Mike Konczal

Roosevelt Institute Fellow

Recent Posts by Mike Konczal

  • New The Score Column: The Rise of Mass Incarceration

    Sep 29, 2014Mike Konczal

    I have a new column at The Score: Why Prisons Thrive Even When Budgets Shrink. Even as the era of big government was over, the incarceration rate quintupled over just 20 years. It had previously been stable for a century. Logically, three actors set the rate of incarceration: here's how they made this radical transformation of the state.

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    I have a new column at The Score: Why Prisons Thrive Even When Budgets Shrink. Even as the era of big government was over, the incarceration rate quintupled over just 20 years. It had previously been stable for a century. Logically, three actors set the rate of incarceration: here's how they made this radical transformation of the state.

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  • How Much are Local Civil Asset Forfeiture Abuses Driven By the Feds? A Reply to Libertarians

    Sep 12, 2014Mike Konczal

    (Wonkish, as they say.)

    I wrote a piece in the aftermath of the Michael Brown shooting and subsequent protests in Ferguson noting that the police violence, rather than a federalized, militarized affair, should be understood as locally driven from the bottom-up. Others made similar points, including Jonathan Chait (“Why the Worst Governments in America Are Local Governments”) and Franklin Foer (“The Greatest Threat to Our Liberty Is Local Governments Run Amok”). Both are smart pieces.

    The Foer piece came into a backlash on a technical point that I want to dig into, in part because I think it is illuminating and helps proves his point. Foer argued that “If there’s a signature policy of this age of unimpeded state and local government, it’s civil-asset forfeiture.” Civil-asset forfeiture is where prosecutors press charges against property for being illicit, a legal tool that is prone to abuse. (I’m going to assume you know the basics. This Sarah Stillman piece is fantastic if you don’t, or even if you do.)

    Two libertarian critics jumped at that line. Jonathan Blanks of the Cato Institute wrote “the rise of civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as ‘equitable sharing’ agreements, federal law enforcement split forfeiture proceeds with state and local law authorities.”

    Equitable sharing is a system where local prosecutors can choose to send their cases to the federal level and, if successful, up to 80 percent of the forfeited funds go back to local law enforcement. So even in states where the law lets law enforcement keep less than 80 percent of funds to try and prevent corruption (by handing the money to, say, roads or schools), “federal equitable sharing rules mandate those proceeds go directly to the law enforcement agencies, circumventing state laws to prevent “‘policing for profit.’”

    Lucy Steigerwald at Vice addresses all three posts, and make a similar point about Foer. “Foer mentions the importance of civil asset forfeiture while skirting around the fact that forfeiture laws incentivize making drug cases into federal ones, so as to get around states with higher burdens of proof for taking property...Include a DEA agent in your drug bust—making it a federal case—and suddenly you get up to 80 percent of the profits from the seized cash or goods. In short, it’s a hell of a lot easier for local police to steal your shit thanks to federal law.”

    Equitable sharing, like all law in this realm, needs to be gutted yesterday, and I’m sure there’s major agreement on across-the-board reforms. But I think there’s three serious problems with viewing federal equitable sharing as the main driver of state and local forfeitures.

    Legibility, Abuse, Innovation

    The first is that we are talking about equitable sharing in part because it’s only part of the law that we are capable of measuring. There’s a reason that virtually every story about civil asset forfeiture highlights equitable sharing [1]. It’s because it’s one of the few places where there are good statistics on how civil asset forfeiture is carried out.

    As the Institute for Justice found when they tried to create a summary of the extent of the use of civil asset forfeiture, only 29 states have a requirement to record the use of civil asset forfeiture at all. But most are under no obligation to share that information, much less make it accessible. It took two years of FOIA requests, and even then 8 of those 29 states didn’t bother responding, and two provided unusable data. There's problematic double-counting and other problems with the data that is available. As they concluded, “Thus, in most states, we know very little about the use of asset forfeiture” at the county and state level.

    We do know about it at the federal level however. You can look up the annual reports of the federal Department of Justice’s Assets Forfeiture Fund (AFF) and the Treasury Forfeiture Fund (TFF) of the U.S. Department of the Treasury. There you can see the expansion of the program over time.

    You simply can’t do this in any way at the county or state levels. You can’t see statistics to see if equitable sharing is a majority of forfeiture cases - though, importantly, equitable sharing was the minority of funds in the few states the Institute for Justice were able to measure, and local forfeitures were growing rapidly - or the relationship between the two. It’s impossible to analyze the number of forfeiture cases (as opposed to amount seized), which is what you’d want to measure to see the increased aggressiveness in its use on small cases.

    This goes to Foer’s point that federal abuses at least receive some daylight, compared to the black boxes of county prosecutor’s offices. This does, in turn, point the flashlight towards the Feds, and gives the overall procedure a Federal focus. But this is a function of how well locals have fought off accountability.

