Debate: Is Criminal Law Racism Systemic?

The cry of “systemic racism” in the criminal justice system continues to be heard. I remain unpersuaded that this empty phrase is correct or even modestly useful in either fixing the legal system or eliminating racism (which, as I’ve made abundantly clear, are two distinct problems that have been simplistically conflated). But since I may very well be wrong, I pay attention when people I respect have something to say about the point.

So when Reason held a debate between former libertarian Agitator Radley Balko against the Manhattan Institute’s Rafael Mangual, it was worth a listen. The issue was framed as “Is the Criminal Justice System Racist?”

Without going into detail, so as not to plant any seeds, I found both arguments deeply flawed. But then, maybe I don’t get it. You decide for yourself.

16 thoughts on “Debate: Is Criminal Law Racism Systemic?

  1. Miles

    Here’s my stab at it: Radley doesn’t understand disparate impact, either in its evidentiary meaning as a rebuttable presumption or in the context of the logical fallacy that correlation does not imply causation. His conclusion, that it’s systemic racism, is just throw out in the middle with absolutely no argument or support, and his Missouri story is neither about crim law nor applicable to the rest of the nation, so while an interesting anecdote about some misbegotten bureaucratic abuse, it adds nothing to his position.

    Rafael, on the other hand, shockingly ignores the overwhelmingly documented and basically conceded fact that the people who execute a facially neutral system are still people and still suffer their rank prejudices, which impacts how they execute the law. To simply pretend there is no undercurrent of racial prejudice throughout the people who execute the legal system is to be blind.

    1. SHG Post author

      What about the argument that the criminal justice system is an outgrowth of Jim Crow laws and designed to be racist?

      1. Miles

        That was bizarre, just pulled out of nowhere without any argument or proof. Do black people like getting mugged more than white people? Yet, criminalizing assault is racist? Even the 100 to 1 crack ratio was overwhelmingly supported by people of all races at the time it happened.

  2. CLS

    Speaking purely to both parties’ debate performance, Radley did something that chaps my ass: laundry listing points of evidence without doing much to draw cohesive links to his premise.

    To paraphrase something my debate coach taught me: we can trade statistics all day long, but unless you make those statistics matter to me you’re not going to persuade me.

    Rafael takes Radley’s points, sidesteps them with a sort of “It’s’ not how it looks” approach, and in doing so halfheartedly concedes the premise while just trying to make his arguments look a little shinier than Radley’s.

    it’s still relatively early for me and I’m attempting to suss these out while the kids attempt to tear the house apart, but I don’t follow the whole “criminal justice system is an outgrowth of Jim Crow laws” line of reasoning.

    1. SHG Post author

      As you know, the framing of the resolution is a critical element of a good debate. Part of the problem here is that they framed a complex problem with a simplistic resolution, which provided sufficient latitude for both sides to skirt each other’s arguments. More precise framing would have compelled them to focus on the same issue rather than dance around each other.

    2. CLS

      Okay, this is my issue with the “Jim Crow” argument: it ignores the fact we had a criminal justice system before the Jim Crow laws were enacted. I think we could possibly agree Jim Crow laws either exacerbated existing flaws or piled on the problems, but saying modern criminal justice sprang out of Jim Crow laws is a bit too large of an intellectual leap for me to take.

      1. SHG Post author

        Criminal law is a massive Rube Goldberg machine. I’ve little doubt that there are detritus of Jim Crow laws floating around, perhaps more or less depending on location, but it would be far more useful to identify specific laws that fall into that category than make a monumental assertion that it’s *all* connected. Most malum in se crimes were always crimes. Many malum prohibitum crimes arose from specific issues that fit the syllogism at the time, but were later understood to have missed the mark, caused unintended consequences or just plain failed to solve the problem. Details matter.

        1. Carlyle Moulton

          Specific laws! How about the laws against possession and trading in certain mind altering substances!!!!

          Using chemicals to affect one’s state of mind is normal human behaviour. Criminalizing normal human behaviour results in so many potentially convictable actions that no law enforcement apparatus can afford to process more than a tiny fraction of them. In such cases it is easy to skew enforcement towards despised minorities via army of occupation policing in high crime areas which results in crime statistics, relative conviction rates, relative years of imprisonment per person for different races that appear to justify the skew in policing.

          If race based malice is not involved why the collateral consequences for breaches of only the drug laws, loss of entitlement to government benefits such as housing, welfare and educational assistance???

          Rename “the war on Drugs” correctly as “The War on referents of the N-word” and suddenly every piece of the jigsaw is in place!!!

          1. SHG Post author

            This is why you shouldn’t write comments on drugs: you end up with inane gibberish like this. You’ve managed to reduce a complex and deeply problematic issue into simplistic absurdity.

            1. Carlyle Moulton

              Complex and deeply problematic issues are often made up of a complex arrangement of simple elements each of which can be examined on its own and behind which the driving motives can be discerned. The drug laws and the history of their creation are elements that can be picked up an each examined on its own.

              The reason that the US has its war on drugs is that it has an unwanted 13% of the population who are descendants of white property that was wrongly gifted with their freedom in that most egregious excess of political correctness and government theft, the abolition of slavery.

              13% is well above the concentration of unwanted minorities that a society can tolerate hence the need to paint them as criminal and to punish them severely and to prevent them obtaining the American Dream of upward social mobility. based on the resources stolen from the red savages that were ethnically cleansed from the land.

              The creation of laws and their implementation occur in stages and in each stage human judgement is involved and that judgement is affected by prejudices that the individuals involve would vehemently deny having. These prejudicial effects compound along .the chain so that the final result of a modest prejudice at each stage ends in an extremely prejudiced result.

              The drug laws are justified as being to prevent harm caused by drug use, but most of the harms to drug users and the communities from which they come are caused by the laws, but since that harm is happening to very bad people the righteous see it a good and desirable. People do no actually say out loud that the law is good because it messes up the lives of melanin tinted people but if you removed their brains, sliced them into very thin slices and examined each slice under a microscope to map the neurons and their connections you would find in the neural networks involved very little empathy or sympathy with those with too much melanin who suffer the harms from the laws but strong connections between the concept of brown skinnedness and concepts like inherent criminality and other undesirable traits which are not so tightly bound in their minds to the concept of white skinnedness.

            2. SHG Post author

              You’ve done your cause no credit, but for what it’s worth, here’s your comment in all its glory.

            3. Ron

              You realize that while blacks may be disproportionately arrested and imprisoned for drugs, there are more white people in prison for drugs than black people, right? If this was just an excuse to lock up black people, they did a piss poor job of it.

            4. Carlyle Moulton

              There is no reply Button for Ron’s reply to my last comment. Therefore I am replying to you in the hope that my comment lands somewhere in the vicinity of the comment to which I actually want to reply.


              I suggest that you read Michelle Alexanders Book “The New Jim Crow” she does a much better job than I can do in a blog post. Incidentally before she started research for the book she explicitly rejected this conspiracy theory but came around as she learned more.

            5. SHG Post author

              I can’t speak for Ron, but I’ve read “The New Jim Crow” and you’re right, she does a much better job than you do, blog comment or otherwise. But it’s not the Gospel. She makes many valid points, and she raises many issues that are valuable, even if they don’t prove as much as she would have them prove. You’re free to pray at her altar all you want, but don’t assume that your religion is the one true religion for everyone.

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