The Seen and the Catastrophic Unseen in Our Criminal Justice System

Liberty-lovers are all too happy to apply Bastiat's concept of the seen and the unseen to economic policy, but it's important to apply it to all aspects of life and policy, including criminal justice.

These are the remarks delivered by Radley Balko, Bastiat Award co-winner and unflinching witness, at last week's Reason Media Awards ceremony.

Thank you. Thank you to the Reason Foundation, and to the judges who saw merit in my work and honored me with this award.

It's especially validating to get an award named after Bastiat—an award for which people like Milton Friedman and James Buchanan once served as judges—because I write about and report on the criminal justice system. People like Friedman, Bastiat, and Buchanan had a lot to do with how I arrived at this beat.

Bastiat is perhaps most famous for his caution that we should not merely consider the observable consequences of public policy, but the hidden and unintended consequences as well—what he called "what is seen and what is unseen."

Few areas of public policy better illustrate what he was talking about than the criminal justice system. After a generation of "tough-on-crime" policies, here are some examples of how what we see often obscures what we can't see.

Seen and Unseen

We can see cops stopping and arresting people, roughing people up, and administering street justice. We think, "Good. They're getting the bad guys off the streets."

What we don't see: The orders from mayors and senior officials in cities like Baltimore, St. Louis, and Chicago for police to initiate mass arrests, usually for petty offenses, sometimes for no offense at all. We don't see the bulk of the arrestees who are later released with no charges, but who now have an arrest record that can be crippling. We don't see the mistrust and anger these kinds of police actions sow between police and the communities they serve—feelings that last for generations and present major barriers to fighting crime. We won't see if just as much crime—or perhaps even more—could have been prevented with a more rights-oriented approach to policing, an approach less apt to destroy lives.

We see stories about deportations of undocumented immigrants and we think, "Good. We're taking people who don't deserve to be here off of public assistance, and sending back to from where they came."

We don't see cops instructed to see citizens as little more than ATMs for the local municipality. What we don't see: The net $2,500 per year that the U.S. economy loses for every immigrant denied entry. As of 2010, 40 percent of Fortune 500 companies were founded by either immigrants or their children. So we also don't see the Googles, the Yahoos, the Teslas, the Chobanis, the Amazons, and the Ebays never founded here in America—or perhaps at all—because nativist sentiment prevented some enterprising young immigrant from entering the country.

We see overflowing prisons and think, "Thank goodness those dangerous criminals aren't free to hurt more people again."

What we don't see: The catastrophic effects of mass incarceration on families, neighborhoods, communities, sometimes entire cities. We sometimes see the $80 billion it costs the U.S. to annually imprison about 1 percent of its population. But it's much harder to see what a recent Washington University study attempted to quantify—the social decay, psychological trauma, reduced earnings, despair, and otherwise wasted human potential that comes with mass incarceration. That study put the annual cost of incarceration at over $1 trillion, the brunt of that figure falling not on the incarcerated, but on their children, their families, and their communities.

We see cops pulling over the same people multiple times for traffic offenses, or for petty offenses like jaywalking, or not wearing a seatbelt. We're glad these people lose their driver's licenses, pointing to claims that these kinds of laws prevent highway fatalities.

What we don't see: Cities and towns becoming dependent on the revenue from these infractions, creating a predatory relationship between the governing and the governed. We don't see cops instructed to see citizens as little more than ATMs for the local municipality. We don't see the job interviews low-income people have missed due to driver's licenses suspended over unpaid court fees, or a budding entrepreneur from a low-income area denied a business license because of arrest warrants stemming from unpaid fines over misdemeanors.

In "The Petition of the Candlemakers," Bastiat satirized the dangerous power of factions who can manipulate the political process into approving policies that benefit the few at the expense of the many.

The law has been used to destroy its own objective. Here, we can see schemes like privatized probation. The goal of parole and probation ought to be to graduate people who have broken laws back into society. To rehabilitate them. When parole or probation is privatized, the companies that run them get their revenue from the fees they charge to probationers and parolees themselves. This means every success story for a former inmate—and for society—is one fewer paying client for the parole and probation companies. We've incentivized these systems to fail.

Finally, Bastiat was a brilliant and pointed critic of collectivism. In his last book, the late racial justice activist and commentator Ambrose Lane pointed out that Bastiat wrote "The Law" only about a decade before the Civil War, and his warnings to his French countrymen could just as easily be applied to laws like the Fugitive Slave Act, the various slavery compromises, or later, Jim Crow.

"The law has been used to destroy its own objective," Bastiat wrote. "It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous, who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime in order to punish lawful defense."

Race Matters, Even to Individualists

We libertarians have too often been reticent to acknowledge the role race plays in our society and in our criminal justice system in particular. That's on some level intuitive. Race is a social construct, and a collectivist way of thinking. Libertarians are individualists.

But if the government is treating people in a collectivist manner, we as individualists need to speak up. We're obligated to speak up.

Systemic racism should infuriate us. Instead, we too often tend to question its very premise. Why should a man be pulled over more often, be more likely to be stopped and patted down, be more likely to have his home or car searched, be more likely to be wrongly convicted, and generally be privy to a diluted Bill of Rights simply because he shares an ethnicity or skin color with a demographic group that, according to government statistics, commits more crimes? We're punishing individuals for the alleged sins of some larger groups with which they share only superficial features.

Why, as a small mountain of studies suggest, should the law treat those who kill white people more punitively than those who kill black people? As individualists, this should outrage us.

After Ferguson, we saw in St. Louis County that as the percentage of a town's black population got higher, so, too, did the rate at which that town relied on fines and fees imposed on residents to fund itself. Some of these towns had black mayors and city councils. That suggests that some of these problems aren't the problems of individual actors, but of systems as a whole. As libertarians, systemic racism should infuriate us. Instead, we too often tend to question its very premise.

We all recognize the immorality and degradation wrought by the collectivist racism of Jim Crow. These were laws that, as Bastiat put it, "annihilated the justice they were supposed to maintain." But those laws existed for decades, and the racism that motivated them for centuries. Nearly all of our customs, systems, and institutions were built and evolved during that era—many of them specifically to perpetuate a racial hierarchy. It would be foolish to think that simply because state-enforced segregation went away, the pernicious effects of the legal system, court system, and law enforcement culture created during segregation—often for the purpose of preserving segregation—went away, too. Or to put it as Bastiat might, these systems were built to thrive on the spoils of exploitation. It will take a lot more to change the output of those systems than simply populating them with new personnel. The systems themselves need to be changed. Uprooted. Recalibrated.

When I cover these issues and also describe myself as a libertarian, I'm sometimes asked how both things can possibly be true. How could someone possibly be a libertarian and still give a damn about injustice—as if passion about these issues requires compromising or softening my libertarian principles? My response to that has always been—and continues to be—that I cover these issues because of my libertarian beliefs, not in spite of them.

Thank you very much for this award, and thank you to the folks at the Reason Foundation and at Reason magazine for supporting my work over the years. You all have been great to me. This award means a lot.

Reprinted from Reason