Criminal Justice Reform, Social Justice

Which is worse?

Consider each of the following scenarios:

Scenario 1: Police officer is riding along when he spots a car with a black male driver.  As he follows a policy of racial profiling, the officer checks the database and finds out that the car is not insured.  He thus pulls the car over. When he approaches the car, he smells marijuana; that gives him probable cause to check the vehicle and upon further inspection, he finds a firearm and cocaine.  He arrests the driver.  The marijuana possession is a misdemeanor, the cocaine possession is a felony, the firearm possession is a felony even though he is licensed to own the gun (because he has it in his possession while committing a felony—the possessing of the cocaine).

Scenario 2: Police officer is riding along and checks as many license plate numbers as he can as he passes cars.  He simply types in the plate numbers on his keypad conveniently located next to his steering wheel.  In one case, he finds out that the car is not insured.  He thus pulls the car over. When he approaches the car, he smells marijuana; that gives him probable cause to check the vehicle and upon further inspection, he finds a firearm and cocaine.  He arrests the driver.  Same charges as in scenario 1.

Scenario 3: Police officer is riding along in a new vehicle that has equipment that automatically gathers the license plate numbers of all cars in its vicinity, checks them on the database, and notifies the driver of the vehicle if any show up with problems.  The officer is notified of a car that is not insured.  He thus pulls the car over. When he approaches the car, he smells marijuana; that gives him probable cause to check the vehicle and upon further inspection, he finds a firearm and cocaine.  He arrests the driver.  Same charges as in scenario 1 and 2.

So which is worse? The racial profiling in scenario 1, the activity that seems very similar to texting and driving in scenario 2, or Big Brother’s presence in scenario 3?

  • Fritz

    No problem with scenario 1: racial “profiling” is statistically sound. And, like scenarios 2 and 3, it’s not intrusive. None of the scenarios is worse than the others; they’re all valid ways of trying to protect the publc.

    • j r

      No problem with scenario 1: racial “profiling” is statistically sound.

      You don’t understand statistics.

    • King Goat

      It’s only statistically sound if most blacks are criminals (which is not the same as most criminals being black). Otherwise, the false positives will be more numerous.

      • Sean II

        True as far as it goes, but you’re missing half the picture. False positive rate doesn’t get us anywhere near a decision until we’ve weighed the outcomes.

        Let’s say there’s something called Plague X, which despite a low overall base rate happens to be the leading cause of death among some particular sub-group in the population.

        Now imagine Test A is the best known method of screening for Plague X, although even when applied with clinical discretion to the high-risk sub-group, it still produces 19 false positives for every true 1.

        Do we have enough information to say Test A does more harm than good? Nope. We still must weigh the cost of those false positives again the toll of letting Plague X go unchecked.

        And what if, say, it turns out that the typical side effect of a false positive for Test A is: mild physical discomfort, with sharp but brief emotional distress, and virtually no risk of permanent harm for those who follow test instructions?

        Now the score is: 1 death or serious injury prevented per 19 cases of uncomfortable side effects, with an iatrogenic death rate of something like 1 per 100,000, against a disease that when unimpeded has been known to kill 20 times that many, maiming countless others, terrorizing whole communities, etc.

        • M S

          I’ll be honest. I’m having a hard time reconciling this comment with the one you made about 4th grade boys below. I mean, sure, a hypothetical scenario can be constructed where a test with a high false positive rate is still worth conducting. But the scenario you constructed is so far removed from how racial profiling is actually practiced anywhere in this country as to almost render it a non sequitur in the context of this discussion.

          If your comment was merely intended to tweak King Goat by challenging his implication that a methodology with more false positives than true positives cannot be “statistically sound”; that’s fine. I’d be lying if I said I hadn’t made similarly puckish comments myself. I just don’t accuse other people of acting like fourth graders at the same time.

          • Sean II

            Wrong. The case I have almost perfectly captures the dilemma of criminal justice in American cities today. Right down to the numbers.

          • M S

            Let’s be clear here: the topic of discussion is racial profiling, not criminal justice in general. You don’t get to assume an elision between the two. If you want to make the argument that you can’t have one without the other, make it. But no way do you get to point to the benefits of policing or criminal justice in general and then claim that this justifies racial profiling specifically without saying a whole lot more.

            With that being said, my precious comment was based on the assumption that your “Test A” was some variety of racial profiling as exemplified in Cohen’s Scenario 1 above. If that’s not the case, please let me know what you meant it to refer to, and I’d be happy to proceed from there. If that is the case, I’d be really interested to know:

            (1) the name of a policing organization practicing racial profiling that manages to prevent 1 death or serious injury for every 20 people stopped by the police.

            (2) the name of a policing organization practicing racial profiling that does so “with clinical discretion”

            (3) the name of a policing organization practicing racial profiling that has no other alternatives to doing so aside from “letting [whatever Plague X is referring to (homicide?)] go unchecked”

            I had assumed the situation you described and the numbers you gave were by way of example only. Since you claim they have specific sources, I’d like to know what they are.

          • Sean II

            1) Lots of them. That number would be reasonable in the rough parts of Baltimore, Detroit, Chicago, Oakland, St. Louis, Camden, D.C., Atlanta, Memphis, Birmingham, Jackson, etc. And remember, it’s not 1 incident prevented per 20 stops. It’s one incident prevented per 20 pre-textual stops of young black men, a population subset which at just 3% of the census accounts for half of American violent crime.

