 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Joining me is Tim Lynch, director of the Cato Institute's Project on Criminal Justice. So Tim, we're going to have an interesting discussion day of creating a sensible criminal justice system from libertarian standpoint. And I guess sort of the first question for that would be, what is the proper scope of criminal law from a libertarian point of view? Okay. Well, I think we would start with the role of government generally. And we agree with the idea set forth in the Declaration of Independence that individuals have the right to life, liberty, and the pursuit of happiness and the role of the government is to secure those rights. So when we are talking about the criminal law, I think we would want the police and prosecutors to be investigating, arresting, and prosecuting those who interfere with those rights, people who steal, people who beat other people up, rape, and murder. So it's those basic core offenses is where we want the government to be utilizing criminal law procedures. Do we think there's something uniquely criminal about a violation like that that's different than a fender bender, right? When I get into a fender bender on the road, we don't usually call it a criminal offense, but if I punch someone in the face, we usually do. Is there a big difference there? Well, yeah, I think that's a good point. I mean, we normally do not think it's the place for the police and the prosecutors to get involved with accidents. That is something that should be handled through our civil law. It's not somebody deliberately trying to interfere with your life, liberty, or property. If somebody were to deliberately try to run you down with their car, that's attempted murder, and that would be treated differently. It's safe to say though that the libertarian worldview would have fewer crimes than we have now, probably. Much fewer crimes, that's right. One of the problems with our expansive criminal code today is that it diverts the police and our criminal justice system away from what they should be focusing on, which is these core offenses. There's a lot of theft that goes on that the police are simply too busy doing other things in order to track down those offenders. And one of those, of course, is drug offense. And a lot of people would know that libertarians are not very high on prohibition of drugs. It doesn't seem like something that would be a crime if no one else is involved. That's right. As far as like our present work today at the Cato Institute, we put a lot of emphasis on the drug war because it does involve an incredibly big part of our present-day criminal justice system when you look at what the police are focusing on, where prosecutor time and court time and where our prison space is being devoted, it is on drug war offenses. And this is something, as you said, from the libertarian point of view, should not even be a crime in the first place. So this is one of our top priorities. And of course, saying it's not a crime does not mean that it's not something that the state maybe shouldn't be involved with at all. If I've been, people ask me, well, are there any drugs that should be illegal at all? You know, marijuana, we're starting to have more people agree, but heroin, maybe the state can be involved, but maybe it shouldn't be a crime. Well, I think the role of the government when it comes to drugs should be to facilitate informed decision-making. That means that if somebody wants to sell a drug, it's okay for the government to put labeling requirements on this so people know what the ingredients are, recommended dosages, and possible side effects if the drug is being used with something else. I think the government has a role there in helping people make informed decisions about how they want to use drugs, but should people be sent to prison for using a drug that the government thinks is wrong or shouldn't be used? No, that wouldn't be an appropriate place for the government or the criminal law. And what about the federal role in that, of course, too, because that seems to be not a very good use of federal power. If you're going to have drugs be illegal, it doesn't seem constitutional to have it be on a federal level. Right. Now we're shifting away from, like, libertarian theory into our American system and how our criminal justice system is organized in America under our Constitution. And under our Constitution, the primary role for the criminal law is basically at our state and local level. At the federal level, our federal Constitution really speaks of just three federal offenses, piracy, counterfeiting and treason. They never expected the federal government to be involved in much of the everyday crime-fighting type of stuff like the violent crime we were talking about earlier, you know, with the murders and the muggings and theft and these types of things. They all expected the local governments to handle that type of thing. The role of the federal government should be very, very limited in the criminal law context and, as you were saying, these days much of the time and resources of the federal government is involved in the drug war. And so I assume that the federal prison population is not mostly filled of pirates, counterfeiters and treason. People commit treason? Absolutely not. Most of the federal prisoners are in there on drug violations. The overwhelming number of them are. Now, the federal government and the federal criminal code has been expanding like crazy for the past 30 or 40 years. We started out with those three basic federal offenses. It is now ballooned to about 4,000 or 5,000 federal statutes that are on the books. Now, these aren't all prosecuted evenly. Some of them are obscure. There's not many people in prison for them. The main statute that is violated is the Controlled Substances Act, which is the