Protests for police reform are sweeping the United States following the deaths of Eric Garner, Michael Brown, Tamir Rice, and an untold number of other unarmed or innocent people of color. Amid the anger and sadness, one thing is clear: policing in America is a huge and complex problem. It's also a historical problem. As Ta-Nehisi Coates observed in The Atlantic, the insane incarceration rate of blacks in this country is part of a long tradition; "America's entire history is marked by the state imposing unfreedom on a large swath of the African American population."
That tradition is as deep and as old as our revered constitution. The condition of possibility of America's existence was a racist compromise baked into our founding document. We're a country founded by people who declared forcefully that "all men are created equal" as a self-evident fact, and then 12 years later declared that black slaves were only worth three-fifths of free white men to avoid giving the South greater representation in Congress. The chokehold on people of color in America is written in ink. And it has always been about property.
So, perhaps ironically, I find myself sympathetic to the words of a southern white man, Senator Rand Paul. Listen to what he said when he was asked this week about Eric Garner's death on MSNBC.
Senator Paul's libertarian-leaning politics are controversial, but they're also predictable — it's not a surprise that he took an opportunity to knock excessive New York taxation. (A city that tried to ban large sodas is low-hanging fruit for conservatives who love to rail against the nanny state.) Paul's argument is that high taxes on cigarettes in New York incubated an underground market that ultimately created the conditions for Eric Garner's death. Here's what Paul said about taxation:
Well you know I think it’s hard not to watch that video of him saying ‘I can’t breathe, I can’t breathe’ and not be horrified by it. But I think there’s something bigger than the individual circumstances. Obviously, the individual circumstances are important, but I think it is also important to know that some politician put a tax of $5.85 on a pack of cigarettes, so that [drove] cigarettes underground by making them so expensive.
Plenty of people blasted Paul for what appeared to be a crass hijacking of Garner's death for an anti-taxation rant. Wonkette wrote a sarcastic retort. CNN's Jeffrey Toobin said "Rand Paul is the only person who is blaming it on cigarette taxes... which I think is really a misreading of what happened here." Jon Stewart had similar things to say. These reactions are heartfelt, but they're also uncharitable. It's fair to say Paul is not the most important voice on the subject, though he is a rumored frontrunner for the GOP presidential race in 2016. It's also fair to say his ideas about race are often tone deaf — his positions on civil rights are arcane and academic. I can't really say what Paul's motives are, but his point is at least worth considering: police officers, like the one who killed Eric Garner, don't exist in a vacuum. They're enabled by laws.
Paul's point is that police officers don't exist in a vacuum without any legal context
For more than a decade, the United States has had the highest incarceration rate in the world. Countries comparable to the US typically jail about 100 prisoners for every 100,000 people. The United States jails about five times that many people. Think about that for a moment; it's not possible to explain away simply by invoking the patriotic parable that America is exceptionally blessed by the rule of law. Other nations — ones we routinely demonize for being draconian and regressive — don't put nearly as many people in jail as the US. There are two possibilities here: either more Americans are natural born criminals than everyone else in the world, or we're making criminals out of lots of harmless people.
There are myriad laws across the US, both state and federal, that put nonviolent people in prison for relatively trivial crimes. The consequences are disastrous for the individuals put behind bars, for their loved ones, and for the rest of society that must bear the cost of what is essentially a lost life. Some of these sentences are unimaginable. The ACLU has reported that more than 3,000 people will spend the rest of their life in jail with no possibility of parole because they did something like steal a jacket or facilitate the sale of $10 of marijuana.
The war on drugs is a specter of totalitarianism
But if there's one dominant specter of totalitarianism in the United States, it's the war on drugs. For more than 40 years, prohibition in America has been the sharpest arrow in the tyrant's quiver; it has given the state the broad authority and justification to make demons of our neighbors, especially people of color. It has also drastically militarized local police forces, leading to countless SWAT raids and the harrowing show of force the world witnessed in Ferguson, where cops wearing camouflage pointed sniper rifles and launched tear gas at peaceful assemblies of mourning residents.