    The second point is that the states already have laws that are more aggressive than the Fed’s. A simple graph will suffice (source). The Feds return 80 percent of forfeited assets to law enforcement. What do the states return?

    Only 15 states have laws that that are below the Fed’s return threshold. Far, far more states already have a more expansive “policing for profit” regime set in at the state level than what is available at the Federal level. It makes sense that for those 15 states equitable sharing changes the incentives [2], of course, and the logic extends to the necessary criterion to make a seizure. But the states, driven no doubt by police, prosecutors and tough-on-crime lawmakers, have written very aggressive laws in this manner. They don't need the Feds to police for profit; if anything they'd get in the way.

    The third is that the innovative expansion of civil asset forfeiture is driven at the local level just as much as the federal level. This is the case if only because equitable sharing can only go into effect if there’s a federal crime being committed. So aggressive forfeiture of cars of drunk drivers or those who hire sex workers (even if it your wife’s car) is a local innovation, because there’s no federal law to advance them.

    There’s a lot of overlap for reform across the political spectrum here, but seeing the states as merely the pawns of the federal government when it comes to forfeiture abuse is problematic. Ironically, we see this precisely because we can’t see what the states are doing, but the hints we do know point to awful abuses, driven by the profit motive from the bottom-up.

    [1]  To take two prominent, excellent recent examples. Stillman at the New Yorker: “through a program called Equitable Sharing…At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993.”

    And Michael Sallah, Robert O’Harrow Jr., Steven Rich of the Washington Post: “There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.”

    If either wanted to get these numbers at the state and local levels it would be impossible.

    [2] I understand why one want to put an empirical point on it, and the law needs to be changed no matter what, but the core empirical work relating payouts to equitable sharing isn’t as aggressive as you’d imagine. Most of the critical results aren’t significant at a 5% level, and even then you are talking about a 25% increase in just equitable sharing (as opposed to the overall amount forfeited by locals, which we can’t measure) relative to 100% change in state law payouts.

    Which makes sense - no prosecutor is going to be fired for bringing in too much money into the school district, if only because money is fungible on the back end.

    Follow or contact the Rortybomb blog:
     
      

     

    (Wonkish, as they say.)

    I wrote a piece in the aftermath of the Michael Brown shooting and subsequent protests in Ferguson noting that the police violence, rather than a federalized, militarized affair, should be understood as locally driven from the bottom-up. Others made similar points, including Jonathan Chait (“Why the Worst Governments in America Are Local Governments”) and Franklin Foer (“The Greatest Threat to Our Liberty Is Local Governments Run Amok”). Both are smart pieces.

    The Foer piece came into a backlash on a technical point that I want to dig into, in part because I think it is illuminating and helps proves his point. Foer argued that “If there’s a signature policy of this age of unimpeded state and local government, it’s civil-asset forfeiture.” Civil-asset forfeiture is where prosecutors press charges against property for being illicit, a legal tool that is prone to abuse. (I’m going to assume you know the basics. This Sarah Stillman piece is fantastic if you don’t, or even if you do.)

    Two libertarian critics jumped at that line. Jonathan Blanks of the Cato Institute wrote “the rise of civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as ‘equitable sharing’ agreements, federal law enforcement split forfeiture proceeds with state and local law authorities.”

    Equitable sharing is a system where local prosecutors can choose to send their cases to the federal level and, if successful, up to 80 percent of the forfeited funds go back to local law enforcement. So even in states where the law lets law enforcement keep less than 80 percent of funds to try and prevent corruption (by handing the money to, say, roads or schools), “federal equitable sharing rules mandate those proceeds go directly to the law enforcement agencies, circumventing state laws to prevent “‘policing for profit.’”

    Lucy Steigerwald at Vice addresses all three posts, and make a similar point about Foer. “Foer mentions the importance of civil asset forfeiture while skirting around the fact that forfeiture laws incentivize making drug cases into federal ones, so as to get around states with higher burdens of proof for taking property...Include a DEA agent in your drug bust—making it a federal case—and suddenly you get up to 80 percent of the profits from the seized cash or goods. In short, it’s a hell of a lot easier for local police to steal your shit thanks to federal law.”

    Equitable sharing, like all law in this realm, needs to be gutted yesterday, and I’m sure there’s major agreement on across-the-board reforms. But I think there’s three serious problems with viewing federal equitable sharing as the main driver of state and local forfeitures.

    Legibility, Abuse, Innovation

    The first is that we are talking about equitable sharing in part because it’s only part of the law that we are capable of measuring. There’s a reason that virtually every story about civil asset forfeiture highlights equitable sharing [1]. It’s because it’s one of the few places where there are good statistics on how civil asset forfeiture is carried out.

