Saturday, August 22, 2015

Wrong Hermeneutic

Leon Wolf (via Ace) writes:

As a conservative . . .

Really? I've never even heard this guy's name before, but let's see what he has to say:

. . . who has advocated for criminal justice reform, I have a lot of admiration for the #BlackLivesMatter movement, which has been remarkably effective at raising awareness of the myriad ways that black Americans are treated differently — or, put more bluntly, treated worse — by law enforcement.

So, already we're off the rails. I say this as a conservative who has himself been critical of the police: their methods are characterized by excess aggression, poor accountability, and insufficient regard for the Constitutional rights of American citizens. But I have no sympathy at all for criticisms centered around "disparate impact" analysis, and for two very good reasons: (1) it's factually wrong; and (2) it doesn't contribute to my well-being.

As the experience of, most prominently, Martin O'Malley at the Nut-Roots convention demonstrate, the #BlackLivesMatter movement isn't motivated by the desire to improve police behavior in a disinterested way. It is motivated by the desire to socially and politically validate black racial grievance, and his claims to conservatism notwithstanding, Wolf buys into this motivation.* His analysis may be more sophisticated than the crude slogan -- "Po-po b' raciss'!" of the street, but his column is about the structural racism of "Big Government". Nowhere does this "conservative" mention the easily observed and incontrovertible reality of disproportionate black criminality and anti-social behavior. I don't have a firm fixed opinion about whether "loosies" should be sold legally by street peddlers in NYC, whether parking and traffic laws are in all cases constructive or the fines for their offenses onerous, or whether the drug laws and their associated sentences are socially optimum. Indeed, I can understand the arguments on both sides of these questions. But I am sure, by common experience, that blacks run afoul of these laws in the numbers they do, not by some conscious or unconscious discrimination on the part of the police or in the structure of the law, but rather by the inability or unwillingness on the part of black Americans to observe the standards of behavior expected by their fellow citizens.

Believing otherwise is unlikely to end well. We already see what disparate impact analysis did in the Wells Fargo lending prosecution: Wells Fargo allowed its loan officers to charge not-smart borrowers above-market interest rates, but the government didn't bring a case on behalf of not-smart borrowers. It brought the case only on behalf of not-smart black borrowers, and only the black borrowers received redress in the eventual settlement. The white not-smart borrowers? The government sent them away empty-handed.

I'm not interested in these kinds of settlements. I'm not interested in a world where the police continue the violate with impunity our rights under the First, Second, Third, Fourth, and Fifth Amendments, where we have no right of self-defense against those violations, where the legal system itself refuses to vindicate those rights, and where vindication, even when possible, is lengthy, expensive and uncertain . . . BUT where the police structure their violations such that blacks and whites are victimized in equal proportion to their percentages of the population. Because THAT is the likely outcome of admiration for #BlackLivesMatter.

* Wolf links to a Ken Cuccinelli column that considers the effects of drug sentencing reform, mostly in Texas. The column is too vague for me to understand what trade-offs might have been involved, but to be fair to Wolf, it's apparently an example of the kind of changes he has in mind.

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