed.

By the way, does anyone recall the 1990s DEA crackdown on the Grateful Deadheads and their informal networks of LSD distribution? What a harmless bunch of leftover hippies doing very long federal sentences . . . and nary a peep in objection nor a hint of a pardon/commutation . . . for PR purposes it's now better to be a murderer-rapist with a 70 IQ I guess.

Floccina writes:

I worked with a young man who became a violent offender, in my opinion because of the illegality of recreational drugs. He went to buy some crack and the guy gave him something that was not crack and he shot the guy. Now death is a ridiculously harsh penalty for defrauding someone like that, so the kid was not innocent, but I doubt he would have ever committed a violent crime had drugs been legal.

[nick fixed--Econlib Ed.]

jon writes:
As President Barack Obama said in July in Philadelphia: "The real reason our prison population is so high" is that we have "locked up more and more nonviolent drug offenders than ever before, for longer than ever before." In popular understanding, prisons and jails are filled with harmless pot smokers.

It doesn't seem to me that she is being dishonest or misleading here. I understood her to be saying that the general public interprets comments such as Mr. Obama's to mean that we have prisons full of amiable stoners (people the general public doesn't want to see in prison). When in fact, most of the non-violent drug offenders are dealers (people the general public very much want to see in prison).

If you favor legalization, then obviously you don't think that the dealers belong in prison either. But most Americans disagree, so I don't think she is hiding any inconvenient facts.

Lee W. writes:

@Floccina "Now death is a ridiculously harsh penalty for defrauding someone like that, so the kid was not innocent, but I doubt he would have ever committed a violent crime had drugs been legal."

I think E. Harding makes a reasonable point:
"If drugs were legalized (not just decriminalized), their sale would also become far more streamlined and efficient, leading those drug dealers to move to some other disreputable occupation."

Michael Byrnes writes:

Rossie wrote:

None of these purported "flaws" in Ms. Macdonald's testimony approaches a misstatement of fact or a fallacy of logic. To my ear none of these quoted statements have even the ring of puffery we find surrounding most more or less reasonable political speech and policy entrepreneurship.

I would say that the flaw in MacDonald's argument has less to do with the facts she has cited and more to do with the implicit assumptions made in interpreting the fact and with the way tht she has framed her argument.

David R. Henderson writes:

@jon,
It doesn't seem to me that she is being dishonest or misleading here. I understood her to be saying that the general public interprets comments such as Mr. Obama's to mean that we have prisons full of amiable stoners (people the general public doesn't want to see in prison). When in fact, most of the non-violent drug offenders are dealers (people the general public very much want to see in prison).
That’s a reasonable interpretation. This one is the weak part of my post, and I almost didn’t put it in.
The others, contrary to Rossie above, hold up.
Whether you favor imprisoning people for selling drugs or not, it’s simply incorrect to claim that sellers are violent.

Nathan W writes:

There is violence associated with drugs because making illegal creates turf to fight over. Since minorities usually have lower income, they are more likely to be involved in this.

Brad writes:

America’s criminal justice system may not BE racist but its outcomes sure appear to be so. Additionally, the people administering criminal justice may not BE racist, but the application of so-called criminal justice is certainly skewed towards the black community. Only a fool would conclude otherwise.

For a nice expose on the drug war, see Vox:

http://www.vox.com/cards/war-on-drugs-marijuana-cocaine-heroin-meth/war-on-drugs-success-failure-working

Brad writes:

I sense a bit of confirmation bias in the Senate committee.

Harold Cockerill writes:

Given the degree to which plea bargaining is used in the justice system it is hard to tell what people were arrested for looking at what they were convicted of. Unless it's an incredibly high profile case the path of least resistance for all is to have the perp cop to a lower level crime and avoid all that messy courtroom stuff. Maybe the five pounds of pot becomes simple possession like the simple assault started out with a bunch of bullets being fired. Prosecutors clear their desks and the defense attorneys deliver for their big bucks.