    As the Institute for Justice found when they tried to create a summary of the extent of the use of civil asset forfeiture, only 29 states have a requirement to record the use of civil asset forfeiture at all. But most are under no obligation to share that information, much less make it accessible. It took two years of FOIA requests, and even then 8 of those 29 states didn’t bother responding, and two provided unusable data. There's problematic double-counting and other problems with the data that is available. As they concluded, “Thus, in most states, we know very little about the use of asset forfeiture” at the county and state level.

    We do know about it at the federal level however. You can look up the annual reports of the federal Department of Justice’s Assets Forfeiture Fund (AFF) and the Treasury Forfeiture Fund (TFF) of the U.S. Department of the Treasury. There you can see the expansion of the program over time.

    You simply can’t do this in any way at the county or state levels. You can’t see statistics to see if equitable sharing is a majority of forfeiture cases - though, importantly, equitable sharing was the minority of funds in the few states the Institute for Justice were able to measure, and local forfeitures were growing rapidly - or the relationship between the two. It’s impossible to analyze the number of forfeiture cases (as opposed to amount seized), which is what you’d want to measure to see the increased aggressiveness in its use on small cases.

    This goes to Foer’s point that federal abuses at least receive some daylight, compared to the black boxes of county prosecutor’s offices. This does, in turn, point the flashlight towards the Feds, and gives the overall procedure a Federal focus. But this is a function of how well locals have fought off accountability.

    The second point is that the states already have laws that are more aggressive than the Fed’s. A simple graph will suffice (source). The Feds return 80 percent of forfeited assets to law enforcement. What do the states return?

    Only 15 states have laws that that are below the Fed’s return threshold. Far, far more states already have a more expansive “policing for profit” regime set in at the state level than what is available at the Federal level. It makes sense that for those 15 states equitable sharing changes the incentives [2], of course, and the logic extends to the necessary criterion to make a seizure. But the states, driven no doubt by police, prosecutors and tough-on-crime lawmakers, have written very aggressive laws in this manner. They don't need the Feds to police for profit; if anything they'd get in the way.

    The third is that the innovative expansion of civil asset forfeiture is driven at the local level just as much as the federal level. This is the case if only because equitable sharing can only go into effect if there’s a federal crime being committed. So aggressive forfeiture of cars of drunk drivers or those who hire sex workers (even if it your wife’s car) is a local innovation, because there’s no federal law to advance them.

    There’s a lot of overlap for reform across the political spectrum here, but seeing the states as merely the pawns of the federal government when it comes to forfeiture abuse is problematic. Ironically, we see this precisely because we can’t see what the states are doing, but the hints we do know point to awful abuses, driven by the profit motive from the bottom-up.

    [1]  To take two prominent, excellent recent examples. Stillman at the New Yorker: “through a program called Equitable Sharing…At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993.”

    And Michael Sallah, Robert O’Harrow Jr., Steven Rich of the Washington Post: “There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.”

    If either wanted to get these numbers at the state and local levels it would be impossible.

    [2] I understand why one want to put an empirical point on it, and the law needs to be changed no matter what, but the core empirical work relating payouts to equitable sharing isn’t as aggressive as you’d imagine. Most of the critical results aren’t significant at a 5% level, and even then you are talking about a 25% increase in just equitable sharing (as opposed to the overall amount forfeited by locals, which we can’t measure) relative to 100% change in state law payouts.

    Which makes sense - no prosecutor is going to be fired for bringing in too much money into the school district, if only because money is fungible on the back end.

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  • New Piece on Where the ACA Should Go Next

    Sep 5, 2014Mike Konczal

    In light of the increasingly good news about the launch of the Affordable Care Act, I wanted to write about what experts think should be next on the health care front. Particularly with the implosion of the right-wing argument that there would be something like a death spiral, I wanted to flesh out what the left's critique would be at this point. Several people pointed me in the direction of the original bill that passed the House, the one that was abandoned after Scott Brown's upset victory in early 2010 in favor of passing the Senate bill, as a way forward.

    Here's the piece. Hope you check it out.

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    In light of the increasingly good news about the launch of the Affordable Care Act, I wanted to write about what experts think should be next on the health care front. Particularly with the implosion of the right-wing argument that there would be something like a death spiral, I wanted to flesh out what the left's critique would be at this point. Several people pointed me in the direction of the original bill that passed the House, the one that was abandoned after Scott Brown's upset victory in early 2010 in favor of passing the Senate bill, as a way forward.

    Here's the piece. Hope you check it out.

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  • The Ferguson Challenge to the Libertarians

    Aug 22, 2014Mike Konczal

    Many people are pointing to the police violence unfolding in Ferguson, Missouri as part of a “libertarian moment.” Dave Weigel of Slate writes “Liberals are up in arms about police militarization. Libertarians are saying: What took you so long?” Tim Carney of the Washington Examiner notes that the events in Ferguson bolster the claim that we are experiencing a libertarian moment because “libertarianism’s warnings today ring truer than ever.”