basis for federal drug offenses. And that was passed in 1968. And I think that's part of the story that we should tell here is the criminal code and then the prison population and going basically since the 60s forward. And especially in terms of imprisonment, how many people are actually imprisoning now and what those numbers are? Do you have those numbers in terms of what rate of imprisonment we are? We are locking up more than 2 million people in the United States. Now, to put that into some kind of perspective, it took us more than 200 years to lock up the first million. And it's just over the past 30, 35 years that we've locked up the second million to give you an idea of the rapid expansion of our prison population. During the 1990s and early 2000s, we were building on average a prison a week in the United States. Incredible amount of prison expansion. As soon as they were built, they were rapidly filled up with people, with prisoners. And again, most of the engine behind all of this is the drug war. Yeah, the drug population in the prisons is very big and the numbers are pretty stark too. We have about 23% of the people in the world who are imprisoned total. There's about 10 million people who are imprisoned across the entire world. And of those, 10 million, 2.2 million of them are Americans, which gives us nearly 25%. In terms of the way that we do this, in terms of crime rates, we usually talk, or rates we usually talk, per 100,000 people. And the current U.S. prison population, and this is both prison and jail, jail being a more temporary type of incarceration than prison, is about 707 per 100,000 people, which is about 200 more than that bastion of freedom Russia who comes in second, or Wanda, depending on those bastions of freedom. So maybe that means that we need to start thinking about whether or not America is land of the free in that sense. Yeah, another way I've heard it expressed is that the U.S. has about 5% of the world's population, but we have, as you said, about 25% of the world's prisoners. And this does raise immediate questions about, you know, this is supposed to be the land of the free, and it raises that basic question about why is it that this country needs to lock up so many people. And we really need to humanize it a little bit because, you know, you hear about these statistics, but again, behind these numbers is basically what's going on is you're taking a human being and you're saying, this person needs to be put into a cage. He needs to be put behind very tall barbed wire fences. Why do we need to put so many of those people in those types of facilities? It really is very troubling. But, of course, obvious response would be if the crime rate was going up and many people believe that it has been going up, but if the crime rate was going up, then you probably should have more people in prison. Does that explain the prison population? Well, what I say is I think there is a connection between locking people up and the crime rate, but what needs to be said is that if you take somebody who his plan for the day is to go mug people, if you take that person off the streets and out of the neighborhoods and you put him in a prison cell, you know, that's going to have an impact on crime in the neighborhood. If you lock up a rapist or you lock up somebody who, again, he's a career criminal and what he does every day or every week is break into somebody's home to steal things, if you lock these types of people up, it is going to have an impact on crime. But if you take somebody, you know, like a teenager who is selling drugs on the corners in Baltimore or in Los Angeles and you take a person like that and you put them in a prison cell, it doesn't have any impact at all on the drug trade. And that is what has been going on. We're taking tens of thousands of people like that and putting them in our prison facilities and it's really not having any impact on the drug trade. That is a thriving black market today as it has been for years. Interestingly, the crime rate has always been a big driver of this but in an interesting way. So starting in the late 60s, up through the early 90s, crime went up pretty quickly. Actually, between 74 and 84, the murder rate doubled in the country. So if you look at prison population numbers, in 1972, we had about 161 per 100,000 people in prison and by 2007, we had 767. What isn't seen in that data though is that starting at about 94, 93, 94, the crime rate started plummeting and then there was a huge divergence between the prison rate which was still going up and the crime rate which was going down and it's still actually going down even though Pew polls and other polls show that most people believe it's still going up. So crime rate does not actually explain the reason for this incarceration. The main way you explain it is the creation of new crimes in the sense of the drug war and then some other expansion of the federal criminal code. The enforcement without leniency of putting more people in prison for doing those crimes and then the higher punitive nature of the sentences that are being applied to those crimes, mandatory minimums, three strike laws, all those things create the constellation and of course the fact that for the longest time there was never a bad... The voters always voted for more criminal enforcement. What could be the downside of voting for more criminal enforcement? Yeah, that's right. I mean the politicians pandered to fear over crime and every single congressional term it was another crime package where they were saying that these measures, mandatory minimums, more penalties, more prosecutors were necessary in order to address the crime problem and there was just that never-ending expansion of the criminal justice system all under this rubric of being tough on crime. We sometimes compare the drug war to the