The Deincarcerator? On Rand Paul, race and ending the War on Drugs

Good morning Austin:

Last Tuesday, Rand Paul announced he was seeking the Republican nomination for president.

In his speech, Paul delivered this line:

I see an America where criminal justice is applied equally, and any law that disproportionately incarcerates people of color is repealed.

No other Republican candidate for president, or as far as I know, anything else, has delivered a line like that.

And, for that matter, no Democrat.

It is a truly radical statement on two counts.

First, taken literally, I am not sure how many  laws would be left standing. White collar crimes, I suppose.

But, at least as remarkably, especially for a Republican, it is an acknowledgement of the way that race, or racism, distorts the criminal justice system in America, and calls for applying a kind of  strict “disparate impact” standard that would seek to remove from the books laws that, while not discriminatory on their face, have a discriminatory impact.

In her 2010 book, The New Jim Crow, Michelle Alexander, professor at Ohio State University Moritz School of Law, writes

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather we rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination – employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service – are all suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

Now, as unlikely as it seems, Rand Paul, with a line buried in his announcement for president, seems to be suggesting he is prepared to dismantle the new Jim Crow.

There are two possibilities here:

1) Paul really didn’t understand the full implications of what he was saying. He was merely expressing a sentiment, a disposition, an abstract ideal, or maybe simply engaging in a little sloppy symbolic politics that was not meant to be read too closely or taken or too seriously. And, worse than that, for him to throw out a line like that without clarity or backup, suggests a candidate not at all ready for what’s ahead.

2) Paul is serious about making criminal justice, and ending the drug war, a centerpiece issues of his campaign. If so, it is an issue that could enable him to outflank Hillary Clinton – whose husband, as president, presided over the escalation of the War on Drugs and a boom in incarceration – on an issue of preeminent concern in the black (and also brown) community. And it is an issue that, were Paul to actually be elected president and act on it, could arguably do more to change the material condition of life for millions of African Americans and the communities they live in than anything the first African American president has been able to accomplish.

By way of background, from the Prison Policy Initiative.

 

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Paul’s line on incarceration didn’t get a whole lot of attention when he delivered it, and what attention he did get, focused on the unlikelihood that he actually meant what he said.

From VOX:

We knew Rand Paul had a pretty deep commitment to ending mass incarceration. But his speech announcing a 2016 run for president might have promised something more radical than even he would want: legalizing every type of crime, including murder and assault.

And while it’s clear that’s not what Paul actually wants to do, the line illustrates an important difference between Paul and many criminal-justice reformers on the left about how to fix racial disparities in the criminal justice system.

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The majority of people in prison in the US are doing time in state prisons, and most of them have been convicted of violent crimes. But across every single category of crime that the Bureau of Justice Statistics publishes data for, non-Hispanic whites make up a smaller percentage of the prison population than they do of the nation at large.

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From Vox

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Just take a glance at this chart. The bar at left shows the percentage of non-Hispanic white Americans: 62.6 percent. None of the other bars across the chart for white prisoners comes close to that high.

 As president, of course, Paul would only have influence over federal prisons — and a majority of all federal prisoners are serving time for drug offenses, which seems more in line with what Paul wants to repeal. But the data on federal prisoners isn’t as good as the data on state prisoners. Federal data does show, however, that the prisoners released in 2013 across all offense categories were disproportionately black and Hispanic — and since African Americans tend to get longer prison sentences for any type of federal crime than whites, that indicates that every category of federal offense also disproportionately imprisons people of color, as well.

It’s likely that Paul will clear up this talking point as he polishes his presidential campaign. But it illustrates that as much as Paul’s emphasis on criminal justice reform might overlap with African-American voters’ priorities, his diagnosis of the problem is different. Paul genuinely does think too many laws create the opportunity for racial disparities in the criminal justice system — that’s why he blamed bans on selling loose cigarettes for the death of Eric Garner. Many African Americans and liberals, on the other hand, think the laws aren’t necessarily the problem, but the way they’re being enforced and policed is.

Well, I take the point that Paul’s starting point might be that there are simply too many laws, and for “many African Americans and liberals,” the starting point might be their racially discriminatory consequences. But if, for example, we are talking about the drug war, there are quite a few “African-Americans and liberals” who also think the laws themselves are the problem.

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As for “clearing up” exactly what he meant, here was Byron York in the Washington Examiner in the aftermath of Paul’s announcement.