    It will be a great thing if the horror of what is going on builds a broader coalition for putting the excess of the carceral state in check. But I also think that Ferguson presents a problem for libertarian theory about this situation in particular and the state in general. Their argument is a public choice-like story in which the federal government is the main villain. But this will only tell a partial story, and probably not even the most important one. And, as the deeper story of the town is told, the disturbing economics of the city look similar to what the right thinks is the ideal state. Let’s take these in turn.

    Bottom-Up Militarization

    People on the right are telling a story where the problems of the police are primarily driven by the federal government. As Rand Paul said: “Not surprisingly, big government has been at the heart of the problem.” Big government here is strictly a federal phenomenon though, one where “Washington has incentivized the militarization of local police precincts.” Paul Ryan’s comment on Ferguson is telling: "But in all of these things, local control, local government, local authorities who have the jurisdiction, who have the expertise, who are actually there are the people who should be in the lead." (h/t Digby) The culprits in these criticisms are usually programs, accelerated after the start of the War on Terror, that give military surplus to local police.

    But rather than just a top-down phenomenon of centralized, federal bureaucrats, the police violence we see is just as much a bottom-up, locally-driven affair. “Militarized” police equipment didn’t shoot Michael Brown, or kill Eric Garner in a chokehold. And aggressive police reactions to protests haven’t required extensive military equipment over the past 40 years.

    As Tamara Nopper and Mariame Kaba note in the pages of Jacobin, the idea that there is suddenly a “militarized” police force here betrays that the militarization began in the 1960s in response to the urban crisis. And even though militarized dollars have flowed to all parts of the country, it is in black urban areas where the equipment has been deployed in an aggressive manner by local authorities. And militarization isn't just about equipment, but about the broader framework of mass incarceration and zero-tolerance, order-maintenance policing.

    You can see the consequences of this through simple polls. As Dorian Warren notes, “Because for black Americans, what Sen. Paul disparages as ‘big government’ is actually the government we trust most…blacks are the least likely [racial and economic group] to trust their local governments.” Though these military equipment programs, which give away all kinds of odd things, are a serious problem and should be curtailed, they should be placed within the context of a criminal justice system that is punitive towards minorities and is among the most expansive in the world.

    This has political consequences. Democrats have been weak on criminal justice issues. But for several years Blue Dog Democrats, lead by Jim Webb, have pushed for reform. But Webb's big bill to bring together non-binding suggestions for reform, the National Criminal Justice Commission Act, wasn’t blocked by centrist Democrats. It was blocked by libertarians and conservatives. Most Republicans, including Tom Coburn and Rand Paul, voted against it on the basis of “states’ rights.” Commentators on the right found the arguments dubious and scandalous, but this will become more and more of an issue if the problem is just one of the federal government.

    The Right-Wing Dream City

    If you are a libertarian, you probably have two core principles when it comes to how the government carries out its duties. The first is that people should pay taxes in direct proportion to how much they benefit from government services. The government is like another business, and to the extent it can provide public-like goods the market will not, people should pay only as much as they benefit from them. Taxes should essentially be the individual's price of “purchasing” a government service.

    You also probably want as much of what the government does to be privatized as possible. Government services provided by private firms use the profit motive to seek out efficiencies and innovation to provide the best service possible. But even if it doesn’t, the right’s public choice theory tells us that private agents will do a better job tending to services because of the essential impulse of the public state to corruption.

    So what do we see in Ferguson? It’s becoming clear that there’s a deep connection between an out-of-control criminal justice system and debt peonage. As Vox reports, “court fees and fines are the second largest source of funds for the city; $2.6 million was collected in 2013 alone.”

    These fines that come from small infractions will grow rapidly when people can’t afford to pay them immediately, much less hire lawyers to handle the complicated procedures. So you have a large population with warrants and debts living in a city that functions as a modern debtors’ prison. This leads to people functioning as second-class citizens in their own communities. And as Jelani Cobb notes in the New Yorker, this debtor status keeps many citizens of Ferguson off the streets, not protesting or acting as political agents.

    How did we get here? As Sarah Stillman noted in a blockbuster New Yorker story, this is referred to as an “offender-funded” justice system, one that aims to “to shift the financial burden of probation directly onto probationers.” How? “Often, this means charging petty offenders—such as those with traffic debts—for a government service that was once provided for free.”

    As Stillman notes, this process has grown alongside state-level efforts to privatize probation and other incarceration alternatives by replacing them with for-profit companies. (Missouri is one of many states that does this.) There are significant worries that this privatized probation industry has severe corruption and abuse problems. Crucially, their incentive is less rehabilitation or judging actual threats to the public, and more to keep people in a permanent debt peonage. The state, in turn, gets funded without having to raise any general taxes.