dangerous experiment with alcohol prohibition and one thing we have to remember from that experience is that when we ended alcohol prohibition the violent crime rate in the country declined for 10 straight years and so even though the crime rate has been going down in this country I think we would see even further declines in violent crime once we were to move away from the drug war because we do have these rival gangs that do fight one another from time to time in order to get control over the lucrative drug territory. Of course we're hearing more about the horrendous violence in Mexico and Central America but that violence sometimes creeps over to the border into our cities like Los Angeles where the Crips and the Bloods flight one another. The thing that's way hard to measure too is the violent crime or other related crime that doesn't seem to be drug related but is drug related and people have tried to figure out you have a certain amount of people in prison for drug crimes, drug related crimes but then you also might have someone in prison for robbery but the reason he was robbing some places because he needed money to get heroin which produces more prison population and some of the numbers that we had at least on the federal level in 1980 the drug related imprisonment rate on a federal level was 3 per 100,000 and by 2000 it was 35 per 100,000 which is a 10 times increase that was all concurrent with the war on drugs with Reagan's escalation and public education programs all that concurrent didn't seem to decrease the amount of drug users Yeah, that's right and the other thing perverse consequence of the drug war is that we've got these drug offenders in prison right now and they're there with these mandatory minimum penalties of 10, 15, 20 years and so when you have a prison facility that's operating over its capacity and you're the warden and then you know there's going to be 200 more prisoners coming next month he has to release some prisoners and he can't release the nonviolent drug offenders because they're there under these mandatory minimums which means they can't be released so what happens perversely is that they end up letting the violent criminals you know the muggers and the rapists, child molester these types they let them out of these prison facilities before they have served their full sentence in order to make room for more nonviolent drug offenders and so it makes our communities less safe How do we get to the point of mandatory minimums? What was sentencing like before we had these in the 50s or 60s? Well, what happened is that you know crime and the concerns over crime became a political issue and then I think you had some sensationalized cases of where maybe some judges did let some violent offenders they got lenient sentences and then they committed other horrendous violent crimes and politicians picked up on some of the outrage in the community over that but it was kind of like we lost our perspective about whether that was typical whether it was common and so you had some of these sensationalized cases drive the policy change to say these politicians who kind of demagogued a little bit and in some states and said you know we can't trust judges to meet out proper sentences so we're going to take it out of the hands of judges by saying alright from now on all prisoners will get these mandatory minimum penalties you know whether it's 5, 10, 15, 20 years During the Bush-Dukakis we're on an 88 there was a big story about someone the Dukakis had let out was it Willie Horton? That's right in Massachusetts they had these policies in place where I mean Dukakis didn't specifically you know say this prisoner should be let out but he had policies in place in his state where you had violent offenders spending time in halfway houses where they they could roam the community free and one of those prisoners was Willie Horton a person with a long history of violent crime and when he was put into one of these halfway houses he went out and committed more violent crimes so the Bush administration picked up on that and said you know Dukakis in Massachusetts and the policies they have in place there are too liberal for the United States and so they made crime a big issue over that. Let's go back to something you mentioned previously about the federal criminal code the 4,000 to 5,000 federal criminal statutes we often call that over-criminalization which is discussed a lot by Cicado and Heritage Foundation National Association of Criminal Defense attorneys what does that term over-criminalization does it generally mean especially in the federal context? It means that the government is beginning to criminalize activities that it shouldn't and that can mean it's the federal government is duplicating crimes that are already on the books at the state and local level or turning regulatory infractions that had been previously handled with like a civil fine turning those into criminal offenses and then felonies where people could actually go to prison for what had previously been considered a civil paperwork violation and we've seen the proliferation of those types of crimes over the years just multiply and multiply and multiply until today we have a spider web of regulations where it's really hard for almost anybody to go through life without tripping over one of these rules or regulations and we have some there's always interesting stories in this that I personally have favorites and I'm putting that in scare quotes because they're horrible stories but this is the good use of the word Kafkaesque or Welle and especially when you get wrapped up in a criminal procedure that should never have happened to you do you have a personal favorite story of the over criminalization literature well one one story involves a guy named Brian Akin who who purchased some firearms in Colorado and then he