Last Friday, Jonah Goldberg wrote a post at The Corner arguing that there is something “unlibertarian” about opponents of drug prohibition who use claims about the drug war’s disproportionate effects on blacks in an attempt to demonstrate its injustice. This post prompted a lengthy response from Reason’s Jacob Sullum, who helpfully showed up Goldberg’s claim that blacks are disproportionately affected by the drug war simply because they are “disproportionately in this line of work” for the falsehood that it is, concluding that especially in conjunction with the troublingly racist history of drug prohibition in the U.S., the disproportionate harm that the drug war inflicts on black Americans does indeed suggest an injustice that goes beyond that which libertarians would recognize in the war on drugs even if its effects had an equitable racial distribution.

Meanwhile, here’s how Goldberg responded to a reader who made some points similar to Sullum’s:

Let’s take drugs out of it. I’m in favor of the death penalty. Let’s assume blacks and white commit murder at identical rates but because blacks are poorer they get convicted and executed more than whites. I don’t think that fact alone means we should get rid of the death penalty. It means we should do a better job of executing white murderers. A justly convicted murderer should be punished regardless of his race. A justly convicted drug dealer should be punished, regardless of his race as well. If we’re punishing a disproportionately high number of blacks, that’s a sign we should crack down on more guilty whites, not give up on punishing crimes.

It’s really hard to follow the logic here. In the first place, the hypothetical crackdown that Goldberg proposes here is appropriate only if the laws in question deserve to be enforced; this is uncontroversial enough in the case of murder, but given that this very issue constitutes a huge part of what’s at stake in discussions of drug prohibition, it seems an unreasonable move to make. Moreover, doesn’t it seem that Goldberg has pretty much given up the game at this point? “Poor people are disproportionately affected by all sorts of things all the time”, he wrote earlier in this post, “and blacks are disproportionately poor. In most other spheres, libertarians don’t take that fact and bend their principles to it.” But that’s exactly what Goldberg is proposing to do in this hypothetical example! We’ve got the murder laws that we do, and they’ve got the effects that they have; whether those effects make life a bit more difficult for certain “identity politics groups” is supposed to be entirely beside the point, isn’t it? Or do Republicans only buy into identity-politicking when it can be used as an excuse for harsher sentencing penalties and enforcement of existing laws?

The more basic point, though, is this. What differentiates the case of the drug war from that of, say, the racially disproportionate effects of market capitalism or loan policies based on credit-worthiness is that drug policy is an aspect of our state-sponsored criminal justice system, and as such its societal function is essentially that of, well, doing justice, whereas private banks and the free market have only economic ends in mind. And so it’s simply astonishing to see Goldberg claiming that a government policy that leads blacks to be incarcerated at several times the rate of whites is somehow less troubling in its racial implications than affirmative-action policies that “keep Asians or Jews out of elite colleges”; neither situation is ideal, to be sure, but locking up a poor black man who couldn’t afford legal representation for selling dope on the corner is, shall we say, a bit more morally problematic than telling a Jewish kid from Scarsdale that he’ll have to go to Williams instead of Harvard. It is indeed the case that so far all this amounts to is an argument for serious and widespread drug policy reform, and not outright decriminalization; there’s nothing at all unlibertarian, however, about suggesting that one reason we might want to go one or the other of these routes is that an already disadvantaged racial group that still bears the scars of a long history of genuinely appalling treatment in this country might stand to benefit from it.

Well, that or you could just shut your mind to the facts and write, as one of Goldberg’s readers actually does, that the only evidence we need for the belief that drug dealers are disproportionately black is the disproportionate blackness of the “victims of drug dealing-related murders”. Because it’s certainly not as if there could be another explanation for that.

(Cross-posted at @TAC.)

     Filed under: civil liberties, libertarianism