The Paul campaign says the senator’s words were misunderstood. “Sen. Paul was referring to nonviolent crimes,” campaign spokeswoman Eleanor May told me via email, adding that the passage in question was “a reference to his criminal justice reforms.”

May sent me the same answer: “He was referring to nonviolent crimes.”

That’s not very satisfying. That’s like Lincoln signing the Emancipation Proclamation, saying, “I’m freeing the slaves,” and his spokesman later explaining that he was only referring to freeing the slaves in states that remained in rebellion after Jan. 1, 1863.

I would have thought a bold statement like what Paul said would have some staff support, some follow-up.

As to Paul’s criminal justice reform agenda, May referred me to what she sent York, who wrote:

May sent along brief descriptions of five bills Paul is sponsoring that deal with the criminal justice system. These are the Paul camp’s descriptions of the measures:

The REDEEM Act: Creates a judicial process for adults to seal non-violent criminal records on the federal level. It also creates an automatic expungement of records for non-violent juveniles under the age of 15. It mandates the FBI to update their criminal background check system to ensure that employers receive accurate information. States are incentivized to have substantially similar legislation on the state level or risk losing appropriations for law enforcement agencies.

Justice Safety Valve Act: Judges can depart from mandatory minimum sentencing laws if they find that it is in the best interests of justice to do so. This would increase judicial discretion and allow judges to make individualized determinations about the proper punishment for defendants.

Civil Rights Voting Restoration Act: If passed, this would restore the voting rights of every non-violent felon in the country. Non-violent felons would be able to vote in federal elections only and states that do not change their laws to reflect this would not receive federal prison funds.

RESET Act: This bill re-classifies simple possession of controlled substances — very small amounts — as a misdemeanor rather than a low-level felony. It also eliminates the crack-cocaine disparity.

FAIR Act: This bill ensures that the federal government would have to prove by clear and convincing evidence that seized property was being used for illegal purposes before it’s forfeited. Forfeited assets would be placed in the Treasury’s General Fund instead of the DOJ’s Asset Forfeiture Fund. This shift would remove the profit incentive police officers currently have to seize and forfeit property. The bill would also protect the property rights of citizens by eliminating the ability of state law enforcement to circumvent state asset forfeiture laws and use more lenient federal standards instead.

While Paul’s line in his speech on incarceration was mostly ignored, Paul Mirengoff at Power Line blog, wrote that it was disqualifying.

Yesterday, in announcing his run for the presidency, Rand Paul demonstrated his unfitness for the office by calling for the repeal of any law that “disproportionately incarcerates people of color.” In effect, as John and I pointed out, Paul thereby called for the repeal of virtually every criminal law.

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Even with the clarification, Paul’s position remains inane and dangerous. Why should non-violent acts that now constitute crimes be legalized just because a particular group doesn’t obey the current prohibition? No criminal law should be subject, in effect, to a “criminals of color veto.”

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Even with his backpedaling, Rand Paul is calling for a race-based criminal justice code. This should disqualify him from the GOP nomination.

But for those who have spent decades trying to move the national conversation in the direction Paul was talking about, there was more tolerance for his imprecision.

From Marc Mauer, executive director of the Sentencing Project:

Yes, I’d picked up on that statement from Sen. Paul. While it’s been very encouraging to see him raise criminal justice issues in a high profile way over the past couple of years, it’s not always done in a very precise way. In this case, I’m assuming that he probably means any laws where there are “unwarranted racial disparities.” And even then, would you repeal them, such as the federal crack cocaine penalties, or modify them to match the powder cocaine laws. And clearly, for a host of reasons, African Americans are disproportionately arrested and convicted of crimes like murder and armed robbery, but unlikely anyone would advocate doing away with all those penalties.

But Sen. Paul is hardly the first politician to speak in imprecise ways at times, so I’m still pleased to see his ongoing advocacy on these issues.

Rand Paul flip flops - $20 at the Rand Paul campaign store

Rand Paul flip flops

And this, in an email from NYU sociologist Jeff Manza, co-author of the 2006 book, Locked Out: Felon Disenfranchisement and American Democracy:

I see Paul’s comment as part of an emerging and intriguing dialogue between libertarians, including the Koch Brothers (!), and the long-standing criminal justice reform community.

They (the Kochs) also funded a big conference in DC about 6 weeks ago with a lot of the usual liberal suspects involved. So there is an emerging dialogue, and one that goes well beyond drug legalization (the previous meeting ground). No question the motivations are different for various participants – the libertarians see the criminal justice system as “big government” to be torn down as part of the quest for a free market utopia – but that’s okay in my view.