was in the process of moving to New Jersey and he knew New Jersey had stricter rules in place than Colorado but everybody agrees that he lawfully purchased a few firearms in Colorado and he was in the process of moving to New Jersey and he checked with the local police about what he had to do in order to comply with New Jersey law and despite that he was pulled over and the police searched his car found these firearms and they prosecuted him for felony violations of New Jersey's gun laws and at every turn the system just seemed to break down he thought Brian Akin thought if he talked to the police officers he could convince them of the circumstances of his case and once they understood he was in the process of moving and he showed them his paperwork for the lawful violations that they would let him go but that didn't happen then he thought he could explain it to the prosecutors and they would get them to drop the charges but that didn't happen and then he went to trial confident once they knew all of the surrounding circumstances but then to his chagrin the judge would not after the jury would come back in his case and ask for like more explanations as to the law and what the law is with respect to moving to the state the judge denied these requests from the jury and the jury ended up coming back and convicting him it was like a total breakdown of the system and it is an example about how ordinary people who don't consider themselves to be criminals who people when you hear this story you can't believe it happened that there has to be something else there that I'm not telling you but these things do happen and it's very tragic and it's hard to believe that this is America when you hear that type of thing. What happened eventually to Brian? Well the judge refused these overtures from the jury to get more instructions and so the jury came back and convicted him fortunately for Brian there was a lot of people in New Jersey paying attention to his case they were like talk radio hosts who kind of kept his case in the news and eventually they sought a pardon from Governor Chris Christie so after he had served several months what Christie did was commute his sentence and he didn't give him a full pardon which is I think what he deserved but he commuted his sentence so he was released but he is still facing other things associated with his criminal conviction he cannot own firearms he's had trouble with custody of his son over this criminal violation he's ineligible to have certain go into certain professions because of his criminal violations and walls this is something that continues to hobble him in his life Yeah that story is absolutely astounding and unfortunately it's one of many one of the ones that most gets me is the story of a guy named Abner Shonawetter who was a lobster fisherman in the Gulf area he would fish for these spiny lobster tails which had different links associated with them and at one point when he was brought back on to coming back on to shore with his lobster tail catch because apparently the story goes that some competitor of his apparently reported him to the feds but they searched his boat and they found that he had been packaging these lobster tails in cardboard boxes rather than bags or maybe vice versa it was either bags or versus boxes it was the wrong thing according to regulations so he was accused of violating a statute that was called the Laci Act which is makes it illegal to transport wildlife foreign fauna within the United States taken in violation of another country's laws this other country was Honduras and the accusation was basically that he was a poacher who was poaching Honduran the Honduran wildlife the Honduran spiny lobsters and he was violating Honduran law which made it into a federal offense with the possible multiple year prison sentence and at every single point of this it was never a defense that he didn't know about Honduran law he didn't know how to comply with Honduran law because ignorance to the law is no defense is often said and that is true and the federal prosecutors who I can't decide if they were either sadists or political grandstanding putting out press releases saying that they had captured a huge poaching ring and then they got everyone of his partners into play because because now all the money that they had ever made on lobsters was all contraband money so it was basically just like drug money to them so now they get all these these money laundering charges and eventually he's got he gets eight years in prison a 70 year old man gets eight years in prison for this and the crazy part of this at one point in the story Honduras keeps coming back and just gonna say that they keep coming back in and saying this is not our law this is not our law this is wrong they file a breach with the court and say this is a wrong interpretation of our law this did not violate our laws but at some point it was just irrelevant that Honduras said it didn't violate their laws and I've met that man and he's tried since he got out of prison he's about 80 now I think to tell Congress that this is absurd there is no reason anyone should be spending any time in prison for putting master tales in the wrong packaging but nevertheless we do it all the time right and that is such a sad story I mean even when the defense team as you said got officials from the country of Honduras to file a brief in his defense saying what this man did did not violate our law therefore it would have made the Lacey prosecution fall apart because it hinges on a violation of foreign law and yet the federal prosecutors continued for whatever reason it's totally bizarre and very troubling and the other aspect of these cases is that these people can't believe it's happening to them and then their own attorneys sometimes will go to them and tell them even though we think what you