    Having people who “use” the criminal justice system pay for it strikes me as pretty close to the libertarian vision of how taxes should function. And having state power executed by private, profit-seeking entities is the logical outcome of how they think services should function. I’m sure that a libertarian would say that they are against this kind of outcome, though it’s not clear to me how taxation and services along these lines couldn’t do anything other than lead to punitive outcomes. (Perhaps people versed in public choice theory should apply it to what happens when you put public choice theories into practice.)

    This is yet another way in which the growth of market society is wedded to the growth of a carceral state. But thinking through this issue can lead you to interesting places. If you think that this offender-funded system is unfair because the poor don’t have the ability to pay for it, you are basically 90% of the way to an argument for progressive taxation. And if you think private parties using coercive power invites abuse, abuses that should be checked by basic mechanisms of democratic accountability, you are also pretty close to an argument for the modern, professionalized, administrative state. Welcome to the team.

    Follow or contact the Rortybomb blog:
     
      

     

    Many people are pointing to the police violence unfolding in Ferguson, Missouri as part of a “libertarian moment.” Dave Weigel of Slate writes “Liberals are up in arms about police militarization. Libertarians are saying: What took you so long?” Tim Carney of the Washington Examiner notes that the events in Ferguson bolster the claim that we are experiencing a libertarian moment because “libertarianism’s warnings today ring truer than ever.”

    It will be a great thing if the horror of what is going on builds a broader coalition for putting the excess of the carceral state in check. But I also think that Ferguson presents a problem for libertarian theory about this situation in particular and the state in general. Their argument is a public choice-like story in which the federal government is the main villain. But this will only tell a partial story, and probably not even the most important one. And, as the deeper story of the town is told, the disturbing economics of the city look similar to what the right thinks is the ideal state. Let’s take these in turn.

    Bottom-Up Militarization

    People on the right are telling a story where the problems of the police are primarily driven by the federal government. As Rand Paul said: “Not surprisingly, big government has been at the heart of the problem.” Big government here is strictly a federal phenomenon though, one where “Washington has incentivized the militarization of local police precincts.” Paul Ryan’s comment on Ferguson is telling: "But in all of these things, local control, local government, local authorities who have the jurisdiction, who have the expertise, who are actually there are the people who should be in the lead." (h/t Digby) The culprits in these criticisms are usually programs, accelerated after the start of the War on Terror, that give military surplus to local police.

    But rather than just a top-down phenomenon of centralized, federal bureaucrats, the police violence we see is just as much a bottom-up, locally-driven affair. “Militarized” police equipment didn’t shoot Michael Brown, or kill Eric Garner in a chokehold. And aggressive police reactions to protests haven’t required extensive military equipment over the past 40 years.

    As Tamara Nopper and Mariame Kaba note in the pages of Jacobin, the idea that there is suddenly a “militarized” police force here betrays that the militarization began in the 1960s in response to the urban crisis. And even though militarized dollars have flowed to all parts of the country, it is in black urban areas where the equipment has been deployed in an aggressive manner by local authorities. And militarization isn't just about equipment, but about the broader framework of mass incarceration and zero-tolerance, order-maintenance policing.

    You can see the consequences of this through simple polls. As Dorian Warren notes, “Because for black Americans, what Sen. Paul disparages as ‘big government’ is actually the government we trust most…blacks are the least likely [racial and economic group] to trust their local governments.” Though these military equipment programs, which give away all kinds of odd things, are a serious problem and should be curtailed, they should be placed within the context of a criminal justice system that is punitive towards minorities and is among the most expansive in the world.

    This has political consequences. Democrats have been weak on criminal justice issues. But for several years Blue Dog Democrats, lead by Jim Webb, have pushed for reform. But Webb's big bill to bring together non-binding suggestions for reform, the National Criminal Justice Commission Act, wasn’t blocked by centrist Democrats. It was blocked by libertarians and conservatives. Most Republicans, including Tom Coburn and Rand Paul, voted against it on the basis of “states’ rights.” Commentators on the right found the arguments dubious and scandalous, but this will become more and more of an issue if the problem is just one of the federal government.

    The Right-Wing Dream City

    If you are a libertarian, you probably have two core principles when it comes to how the government carries out its duties. The first is that people should pay taxes in direct proportion to how much they benefit from government services. The government is like another business, and to the extent it can provide public-like goods the market will not, people should pay only as much as they benefit from them. Taxes should essentially be the individual's price of “purchasing” a government service.

    You also probably want as much of what the government does to be privatized as possible. Government services provided by private firms use the profit motive to seek out efficiencies and innovation to provide the best service possible. But even if it doesn’t, the right’s public choice theory tells us that private agents will do a better job tending to services because of the essential impulse of the public state to corruption.