I put the prosecutors, the defense lawyers, the DEA agents, the parole officers, the prison guards and the small communities dependent on the local prison in the camp of rent seekers looking to keep drugs illegal. But then, maybe I'm just cynical.

john hare writes:

I was on a job once with a man from The Netherlands. Quote "We have no more problem there than you do here, if you don't like heroin, don't go to the bars that serve it." Single source and anecdotal, but informative.

Brandon Berg writes:

Regarding the "war on black people," by your logic criminalizing violent crime is also a war on black people, because a disproportionate share of violent crimes are committed by black people, and consequently a disproportionate share of people imprisoned for violent crime are black.

Of course, that would be silly. And it's equally silly to describe the war on drugs as a war on black people. It's a war on drug dealers. And for various reasons I don't think this is a good policy. But unless you think the racially disparate impact of laws against violent crime is a good argument against those, I don't see how it's a good argument against laws against drugs.

Floccina writes:

@Lee W "If drugs were legalized (not just decriminalized), their sale would also become far more streamlined and efficient, leading those drug dealers to move to some other disreputable occupation."

Like what? What could rival the drug market in scope? Also not everyone who sells drugs is equally immoral, some are worse people than others and might commit murder over a drug deal gone bad or turf war but would not go into kidnapping.

khodge writes:

I, for one, am certainly impressed that the Congressional Black Caucus is in favor of the war on drugs...it's not as if the law of unintended consequences would ever come into play here.

I agree that there are non-sequiters here. More to the point, though, are her explanations adequate? Is it fair, for example, to say that family breakdown is not the result of racist policies? There's no possibility of causality between systemic racial inequality and racist government policy?

There is a special problem with trying to fix systemic racism while denying possible causation.

Daublin writes:

Excellent points, David.

I will add that the drug *laws* are racist. More precisely, modern American drug law is much harder on black people than on the rest of the country. Let me outline the state of drug law today, and then look at early 20th century drug law as well.

The laws and enforcement around MDMA and cocaine are already so weak as to be nearly non-existent. If you are a high-roller who attends parties where cocaine is relevant, then you might abstain, but it's not for fear that the cops are going to bust through your door and give you a hard time. Similarly, if you are at a rave where MDMA is going around, again, whether you partake or abstain has nothing to do with the worrying about the cops.

Being spotted with a crack pipe on an urban street is a completely different matter. Cops will throw you against a car and handcuff you, and commence to talk down to you about your life choices. I personally think of cops as pretty low on the social pecking order; they probably do, too, which is why they're so darned happy to find someone even lower.

And heroin is the big time. Heroin addicts are depressing, but are they more depressing than people hooked on prescription opiods? If you get heroin from your friend you play basketball with, you can both go to jail. If you get an opiod from your golfing buddy with an M.D., then it's completely legal and nothing happens to you. These cases are not an exact parallel, but they are close enough to make my point: the justice system is vastly harder on people who are already in disfavored political groups.

That's today's situation. Let's take a brief look at history.

Marijuana became basically illegal in the 1930s. Marijuana law was used to crack down on Mexican immigrants: both on general principles for being a disfavored group, and as an opening move for cops to be able to investigate such people and hopefully find something bigger to charge them with.

The pot laws seem to have been modeled on opium law. San Francisco got the party started in 1875, with laws that specifically targeted opium dens--i.e., the places where Chinese immigrants hang out. The feds got into the act around 1909 with the Smoking Opium Exclusion Act, which specifically targeted *smoking* of opium, while leaving alone the ways that white people take opioids.

As a closing note, marijuana is nowadays very popular among well-off white Americans.

sourcreamus writes:

4.7% of black men are incarcerated and 72% of black babies are born to single mothers. It may be that incarceration is making the problem worse but the scope of the problem makes it impossible that incarceration is the cause of the breakdown of the black family.

David R. Henderson writes:

@sourcreamus,
4.7% of black men are incarcerated and 72% of black babies are born to single mothers. It may be that incarceration is making the problem worse but the scope of the problem makes it impossible that incarceration is the cause of the breakdown of the black family.
If you’re addressing me, you’re preaching to the choir. Check my last paragraph. Re your 4.7% number, a more important statistic would be the % of black men age 18 to 40 who are incarcerated. Do you have that?

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