did did not violate the law we think you should nevertheless plead guilty because this if you insist on going to trial this may take years to resolve and you'll end up going bankrupt paying my law firm all these fees in order to defend you in court whereas if you plead guilty early in the process maybe the federal prosecutors will bump it down to a misdemeanor you'll serve three months and get out of prison and it's a very difficult situation for people because you know it's easy for people to say well I never plead guilty to anything I didn't do but for so many of these people when they've got relatives you know people to support in their family and the prospects of bankruptcy versus 20 year prison sentence versus one year it's not so easy to make these decisions and a lot of them end up when their own attorneys are telling them they should plead guilty they end up pleading guilty to charges even though they're innocent and then they'll carry that around for the rest of their life filled with resentment about the way in which their government treated them as they should and the plea bargaining system is of course most people aren't getting trials right I mean criminal trials are not the main way we deal with defendants now yeah that's one thing I always impress in my lectures because most people have this mistaken idea we kind of know in a general way that we have plea bargains and some people plead guilty and some people go to trial but they really don't realize how lopsided the system is 95% or more of our cases in the American criminal justice system do not go to trial they're resolved through some kind of plea bargain arrangement only a handful of cases go to trial and these are the ones that you sometimes hear about on the news because it might be a celebrity or somebody like that who can afford to pay it's either celebrities that can afford to pay a legal team to go to trial or sometimes it involves a horrendous offense where the person really has nothing to lose by going to trial like in a murder type case and the very proliferation of the criminal code facilitates this plea bargaining system because they can put 10, 15, 20 charges on you conspiracy, muddy laundering everything related to it and then have you in every possible direction wrapped up in the criminal code and give you a huge daunting task to try and explain to a jury that this entire thing is ridiculous just happened to Mr. Schoenwetter and the lobster tails and of course his crime was a strict liability crime too which if you could explain what that is Right. A strict liability crime does away with the idea of what lawyers call criminal intent and criminal intent used to be a basic part of our criminal justice system it basically means that there's a line between lawful and unlawful conduct and then you deliberately crossed over that line that's the idea behind criminal intent and so criminal punishment is appropriate but in a strict liability offense it means that the prosecution does not have to prove that you deliberately crossed a line and what that means is that people can get trapped up and tripped up over vague rules and regulations that they don't understand fortunately like when it comes to our tax laws everybody understands how complicated the tax code is but you can't be prosecuted for tax evasion unless the prosecution can prove that you deliberately falsified something in order to evade your taxes. You can't be criminally prosecuted for a tax violation kind of like because of an accidental computation or something like that and what we need is that type of safeguard with respect to all the other regulations that the federal government has put in place but we don't have that and that's why some people can kind of get tripped up by the Lacey Act and some of these other arcane regulations that are out there. It seems like we just seen a constitutional amendment that says that no one will go to prison for mispackaging lobster tails, maybe not that specific but at least something that says these cannot be situations, crimes that, because crimes are the wrong word, they're civil violations at the very least that could ever put someone behind bars or at least the rule lenity which is an old common law rule. Yeah, that's a great rule that is very American that I'm always talking about when these subjects come up. The rule of lenity basically says that if a rule can be interpreted one of two ways, the citizen ought to get the benefit of the doubt but often times in our modern law the courts give the benefit of the doubt to the prosecutor and the government and their reading of the law and that goes against everything else that is in our Bill of Rights where we have proof beyond a reasonable doubt where we have protections like the jury must unanimously agree that somebody has violated the law. The rule of lenity should give the benefit of doubt to the accused not to the state. So I want to switch gears for the last little section here. We've been talking about increased punitiveness of the justice system both in terms of what's a crime and how it's going to be punished. We've talked about how the voters would like to vote for more criminal enforcement whether it was Democrat or Republican, there was always someone who said I'm tough on crime, tough on crime always a reason to vote for someone but now we have a new thing that came into the news recently with the Ferguson incident when an unarmed black teenager Michael Brown was shot by a police officer in Ferguson, Missouri which created a bunch of protests but I think the thing that at least maybe here at Cato didn't expect because we've been talking about it for so long was that suddenly people would start to notice that these police officers looked like soldiers and what they were doing to respond to the Ferguson protests they might as well have been in