    So what do we see in Ferguson? It’s becoming clear that there’s a deep connection between an out-of-control criminal justice system and debt peonage. As Vox reports, “court fees and fines are the second largest source of funds for the city; $2.6 million was collected in 2013 alone.”

    These fines that come from small infractions will grow rapidly when people can’t afford to pay them immediately, much less hire lawyers to handle the complicated procedures. So you have a large population with warrants and debts living in a city that functions as a modern debtors’ prison. This leads to people functioning as second-class citizens in their own communities. And as Jelani Cobb notes in the New Yorker, this debtor status keeps many citizens of Ferguson off the streets, not protesting or acting as political agents.

    How did we get here? As Sarah Stillman noted in a blockbuster New Yorker story, this is referred to as an “offender-funded” justice system, one that aims to “to shift the financial burden of probation directly onto probationers.” How? “Often, this means charging petty offenders—such as those with traffic debts—for a government service that was once provided for free.”

    As Stillman notes, this process has grown alongside state-level efforts to privatize probation and other incarceration alternatives by replacing them with for-profit companies. (Missouri is one of many states that does this.) There are significant worries that this privatized probation industry has severe corruption and abuse problems. Crucially, their incentive is less rehabilitation or judging actual threats to the public, and more to keep people in a permanent debt peonage. The state, in turn, gets funded without having to raise any general taxes.

    Having people who “use” the criminal justice system pay for it strikes me as pretty close to the libertarian vision of how taxes should function. And having state power executed by private, profit-seeking entities is the logical outcome of how they think services should function. I’m sure that a libertarian would say that they are against this kind of outcome, though it’s not clear to me how taxation and services along these lines couldn’t do anything other than lead to punitive outcomes. (Perhaps people versed in public choice theory should apply it to what happens when you put public choice theories into practice.)

    This is yet another way in which the growth of market society is wedded to the growth of a carceral state. But thinking through this issue can lead you to interesting places. If you think that this offender-funded system is unfair because the poor don’t have the ability to pay for it, you are basically 90% of the way to an argument for progressive taxation. And if you think private parties using coercive power invites abuse, abuses that should be checked by basic mechanisms of democratic accountability, you are also pretty close to an argument for the modern, professionalized, administrative state. Welcome to the team.

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  • Rioting Mainly for Fun and Profit: The Neoconservative Origins of Our Police Problem

    Aug 15, 2014Mike Konczal

    Before it was anything else, the neoconservative movement was a theory of the urban crisis. As a reaction to the urban riots of the 1960s, it put an ideological and social-scientific veneer on a doctrine that called for overwhelming force against minor infractions -- a doctrine that is still with us today, as people are killed for walking down the street in Ferguson and allegedly selling single cigarettes in New York. But neoconservatives also sought, rather successfully, to position liberalism itself as the cause of the urban crisis, solvable only through the reassertion of order through the market and the police.

    (Image by Jamelle Bouie.)

    Edward Banfield was one of the first neoconservative thinkers who started writing in the 1960s and '70s and was a prominent figure in the movement, though he isn’t remembered as well as his close friends Milton Friedman or Leo Strauss, or his star student James Q. Wilson. Banfield contributed to the beginning of neoconservative urban crisis thinking, the Summer 1969 "Focus on New York" issue of The Public Interest, which began to formalize neoconservatives’ framing of the urban crisis as the result of not just the Great Society in particular but the liberal project as a whole.

    In his major book The Unheavenly City (pdf here), Banfield set the tone for much of what would come in the movement. Commentary described the book as “a political scientist’s version of Milton Friedman’s Capitalism and Freedom” at the time. It sold 100,000 copies, and gathered both extensive news coverage and academic interest.

    The Unheavenly City’s most infamous chapter is “Rioting Mainly for Fun and Profit.” Fresh off televised riots in Watts, Detroit, and Newark, Banfield argued that it was "naive to think that efforts to end racial injustice and to eliminate poverty, slums, and unemployment will have an appreciable effect upon the amount of rioting that will be done in the next decade or two.” Absolute living standards had been rising rapidly. For Banfield, this was entirely the result of market and social forces rather than the state, and the poor, with their short time-horizons and desire for immediate gratification, would largely be left behind and always be prone to rioting. Today’s classic, if often implicit, repudiations of poor people’s humanity were clearly expressed here.

    Rather than political protests or rebellions, Banfield argued that riots were largely opportunistic displays of violence and theft. He broke down four types of riots: (1) rampages, where young men are simply looking for trouble and act out violently; (2) pillaging, where theft is the main focus, and the riot serves as a solution for a type of collective action problem for thieves; (3) righteous indignation, where people act against an insult against their community; and (4) demonstrations, which are neither spontaneous nor violent but instead designed for a specific political purpose.

