Sure, it was only a debate among the Democratic Party candidates left standing, and has to be taken with a grain of salt, it being a minute of pandering to the lowest common denominator in the hope of getting that small cohort of hardcore party primary voters to choose one over another. But one by one, they all agreed on one thing: criminal law was racist.

“But…but it IS!” you say?

Slow down, buckaroo. There is no question that black and Hispanic (or Latinx for Warren supporters) defendants are disproportionately represented in people arrested, prosecuted, convicted and imprisoned. Contrary to what some believe that means, it does not mean that white people are not arrested and imprisoned. They are. In large numbers. Just not as disproportionately large as black and Hispanic men.

And before the facile retort from the other tribe is heard, there is no statistical basis to show that blacks and Hispanics are more likely to commit crimes or more prone to violence than white people. No, the “logic” that they get arrested more shows they commit crimes more is backwards and doesn’t work. Remember, correlation does not imply causation.

And yet, that does not prove that the law is racist. Take, for example, a typical drug law, criminal sale of a controlled substance in the first degree.

A person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells:
1. one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more;

Nowhere in there does it say that it applies only to people of one race or ethnicity, to one gender more than another. Is there anything racist about this law? Maybe.

Assuming that the law is violated by people in proportion to their racial demographics, and yet arrests through imprisonment disproportionate affects black and Hispanic males, then the disparate impact provides an evidentiary basis to presume racism. But racism of what?

It could be argued that black guys like to smoke weed more than white guys, and consequently a law criminalizing weed targets black guys disproportionately. It could be argued that white guys like to snort coke more than black guys, so a law criminalizing cocaine goes the other way. But is this the case, that different racial groups prefer different drugs  and therefore laws criminalizing different substances are proxies to target by race?

It could also be argued that arrests through imprisonment isn’t about the law at all, but rather police deployment, demands and policy. They do “verticals” in tenements, but never on Park Avenue. The stop & frisk policy was apparent on every street above 125th, but nobody was tossed against a wall in Gramercy Park. This isn’t a product of racist law, but of racist law enforcement. In cops’ defense, it’s argued that they go where the crime is, but where the crime is turns out to be a product of where they go. If they checked the pockets of Wall Street brokers like they did of school kids in Harlem, would they glom piles of coke? We’ll never know because it never happened.

And it could be argued that poor people, a demographic also disproportionately black and Hispanic, have a reason to commit more crimes than wealthier people. But then, are they poor because they’re poor or are they poor because they’ve suffered historic discrimination and kept in their place, which includes poverty?

These arguments simultaneously connect and overlap, but create a very serious problem for the candidates who all announce that criminal law is racist. Upon a cursory disparate impact analysis, the law is racist as it disproportionately impacts black and Hispanic men. Whereupon the solution would seem obvious: if the law is racist, eliminate the racist law.

Except that means selling narcotics would no longer be a crime. Is that a good idea?

Before you leap to your feet and yell, “Yes! End the war on drugs,” consider that the same argument and outcome would apply to the full panoply of crime, including murder, rape, robbery and burglary. Are you still on board?

For years, I’ve tried to make the point that this is a two-fold problem that’s far too easily compressed into an overly simplistic cry of racism. There is racism. There is a legal system replete with flawed processes. The former disproportionately affects minorities. The latter affects everyone.

Both of these problems are wrong. Both of these problems demand solutions. But they are not the same problem, and “fixes” for one are not fixes for all. Our reliance on calling out “systemic racism” without recognizing that it is distinct from the separate problem of a flawed legal system for all makes it impossible to focus our attention on the real problem, and hence come up with a real solution, to very real, very brutal problems.

So what? Solutions to the wrong problem necessarily fail. No one wants a society where crime is rampant, where they take their lives into their hands by walking out their door, or even remaining inside as the door is broken in. Pretending people are all wonderful and kind, if only they were given unicorns to ride on rainbows, isn’t going to make bad dudes better and produce the Utopian society where no one harms anyone else.

The “criminal law is racist” mantra being propounded by presidential candidates serves to undermine both our ability to fix what’s wrong with the law and eliminate discriminatory enforcement by conflating the two. To make matters worse, remedies will fail to produce the desired outcomes, but may well end the decline in crime we’ve enjoyed over the past decade and cause a backlash of similarly simplistic tough-on-crime solutions that, coincidentally, produce more discrimination against minorities.

But is racism the flaw of the legal system, and the elimination of racism the cure? Not by a long shot. The legal system is fundamentally flawed for all who enter it, regardless of race. These flaws need fixing. And the entrenched racism needs fixing. Seeing these problems as distinct might make fixing them possible. Failing to recognize that there isn’t one problem, but many, may warm the hearts of social justice warriors, but won’t make the system work better for anyone.

Simplistic platitudes may be easily served up by political panderers and digested by their tribes, but they won’t fix intransigent societal problems. And ultimately, we’re going to choke on this inedible meal because we just can’t swallow it.