Fallujah and now we have this discussion of police militarization something we've been talking about for a while so can you give us a little bit background on what's happening with our police in that sense? Yeah we have been criticizing the militarization of American policing for many, many years. We started in 1999 with a study that we published called Warrior Cops and then followed it up a few years later in 2006 with a study called Overkill by Radley Balco further talking about this militarization trend. There's a couple of things going on what we mean by militarization. On the one hand we're talking about how our civilian police departments are beginning to emulate the tactics of the military. You mentioned the way they dress, the military garb, helmets, camouflage uniforms, M-16s using flashbang grenades in their policing activity. At the other end there is the problem of our formal US military also getting involved in policing activity so we have, you know, the Navy in the Caribbean looking for drug smugglers and that sort of thing. So we have at both ends this militarization. But what has come to light and is in the news since Ferguson is how these local police departments even small towns are getting armored vehicles from our Department of Defense. They're getting... That are mine resistant for all those mines out there that the gangs always have those anti-personnel mines. Yeah, these are vehicles that are built for the battlefield like you said, of Fallujah in Afghanistan and Iraq. And yet all these small towns in America are getting these armored vehicles and they're getting these automatic weapons. And then creating these militarized units. And then the second problem is that these militarized units were originally created with the idea that they would be called out in extraordinary situations like a hostage situation. Something that's beyond the capability of the ordinary patrol person. And we've gotten away from that as well. Now they're being called out into more routine policing activity where they will go out and execute a warrant for somebody who's selling marijuana. These militarized units will roll out and execute a search warrant on people's homes. In many of them, violent entries with like what we call no-knock raids. Describe that a little bit more than no-knock raids, how those work out when they're justified supposedly. Yeah, well the... There's this basic idea in American law called the Castle Doctrine which basically goes back to that idea that our homes are supposed to be our castles and the government is supposed to treat our homes with great respect. And part of that was a principle called knock and announce. That means the police, when they have to execute a search warrant in somebody's home they go up to the front door, they knock they announce that they're the government that they're there with a search warrant. And they give the people inside an opportunity to answer the door so that the search can take place without violence. But we've gotten far away from this with this no-knock tactic where the police you know, you see it on TV sometimes where they run up to the front door it's one knock and a few seconds later they use a battering ram to break down the front door and they go rushing in. And this has become really the norm of American policing now where it's battering rams on the front door other agents throw these grenades into the windows along the side of the house to distract people on the inside and it just creates a chaotic situation sometimes there's violence because the homeowner when these things happen in the middle of the night they think they're being attacked by criminals not the police and so they will get retrieved in gun and there's unfortunate shootings that happen between the civilian occupants and the police. A few weeks ago in Atlanta a SWAT team threw a flashbang grenade into a window and it tragically landed in the crib of a toddler. The grenade exploded and that toddler is now in a coma because of it so there's lots of tragic consequences to these militarized tactics that are in use now. I actually think the toddler was able to get out of the hospital so he's kind of okay. Lucky. But that brings up another question is I assume that the police officer being roundly disciplined for their actions and getting held accountable for these mistakes? No, not at all. Unfortunately in a situation like that they will express their regret that they of course did not intend to endanger the life or take the life of innocent children but what is so often the case is that they'll say no we were doing what we were trained to do this is how we conduct a raid of people's homes and they'll try to deflect responsibility on to maybe somebody in the house who was selling marijuana or try to deflect responsibility on to an informer who did not tell them everything and there's this failure to accept responsibility for the reckless tactics that they are using on a weekly basis. But wasn't this just that what was needed for police to protect themselves as drug lords and other criminals started arming themselves more and more wasn't this just the right response to make sure that we're protecting men and women in the line of duty? Well that is the rationale that is offered but when you scrutinize it really doesn't hold up I mean when the drug people have weapons it's really there to protect them from rival dealers who are coming to rob them if they know that the police are coming usually there's not these violent shootouts between drug dealers and the police if the police announce themselves clearly they will surrender but using these types of tactics what happens is they roll into a neighborhood and try to break into somebody's home at night or very early in the morning and as I said people are and sometimes these are into the wrong apartments and homes and