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Lesley McSpadden and her husband, Louis Head, mourning for her son, Michael Brown.

When faced with the complaints about police by minority communities, the policy response from many libertarians is “end the drug war.”

The drug war has, in fact, bloated our criminal justice system at the expense of countless lives lost to addiction, overdose, incarceration, or prohibition-related violence. But ending that war is not a cure-all.

There are myriad problems with today’s criminal justice system, despite the overwhelming size and breadth of the drug war today.

Other problems have been consistent over time, and disparate treatment by law enforcement upon blacks and other minorities is prominent among them.


Minorities were mistreated before 9/11 and the 1033 program that further militarized police departments. They were mistreated before the 100:1 crack to powder cocaine drug sentencing disparity was instituted in the 1980s. And they were mistreated before the drug war was declared in 1971.

American policing, as an institution, has been an antagonist of black Americans particularly, since its inception.

Indeed, the problems between American blacks and the police are much deeper and much older than policies of the last four or five decades. Certainly, many people of color would benefit by ending the war on drugs and scaling back the militarization of our police forces.

But the tension between minority communities and those that police them pre-dates these programs will likely remain. That fear and animosity combine into a distinct policy problem beyond any individual antagonism or police policy.

As seen in the recent events in Ferguson, Missouri, simply walking down the street or exercising First Amendment rights of free speech and assembly can result in tragedy and chaos for black people, with drugs playing no role—beyond smearing the dead via anonymous leak of autopsy results, at least.

Simply put, ending the drug war won’t be enough. Neither will other policies that do not address the very strained relationship between many black communities and their police.

In the wake of Michael Brown’s shooting, one popular solution among the commentariat was to equip law enforcement with personal body cameras to monitor abuse and curb potential anti-black behavior by officers. As Radley Balko notes, these cameras may be rendered useless without attendant rules that make footage taken from those cameras available to the public.

But even if those rules are in place, it is not at all clear whether video evidence is enough protection to stem abuse against communities of color.

Take the reaction to the Ferguson protests: only one third of white people surveyed by Pew thought tear gassing and pointing guns at peaceful black protesters (and journalists) was “too far.” Even subtracting the third who answered “I don’t know,” half of those who expressed any opinion thought the police’s actions against the primarily black crowd—captured on countless cameras, phones, and video recorders—were within the range of acceptable behavior.

In a world in which this well-documented, recorded, over-the-top enforcement is tolerated or condoned by a majority of Americans, relying on cameras to rein-in police behavior in minority enclaves or against minorities individually is probably quite naïve.

Other big picture policy shifts like eliminating sex-work prohibitions, broad sentencing reform, and reducing the Pentagon programs that militarize and hyper-weaponize local police would also benefit millions of Americans. However, there’s no reason libertarians should not add an equal protection component to their criminal justice reform wish list and encourage law enforcement agencies to improve community relations with minorities.

The people were not protesting the drug war or police militarization on the streets of Ferguson, at least initially. They were protesting their ongoing, day-to-day treatment by law enforcement.

In situations like Ferguson, libertarians cannot remain steadfast and inflexible on policy proposals in a vacuum—preferring broad, non-targeted efforts on national policy instead of tackling on-the-ground problems that cause a populace to reject the enforcement arm of its government. When that government loses legitimacy, its laws are ignored and communities are destabilized, with consequences that spread into all facets of that community.

Since economists don’t make the laws, serious policy discussions must include political considerations: Many black people in this country live in fear of the police and something must be done about it.

Recognizing disparate treatment isn’t ‘identity politics,’ it’s responding to a current and recurring problem for millions of Americans.

The concerns are not new, not unfounded, and not rare. Libertarians ignore these longstanding complaints at the peril of their own relevance.

Libertarian assumptions that policy changes in these other very important areas will solve or even address the mistrust and resentment in communities like Ferguson are based on nothing but conjecture. The anger that drew a crowd while Michael Brown’s body still lay in the street cannot be blamed on self-serving outsiders stirring up racial animus that wasn’t there. (Set aside that the suggestion, in itself, strongly resembles old racial scars.) That anger came from an already painful reality they face in where they live.

Civil rights don’t trickle-down and addressing ancillary policy problems won’t fix the broken trust in Ferguson. And that Ferguson is hardly unique in this regard ought to trouble a lot more libertarians than it does.

Senator Rand Paul (R-KY) is to be commended for his bold stance against police militarization. I commend him further for his recognition that:

Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.

This is part of the anguish we are seeing in the tragic events outside of St. Louis, Missouri. It is what the citizens of Ferguson feel when there is an unfortunate and heartbreaking shooting like the incident with Michael Brown.

Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention.

Libertarians have no reason to be silent in the face of injustices that burden racial minorities instead of concentrating on the whole.

‘Equality before the law’ has been a staple of libertarian rhetoric since day one. It’s time libertarian policy recommendations reflected that.

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