    Banfield argued that the poor mainly engaged in the first two types of riots. Righteous indignation riots were a feature of the working class, because the “lower-class individual is too alienated to be capable of much indignation.” Demonstrations were largely the focus of the middle and upper classes, as they ran organizations and were able to make coherent claims on the state.

    At this point Banfield’s text reads like a list of cranky, armchair reactionary observations about riots. It received considerable blowback at the time. What was innovative, for a neoconservative agenda, was where he put the blame. Young men will be young men, the text seems to suggest. The problem is what enables them to riot.

    The initial perpetrators included the media, whose neutral (or even sensationalistic) coverage “recruited rampagers, pillagers, and others to the scene.” They also made the rioting more dangerous by expanding the knowledge base of the rioters. The larger academic community was also at fault since, to Banfield’s ear, “explaining the riots tended to justify them.” Upper-class demonstrators were also responsible for raising expectations of what the poor could demand from the state and from society writ large.

    But according to Banfield, the core problem was modern liberalism, and in an interesting way. The big issue was the “professionalism” and bureaucratization of city services. The rioters had nothing to fear from the police, who were blocked from exercising their own judgement on the ground by an administrative layer of police administrators. In the logic that would form the basis of Broken Windows policing, the poor learning “through experience that an infraction can be done leads, by an illogic characteristic of childish thought, to the conclusion that it may be done.” And potential rioters were learning this because “the patrolman’s discretion in the use of force declined rapidly” with the growth of the modern liberal state.

    Returning, therefore, to a “pre-professional” model of policing is one of the stated goals of Broken Windows. As James Q. Wilson explained in the 1982 Atlantic Monthly article that popularized the topic, “the police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community.”

    Before the modern liberal state of accountability and due process, the police force wasn't judged by “its compliance with appropriate procedures” but instead by its success in maintaining order. Since the 1960s, “the shift of police from order maintenance to law enforcement has brought them increasingly under the influence of legal restrictions… The order maintenance functions of the police are now governed by rules developed to control police relations with suspected criminals,” writes Wilson. According to this theory, order is preserved by the police out there, acting in the moment against minor infractions with a strong display of force, not by liberal notions of accountability and fairness.

    This neoconservative vision that started in the 1960s and continues into today doesn’t just inform local arguments about policing, but rather the entire policy debate. So much of the debate over the (neo)conservative movement emphasizes suburban warriors, or evangelicals, or the Sun Belt, or the South. But as Alice O’Connor demonstrates in her paper "The Privatized City: The Manhattan Institute, the Urban Crisis, and the Conservative Counterrevolution in New York," there was a distinct urban character to this thinking as well. Rather than a crisis of race relations, police violence, poverty, or anything else, rioting and the broader urban crisis were framed by the neoconservative movement as a crisis of values and culture precipitated by liberalism.

    The broader urban crisis, in this story, hinges not on structural issues but on personal morality and behavior that can be restored by the extension of the market. Crime and urban “disorder” fit right next to social engineering and failing state institutions as a corrupt legacy of the liberal project and its bureaucratic, administrative governing state. Only the conservative agenda, as O'Connor puts it, of “zero-tolerance law enforcement, school ‘choice,’ hard-nosed implementation of welfare reform, and the large-scale privatization of municipal and social services” is capable of dismantling it. Only through the market, individual responsibility, and freedom from government “interference” can order result from the restoration of “political and cultural authority to a resolutely anti-liberal elite.” This legacy harnesses police excess to the triumph of the market. And as we see, it will be hard to dislodge one while the other reigns supreme.

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    Before it was anything else, the neoconservative movement was a theory of the urban crisis. As a reaction to the urban riots of the 1960s, it put an ideological and social-scientific veneer on a doctrine that called for overwhelming force against minor infractions -- a doctrine that is still with us today, as people are killed for walking down the street in Ferguson and allegedly selling single cigarettes in New York. But neoconservatives also sought, rather successfully, to position liberalism itself as the cause of the urban crisis, solvable only through the reassertion of order through the market and the police.

    (Image by Jamelle Bouie.)

    Edward Banfield was one of the first neoconservative thinkers who started writing in the 1960s and '70s and was a prominent figure in the movement, though he isn’t remembered as well as his close friends Milton Friedman or Leo Strauss, or his star student James Q. Wilson. Banfield contributed to the beginning of neoconservative urban crisis thinking, the Summer 1969 "Focus on New York" issue of The Public Interest, which began to formalize neoconservatives’ framing of the urban crisis as the result of not just the Great Society in particular but the liberal project as a whole.

    In his major book The Unheavenly City (pdf here), Banfield set the tone for much of what would come in the movement. Commentary described the book as “a political scientist’s version of Milton Friedman’s Capitalism and Freedom” at the time. It sold 100,000 copies, and gathered both extensive news coverage and academic interest.