Their involvement along with other libertarians has the potential to turn criminal justice questions into “wedge” issues where the conventional left-right divide breaks down and we get serious and long-overdue policy discussion going. (Imagine a Republican President debate where Paul’s position gets discussed!).

The felon disenfranchisement question is also intriguing here – Republican operatives around the country have been seeking ways to hold down the black vote in recent elections and criminal justice reform runs head-long into that agenda (which of course cannot be publicly discussed but is well-known to insiders).

I’m not quite sure what to make of the racial angle in Paul’s comment. Liberals have focused on the race angle to attack mass incarceration for 20 years, without getting much traction up until now. Most of the libertarian discussions I’ve seen have not centered specifically on racial disparities. So we’ll have to keep an eye on that.

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On the Koch role in criminal justice reform effort, from Dana Liebelson at the Huffington Post in February:

WASHINGTON — Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.

In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture. Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.

Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago. The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.

“We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum,” Booker told HuffPost in an email. “To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission — that includes Republican members of Congress and other leaders I’ve begun to work with like Newt Gingrich, Grover Norquist and Charles Koch’s team.”

And from Molly Ball at the Atlantic in March:

Though the Kochs are best known—and, to liberals, notorious—for the massive amounts of money they pour into politics, they have lately been calling attention to a less polarizing crusade: an attempt to address what they term “the overcriminalization of America.” But not everyone is convinced that their efforts are quite so sincere.

Critics such as Robert Greenwald, director of the documentary Koch Brothers Exposed, suspect that the push to roll back the criminal code is really just the brothers’ deregulatory agenda by another name. Indeed, Charles Koch, the company’s chairman and CEO, has said he became interested in criminal-justice reform after a grand jury’s 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law. The company spent six years fighting the charges and eventually settled with the government for $10 million. Seen in this light, the criminal-justice pitch is just another attempt to manipulate the political process to advance the company’s financial interests. That’s the view of the liberal group American Bridge, which maintains the anti-Koch “Real Koch Facts” website. “Their own bottom line isn’t just an important factor in their activity, it’s the only thing,” a spokesman for the group, Ben Ray, told me.

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And yet the Kochs have found many willing partners on the left for this effort, even among their erstwhile critics. In 2011, the civil-rights activist and former Obama administration adviser Van Jones cited the Kochs as emblematic of the “economic tyranny” plaguing America, declaring, “We will not live on a national plantation run by the Koch brothers.” He appears in the Koch Brothers Exposed (tagline: “The 1% at its very worst”). But Jones has welcomed the Kochs’ support for his new Cut50 project, which aims to halve the prison population over the next decade. At a recent panel discussion in Washington, he sat next to Holden and gave him a hug. Koch Industries has agreed to participate in an upcoming conference Jones is sponsoring on prison reform. When I asked Jones if it made him uncomfortable to team up with people he’s previously depicted as villains, he responded, “When you’ve got more than 2 million people behind bars, I’ll fight alongside anybody to change those numbers.”

During his recent visit to Austin, Vermont Sen. Bernie Sanders, who is likely going to seek the Democratic nomination for president, decried what he described as the Koch brothers’ agenda to dismantle government, citing the 1980 Libertarian Party platform, when Davd Koch was the party’s candidate for vice president.

Eight years later, the Libertarian Party candidate for president was Ron Paul, whose subsequent runs for president as a Republican have, in many ways, laid the organizational and intellectual groundwork for his son’s candidacy.

Ron Paul was in Austin Saturday at a one-day conferenceStop the Wars on Drugs and Terrorism –  sponsored by the Future of Freedom Foundation and Young Americans for Liberty at the LBJ Auditorium at the LBJ Library. The conference also featured Glenn Greenwald, the attorney and journalist who broke the Edward Snowden story, and Radley Balko, who blogs about criminal justice, the drug war and civil liberties for The Washington Post.

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There was a large mostly student-aged crowd of about 400. They gave Greenwald a standing ovation, and Ron Paul an even more passionate standing ovation. There wasn’t a lot of press coverage. I was there, along with Brian Rosenthal of the Houston Chronicle and Patrick Svitek of The Texas Tribune.

Jeff Frazee, executive director of  Young Americans for Liberty, who was national youth coordinator for Paul’s 2012 presidential campaign, said they had not made much of an effort to draw media coverage because, coming even as Rand Paul was completing an announcement tour of the  early primary and caucus states, they figured that the reporting would focus less on the conference and more on finding points of difference and tension between father and son.