when that happens when people are awoken suddenly in these types of situations they think they're being attacked by criminals and that's why we have a violent shootout so it's really perverse and counterproductive So how did they get this gear this military gear? They are getting it from our department of defense who has been making surplus military equipment and weaponry available either for free or at heavily discounted prices to local police departments and you know it's not just in the major metropolitan areas that's one of the things we learned from Ferguson is that people are learning that it's not just going to you know LA Chicago and New York this military weaponry is flowing to small towns all across America and you know police departments that have you know 10 people and haven't had a violent crime problem under the guise of fighting crime and fighting terrorism they're driving around with these armored vehicles and M16s. It seems like we have an almost military industrial complex now put on top of a military industrial and policing complex for the police who want to get some of this gear and the military complex who overproduces it of course for our own military and then just decide to distribute it out what's the harm what would be the harm of distributing this to the police officers. Yeah I think that is definitely part of the problem I mean what do they mean surplus military weaponry and equipment why doesn't can't the U.S. military you know keep this you would think that they would need it at some point and the perverse thing is what's going to happen is they're going to then request in Congress that they need more armored vehicles or they need more M16s and there is an industry behind this who is more than willing to say okay we'll produce more for you. That's one of the perversities of government. I think the real irony of the situation going back to sort of the general thing we've been talking about is that voters and politicians just like there was never a bad vote for more criminal enforcement getting tougher on crime there's also a never bad vote whether as a voter or as a congressman to protect police officers definitely to make sure that they're protected so we started giving them this weaponry and I think what no one thought would happen would be that the weaponry that was given to the police officers would change how the police officers behaved that they would start using we give them a mine resistant vehicle and we would say well they're supposed to use this when they get into very hostage situations, active shooter situations but maybe what they never thought is that they would use it to just go and serve a search warrant on a bunch of barbers which did happen a few weeks ago to check their licenses or to search everyone at a bar they just kind of seem to think that the gear is cool and they enjoy using it I think that's right and the other point that needs to be made is that these tactics are used against people who don't have any political power and that's why it kind of goes on year after year you know like I would say like if these tactics were used against Governor Rick Perry's brother's family or something like that you could be sure that there would be a big re-examination of the policy of militarized weaponry and tactics in Texas but when they're used against poor people they go in and break down doors of apartments and and then the police will either just say sorry and shrug and walk away and nothing changes the policy just persists until you have like a Michael Brown situation or another situation where somebody is killed and then then the media starts paying attention and starts asking the questions like we've seen in Ferguson about like why do you need this why is it necessary and then finally policy makers are being forced to answer these questions and now we're having hearings on Capitol Hill where these tough questions which should have been asked long time ago are finally being asked unfortunately we don't usually start talking about something like this until something horrible like the Michael Brown situation happened but let's look at how that whole the constellation of all these things we've been talking about affect a community like Ferguson in terms of how they have experienced the police and what they think of law they have a lot of respect for the state in the neighborhood of Ferguson because they we have an incredibly punitive criminal justice system which disproportionately affects minorities they're getting extremely long prison sentences African Americans at a rate higher than even accounting for how whether or not they commit crime at a higher rate so for example African Americans are just about as likely to do drugs as whites if maybe a little bit more but negligible just about as likely yet they are nine to eleven times more likely to be caught doing it and three to five times more likely to serve prison time for doing it so and then you have these militarized police to enforce these highly punitive laws and this overblown criminal code in these neighborhoods that have a racial despair with a racial disparity in these racial neighborhoods and it seems like the only thing that these people in these neighborhoods could think is that this is basically an occupying force that occasionally comes into the neighborhood neighborhood takes young males away locks them up for a few years for things that they shouldn't be locked up for and then returns them and we're supposed to respect the law enforcement that seems to be the big underlying story here I think that's right and a lot of like police tactics that would never be used in the more affluent parts of town are used in these neighborhood neighborhoods tactics like we've done talking about with like no knock raids but also stopping frisk tactics against people who are just pedestrians