    The Unheavenly City’s most infamous chapter is “Rioting Mainly for Fun and Profit.” Fresh off televised riots in Watts, Detroit, and Newark, Banfield argued that it was "naive to think that efforts to end racial injustice and to eliminate poverty, slums, and unemployment will have an appreciable effect upon the amount of rioting that will be done in the next decade or two.” Absolute living standards had been rising rapidly. For Banfield, this was entirely the result of market and social forces rather than the state, and the poor, with their short time-horizons and desire for immediate gratification, would largely be left behind and always be prone to rioting. Today’s classic, if often implicit, repudiations of poor people’s humanity were clearly expressed here.

    Rather than political protests or rebellions, Banfield argued that riots were largely opportunistic displays of violence and theft. He broke down four types of riots: (1) rampages, where young men are simply looking for trouble and act out violently; (2) pillaging, where theft is the main focus, and the riot serves as a solution for a type of collective action problem for thieves; (3) righteous indignation, where people act against an insult against their community; and (4) demonstrations, which are neither spontaneous nor violent but instead designed for a specific political purpose.

    Banfield argued that the poor mainly engaged in the first two types of riots. Righteous indignation riots were a feature of the working class, because the “lower-class individual is too alienated to be capable of much indignation.” Demonstrations were largely the focus of the middle and upper classes, as they ran organizations and were able to make coherent claims on the state.

    At this point Banfield’s text reads like a list of cranky, armchair reactionary observations about riots. It received considerable blowback at the time. What was innovative, for a neoconservative agenda, was where he put the blame. Young men will be young men, the text seems to suggest. The problem is what enables them to riot.

    The initial perpetrators included the media, whose neutral (or even sensationalistic) coverage “recruited rampagers, pillagers, and others to the scene.” They also made the rioting more dangerous by expanding the knowledge base of the rioters. The larger academic community was also at fault since, to Banfield’s ear, “explaining the riots tended to justify them.” Upper-class demonstrators were also responsible for raising expectations of what the poor could demand from the state and from society writ large.

    But according to Banfield, the core problem was modern liberalism, and in an interesting way. The big issue was the “professionalism” and bureaucratization of city services. The rioters had nothing to fear from the police, who were blocked from exercising their own judgement on the ground by an administrative layer of police administrators. In the logic that would form the basis of Broken Windows policing, the poor learning “through experience that an infraction can be done leads, by an illogic characteristic of childish thought, to the conclusion that it may be done.” And potential rioters were learning this because “the patrolman’s discretion in the use of force declined rapidly” with the growth of the modern liberal state.

    Returning, therefore, to a “pre-professional” model of policing is one of the stated goals of Broken Windows. As James Q. Wilson explained in the 1982 Atlantic Monthly article that popularized the topic, “the police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community.”

    Before the modern liberal state of accountability and due process, the police force wasn't judged by “its compliance with appropriate procedures” but instead by its success in maintaining order. Since the 1960s, “the shift of police from order maintenance to law enforcement has brought them increasingly under the influence of legal restrictions… The order maintenance functions of the police are now governed by rules developed to control police relations with suspected criminals,” writes Wilson. According to this theory, order is preserved by the police out there, acting in the moment against minor infractions with a strong display of force, not by liberal notions of accountability and fairness.

    This neoconservative vision that started in the 1960s and continues into today doesn’t just inform local arguments about policing, but rather the entire policy debate. So much of the debate over the (neo)conservative movement emphasizes suburban warriors, or evangelicals, or the Sun Belt, or the South. But as Alice O’Connor demonstrates in her paper "The Privatized City: The Manhattan Institute, the Urban Crisis, and the Conservative Counterrevolution in New York," there was a distinct urban character to this thinking as well. Rather than a crisis of race relations, police violence, poverty, or anything else, rioting and the broader urban crisis were framed by the neoconservative movement as a crisis of values and culture precipitated by liberalism.

    The broader urban crisis, in this story, hinges not on structural issues but on personal morality and behavior that can be restored by the extension of the market. Crime and urban “disorder” fit right next to social engineering and failing state institutions as a corrupt legacy of the liberal project and its bureaucratic, administrative governing state. Only the conservative agenda, as O'Connor puts it, of “zero-tolerance law enforcement, school ‘choice,’ hard-nosed implementation of welfare reform, and the large-scale privatization of municipal and social services” is capable of dismantling it. Only through the market, individual responsibility, and freedom from government “interference” can order result from the restoration of “political and cultural authority to a resolutely anti-liberal elite.” This legacy harnesses police excess to the triumph of the market. And as we see, it will be hard to dislodge one while the other reigns supreme.

    Follow or contact the Rortybomb blog:
     
      

     

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