And indeed, while there was no mention of Rand Paul Saturday, Ron Paul did say that, though he agreed that members of the Senate (including Rand) were right to demand that they have a constitutional role to play in reviewing and approving the president’s nuclear deal, he thought that what was really motivating them was, “they’re out to stop peace, they’re terrified that peace might break out.”

Rosenthal wrote a good piece on “the central challenge facing the younger Paul’s bid for the Republican Party nomination: attracting mainstream conservatives while keeping the support of the dedicated and wealthy libertarian base that propelled his dad to stardom in the last two presidential primaries. While Paul has embraced much of his father’s legacy, including skepticism of the Federal Reserve and strict drug laws, he carefully has been moderating some positions on foreign policy and other issues.”

That said, what was most remarkable to me on Saturday was not the distance between Ron and Rand Paul, but the fact that both father and son were quite independently, that same day, states apart, talking about the same thing – the folly and pernicious consequences of the War on Drugs.

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Glenn Greenwald and Ron Paul sign books at the LBJ LIbrary on Saturday

 

Here from Mark Hensch of The Hill, with Rand Paul in Nevada:

Sen. Rand Paul (R-Ky.) on Saturday blamed flawed criminal drug legislation as major factor behind urban conflict and related prison overcrowding.

“The War on Drugs has created a culture of violence and puts police in an impossible situation,” Paul told audience members at the Desert Vista Community Center in Las Vegas.

“It has fostered tension in our inner cities,” he added. “There is an undercurrent of unease in our country.”

Paul argued America’s recent racial conflicts may stem from unfairness inherent in the laws and their enforcement. By making them fairer, he charged, citizens of all backgrounds would receive fair judgement from authorities.

“Criminal justice reform is not a black problem or a white problem,” Paul said.

“Everyone should be treated the same under the laws of this country regardless of what religion they are, what color their skin is or how poor they are,” he concluded.

The Kentucky lawmaker said punishments too harsh for their crimes had combined with uneven law enforcement in minority communities. The resulting mix was a perfect storm of inequality, he declared.

“If you look at statistics, white people are using drugs at the same rate as black people,” Paul said, the noted the incarceration rates among different ethnicities.

“We have snatched up so many people of one race that it is now unfair,” he added. “We should do something to make it fair.”

The White House hopeful criticized big government as the source of failing drug policies. Bureaucracy’s size and scope, Paul said, had crowded out space for individual freedom and liberty.

“We have a government that has run amok,” he stated.

And from David Weigel’s report on Paul in Nevada for Bloomberg:

“Go meet people who live in poverty, and ask them why their sons all seem to be incarcerated or killed,” he said. “The war on drugs has created a culture of violence and put police in an impossible situation. Three out of four people in jail for drug crimes are people of color, but if you look at the statistics, white people are using drugs at the same rate. We have somehow snatched up so many people of one race that it is now unfair, and we should do something to make it fair.”

Paul’s audience — largely white, as has been the case in every state — broke into loud cheers. It did the same after Paul mentioned the case of Eric Garner. “If a guy is selling loose cigarettes and not paying the king’s ransom in taxes, couldn’t we give him a ticket?”

Qualify this anyway you will, but it is interesting to me that a bona fide Republican candidate for president on the opening tour of his campaign is drawing loud cheers from white audiences by declaring the War on Drugs not just a failure, but essentially a racist endeavor.

And this is where he parts company with his father, whose long years on the fringe of American politics led to some pretty sketchy associations with the white right.

Thinking about this, I recalled that in his maiden speech in the Senate, Paul, who occupies the desk that belonged to Henry Clay, “the Great Compromiser,” looked instead for inspiration to the uncompromising anti-slavery crusading of Clay’s cousin, Cassius Clay, a Kentucky planter and politician, and other abolitionists like William Lloyd Garrison and Frederick Douglass.

And, like Nixon to China, the practical fact is that a Republican president is more likely to be able to end the drug war than a Democratic president.

From Alexander’s The New Jim Crow:

In 1991, the Sentencing Project reported that the number of people behind bars in the United States was unprecedented in world history, and that one fourth of young African American men were now under the control of the criminal justice system. Despite the jaw-dropping impact of the “get touch” movement on the African American community, neither the Democrats nor the Republicans revealed any inclination to slow the pace of incarceration.