The war on drugs is one of the reasons blacks make up just 13 percent of the population but roughly half of all prison inmates. Over time, the racial disparity in enforcement of drug laws has reinforced popular notions of black criminality and given racists recursive and circular justification for perpetuating those laws: The law is the law. You broke the law and you deserve to pay for it. You made a choice. Meanwhile, whites consume drugs at equal or higher rates than others, but aren't nearly punished for it as much.
According to the ACLU, from 2002-2011 the NYPD alone made more than 350,000 arrests for low-level marijuana offenses. 86 percent of those people were black or Latino. It's not because black and brown people consume more drugs than whites; it's because white cops target black and brown people by instinct or by statute.
Liberals should be particularly sympathetic to Paul's logic about the government enabling illicit markets because it's symmetrical with arguments made against the spectacular failure of the war on drugs. For decades, opponents have pointed out that prohibition has not only failed to decrease the consumption and distribution of drugs in the United States, it has increased the amount of violence associated with the sale and use of drugs — the same way alcohol prohibition in the 20th century empowered murderous gangsters like Al Capone without actually stopping anybody from drinking. And it's not just violence amongst criminals; the war on drugs has drastically increased our interactions with police, justifying "broken windows" policies like New York's shuttered stop and frisk program, which chiefly targeted — you guessed it — young black men. For white officers who literally view black men as demons, many of these kinds of encounters end in bloodshed.
Eric Garner wasn't selling drugs when he was killed, but he was already a victim of the nation's drug laws. He'd been busted for pot possession and sale of loose cigarettes in the past: charges that led some people to call him a "career criminal," even in reader comments left on this website. "Petty or not, this man has a long history of breaking the law," one conservative blogger wrote. Officer Pantaleo "operated under the scope of his authority," Rep. Matt Salmon (R-AZ) said. "He resisted arrest, that is why he is dead," former NYPD detective Harry Houck said. These people want to blame Eric Garner for his death by painting him as a professional criminal — all because he broke petty laws that were enforced by racially biased policing.
Garner was approached by police and put in a chokehold merely on the suspicion that he was selling loose cigarettes again.
Excessive taxation is a form of prohibition
Cigarettes aren't in the same class as harder drugs under the law, but they still fall under the umbrella of the war on drugs in a practical sense; it's illegal to resell them because the state desires a monopoly on the sale of things like tobacco and alcohol. (To give you an idea how serious the government is about controlling these substances, there's an entire federal law enforcement agency just devoted to alcohol, tobacco, and firearms.) This is where Paul's point about taxation is relevant. Excessive taxation is a form of prohibition, especially for the poor, who are disproportionately affected by aggressive policing. As Isaiah Berlin wrote in the famous essay Two Concepts on Liberty: "it is argued, very plausibly, that if a man is too poor to afford something on which there is no legal ban... he is as little free to have it as he would be if it were forbidden him by law." Sin taxes are also regressive: they hurt the poor disproportionately. And it's not like cigarette addicts have much of a choice.
But taxation wasn't even the crux of Paul's argument. He also spoke to a more fundamental problem:
But then some politician also had to direct the police to say, ‘hey we want you arresting people for selling a loose cigarette.’ And for someone to die over breaking that law, there really is no excuse for it. But I do blame the politicians. We put our police in a difficult situation with bad laws.
Paul is simply saying what most empathetic people who watched the video of Eric Garner's killing are saying: how can we let our police kill someone for selling loose cigarettes? Why should police even be involved in this kind of business in the first place? Who benefits from this kind of policing? Why does the state really need to put people who sell loose cigarettes at the end of a gun, or a chokehold?
I can't tell you how we get to a more just society. I can't tell you how we can reform so many bad laws in so little time to prevent the killing of another Michael Brown, or Oscar Grant, or Eric Garner, or Tamir Rice. As many critics have noted, we'll no sooner eliminate racist policing in America with a few more training seminars than we will with body cameras. Police won't cede their power voluntarily; they must be leashed by the law.
An essential reagent for deliberative democracy is truth, and the truth is this: the implied premise of politicians directing the police is that we elect the politicians. In that sense, the blame for police brutality cannot, and never will, reside solely with the police. We — white Americans — are to blame. We are the majority. And the only way we can prevent the police from treating our black neighbors like demons is to stop giving them the license to.