walking around the neighborhood this is where the police just run up to people and tell them to put their hands against the wall or hands against a car as they're frisked for weapons or drugs these are tactics that would not be tolerated you know in DC like in the Georgetown neighborhoods they have a heavy chase and yet they're used in the poorer neighborhoods and so the people in the poorer neighborhoods have a different experience with the police than middle class people who live in other parts of town and we're also talking earlier about the number of people that we lock up but there's also millions of people who are back in the neighborhoods who are there under probation and parole and these are people who are constantly under a threat of arrest to go back to prison if they like fail a drug test or if they do if they like miss a curfew or things like that it's another experience that people just can't relate to you know when you're living in another part of town and these are what reporters are starting to pick up on about these simmering tensions that are in these neighborhoods and when then you have a shooting like with Michael Brown his body is left in the street for hours the police just kind of seem to you know they start off shrugging like they don't have to identify the officer involved and people just got the sense that this kid's life isn't worth anything as if the department's just going to shrug and everybody's going to move on that's where things I think started to boil over and why you had the protests in the streets and I always like to remind people that the media you know did good reporting on the paramilitary aspect of the Ferguson Police Department but they were there to report on that they didn't arrive because of the shooting of Michael Brown they went to Ferguson because people were protesting and the national media went to Ferguson to find out what the protesting was all about and I'm glad they did and now they're beginning to shine a light on some of these simmering tensions in Ferguson but other cities around the country and the Ferguson Police Department which is totally caught off guard by the scrutiny that the media brought you know we got those reports about the reporters being roughed up for not doing any you know they were sitting in a McDonald's writing their stories and suddenly you have Ferguson Police Department officers roughing them up and we had the officers you know pointing weapons at people who weren't doing anything and they were really the department was caught off guard by this scrutiny and it was a it was good it was a shining a light on what goes on all the time and so we're finally having a discussion about that. It seems that having that sense in these communities of which Ferguson is just an example especially intercity African-American communities other minority communities having the people in those communities have a sense that the cops are not working for them helping them out they're not part of the community that seems to it would hurt so many different levels of being able to get criminal enforcement being able to solve crimes because the people wouldn't want to work with the police it would it's it's a huge problem to have that the sense that the police aren't occupying force rather than part of the community. Yeah that's right I mean and going back full circle to where we started about the role of the criminal law I mean it's like the police the the original idea of the police was we used to call them peace officers like when there's a disturbance they come on the scene to restore the peace but these days they roll into neighborhoods and you know in these militarized units to execute a no knock raid in the middle of the night they're coming in and they are often creating the disturbance and the people in these neighborhoods don't feel that the police are coming in to help them you know help them you know in a because their house has been burglarized they're going to the police are there to help them recover their property and find the perpetrator that he won't you know commit another offense against their neighbors or their relatives they don't have that sense at all it's like the police are rolling into their neighborhoods threatening everybody with arrest unless they you know snitch on somebody and it's a totally different experience with the police and one as you said the phrase that you hear over and over again is you feel like they're an occupying threatening force rather than a helpful force so what do we do in the bigger picture it seems like all these things are connected what can we do to try and solve at least some small part of this well there's a lot to be done we need to stop this militarization trend that's the first thing that needs to be done to get at the root of so many of these problems we need to end the drug war that is really creates a whole other multi-layered set of problems just by waging this billion-dollar war on drugs that that is the main thing that needs to be done and fortunately the political climate is beginning to shift on that at least with respect to marijuana so we have states like Colorado and Washington and other states this fall that are reexamining their laws on marijuana so that is a big sign of progress but once we get that done there are other things that need to be done getting back to that idea of criminal intent and working our way back to the first principles of government and the role of the criminal law in our society we need to keep working our way back to that thanks for listening if you have any questions or comments about today's episode you can find us on twitter at freethoughtspod that's freethoughtspod freethoughts is a project of libertarianism.org and the Kato Institute and is produced by Evan Banks to learn more you can find us on the web at www.libertarianism.org