To the contrary, 1992, presidential candidate Bill Clinton vowed that he would never permit any Republican to be perceived as tougher on crime than he. Tue to his word, just weeks before the critical New Hampshire primary, Clinton chose to fly home to Arkansas to oversee the execution of Ricky Ray Rector, a mentally impaired black man who had so little conception of what was about to happen to him that he asked for dessert from his last meal to be saved for him until the morning. After the execution, Clinton remarked, “I can be nicked a lot, but no one can say I’m soft on crime.”

Once elected, Clinton endorsed the idea of a federal “three strikes and you’re out” law, which he advocated in his 1994 State of the Union address to enthusiastic applause on both side of the aisle. The $30 billion crime bill sent to President Clinton in 1994 was hailed as a victory for the Democrats, who “were able to wrest the crime issue from the Republicans can make it their own.” The bill created dozens of new federal capital crimes, mandated life sentences for some three-time offenders, and authorized more than $16 billion for state prison grants and expansion of state and local police forces. Fa from resisting the emergence of the new caste system, Clinton escalated the drug war beyond what conservatives imagined possible a decade earlier. As the Justice Policy Institute has observed, “the Clinton administration’s `touch on crime’ policies resulted in the largest increases in federal and state prison inmates of any president in American history.”

Ron Paul was between stints in Congress when the crime bill became law, but we know he was against it.

Here, an excerpt from the August 1994 Ron Paul Survival Report, his political newsletter.

The Clinton crime bill passed by the House and Senate centralizes enforcement in myriad ways. And it also takes the astounding step of recruiting foreigners from the Royal Hong Kong Police to serve in federal “law enforcement” (Section 5108) Fortunately, some state legislators are standing up to this outrageous idea, which reminds me of King George’s Hessian mercenaries used against our Founding Fathers.

The crime bill will also cost the American taxpayers more than $30 billion, yet it will not result in less crime. The bill itself is a “crime” in that it violates the Constitution. It also violates the rights of the American citizens by having more of their wealth confiscated through taxation.

Federal crime control is contrary to all that was intended by the Founders. It raises the number of federal crimes from 22 to 70. The one benefit from this is that it is stirring up the judges and prosecutors in the state law enforcement agencies whoa re losing control. May they someday reject this and all other unconstitutional federal mandates, in obedience to the 10th Amendment.

Of course, this being the Ron Paul Survival Report, the condemnation of the crime bill – under the headline Hessians – follows another entry, under Haitians and Americans,  condemning Clinton for intervening in Haiti on behalf of deposed President Jean Bertrand Aristide:

It is a sign of Bill Clinton’s weakness that he has allowed himself to be dragged into this conflict. He knows it is against his long-run self interest. No regular American wants to take over Haiti and put it on AFDC and food stamps, which is what would happen.

And, the Hessian entry is immediately followed by another, Murderous Clintonians, which begins:

The media trumpeted “Independent Counsel” Robert Fiske’s conclusion that Vincent Foster killed himself and was not therefore murdered, contrary to reports in this newsletter and others.

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Let’s see. In the entire Foster report, not one mention was made of the decade-long adulterous affair between Hillary Clinton and Vince Foster. Yet this affair has been well documented by many sources. The press in Arkansas and Washington spoke of it often. Everyone in the White House knew about it. Yet this fact, which would seem to have some bearing on the Foster investigation, was never mentioned.

Where does this all lead for Rand Paul, son of Ron and disciple of Cassius Clay, and for Republican voters?

From Ed Kilgore, writing at Talking Points Memo:

Put simply, Paul offers limited-government conservatives an interesting bargain: They can take America right back to the economic and social policies of the Coolidge Administration—if they give up spying on, imprisoning and sending off to war young people and minorities.

The problem, of course, is that the attractiveness of this bargain depends on how much of the spying, imprisoning and warmaking agenda Republicans are willing to give up for electoral victory, and also their assessments of Paul’s credibility as a vote magnet for young and minority voters. So potentially the candidate himself is caught in a negative dialectic wherein accommodations of conventional conservatives reduce his attractiveness to those outside the Cause. And that in turn reduces the “electability” advantage which makes him attractive to those who might otherwise prefer the uncompromising Ted Cruz or Scott Walker.

It is entirely unclear whether Paul can thread this particular needle.

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All in all, the odds are good that Rand Paul’s candidacy will come to represent less a “big tent” where traditional conservatives happily mingle with entirely new constituencies than what Ron Paul’s campaigns ultimately became: people handing out tracts on the margins of the same old crowd of elderly white folks, and maybe drifting off to smoke dope under the rafters and dream of revolutions.

 

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