            2) All of them, to a one. You seem not to understand what “clinical discretion” means. It doesn’t mean “laboratory precision”. “Clinic” and “lab” are opposites. Decisions in the clinic are made by doctors who have local knowledge of their patients (history, physical, how they smell in the exam room, etc), and they use that to make decisions which cheap seat observers would find hard to understand. Shit like: “According to the latest published protocols, this lab value is significant for X, but knowing what I do about Mr. Jones I think we should treat for an atypical presentation of Y instead”. That’s what clinical discretion is, and cops do the same thing in their job.

            3) All of them, again. Strange question. A serious case of the cash-on-the-table fallacy. You evidently know nothing about crime or police work, and yet feel sure that agencies across the country are just ignoring a better way of doing things, for no reason. Get serious. If there was a way for police departments to escape the criticism the comes with racial profiling, they’d all rush to adopt it. The fact that they haven’t tells you there is no such way.

          • King Goat

            MS, I don’t see Sean’s comments as so much about the statistical soundness, but about the weighting. Something really, really bad prevented might justify lots of somethings much less bad done in the preventing. I’m curious about your statistical point though, Sean II’s example seems to me to be an unacceptable false positive rate (.95) as a statistical matter. But it’s late on a tiring day, and perhaps I’m missing something here.

        • King Goat

          “1 death or serious injury prevented per 19 cases of uncomfortable side effects”

          Wow, you just straight up and told Ben Franklin, Blackstone and Voltaire to f*ck themselves!

          Points for boldness I guess, perhaps consequentialism shouldn’t be timidly embraced. Two points:

          1. I’d have to join MS in wanting to know where you get your 1:19 ratio from. Honestly curious.
          2. As we’ve discussed, the difference between violent crime committed by men in general and women in general is at least as great as the same difference between blacks and whites. Should we be gender profiling, pulling over men in general?

          • Sean II

            1) That “100 guilty men” line is moronic, and always has been.

            Criminals violate rights. Their victims don’t feel any better for thinking “thank god it wasn’t a state actor who robbed me, raped me, cut my throat, etc.”

            100 rights-violating criminals on the loose = hundreds or indeed thousands of innocent people harmed.

            Dumbest quote ever in the canon of liberal ideas.

            2) Every police department in America already does practice gender profiling, as they should.

            The fact that people don’t mind gender profiling but lose their shit about racial profiling is not my problem. I’m consistent. They aren’t.

          • King Goat

            1. OK, I get it, but a few points. While I think it’s evolved to 100 to 1, the quote originally is 10 or 2 to 1. I’m curious, what do you think of that original ratio? And why do you think such bright persons shared the idea? Were they stupid fourth graders, or were they getting at something? I think it has to do with the idea that in efforts that we control to ‘make things better’ our first rule has to be to ‘do no harm’ ourselves.

            But, more to the point, you’ve got a bigger problem it seems, because your ratio is actually on the opposite side: you’re basically saying ‘let’s make 19 well persons go through (we’ll say a rather mild form of ) chemo to cure one who has otherwise terminal cancer.’ (I’d also still like to know where you’re getting that ratio from).

            2. “Indeed, call anyone but me to explain that bit of hypocrisy. Because I don’t share it.”

            You don’t? With all due respect, I’m not so sure. I see you talking quite a bit here about the black-white crime gap and how people need to be more realistic about what that might mean and warrant in response. I don’t hear you going on about how rapey and violent men in general are, and how people need to ‘get’ that and start coming up with more realistic responses. In fact, you’ve been quite critical of, say, campus feminists who kind of preach that.

          • Sean II

            In reverse order.

            2) You don’t hear me going on about how much more violent men are, because everyone already knows that and freely admits it. For whatever reason that’s one of those obvious facts it’s still okay to notice, and act upon. No one gets upset when you point out that men commit 90% of homicides, 100% of rapes, and whatever it is, 95% of robbery or deadly weapon assault. Those numbers are right, and thanks be Jeebus because for the moment we’re actually still allowed to say so.

            You do hear me going on about other differences in crime/violent behavior, because those facts are obscured behind some of our societies most hysterically defended taboos. So much so, that many people are now genuinely ignorant of those facts. Look around, you’ll see some of them right there.

            1) Of course the calculus improves when you drop from 100 to 1, down to 10 to 1, but it doesn’t improve enough. Hell, I’ll even drop it to 5 to 1, just being friendly.

            Now put that 5 to 1 in real terms:

            Left side of the scale, you have Andy Dufresne. There’s your 1 innocent man wrongly convicted. Definitely a bad thing.

            So let’s avoid that. But maybe first we should calculate what happens when instead 5 guilty men go free, making the very generous assumption that each man will only ever commit one more crime.

            Right side of the scale, that gets you 1 murder victim, 1 rape victim, 1 person maimed for life in an aggravated assault, 1 injured in a simple assault, and 1 traumatized by armed robbery.

            Clearly the second is a lot worse than the first, involving many more rights-violations.

          • King Goat

            First point (which was firstly the second, head spins): fair enough that less people will get as upset about the mere assertion of the disparity. But I think you’ll still get pushback about actually profiling men. I mean, it’s basically what many campus feminists are pushing, and there’s pushback there, including from yourself!

            Now as to the second point. You’re not doing me a favor by going down to 5 to 1, because your examples actually involve the ratio running the other way, with more innocents and less guilty people (and for the third time I’ll ask where your 19:1 came from).

            Also, I asked, apart from what you yourself think of the 10:1 line, what do you think those smart old dead white guys saw in it? Those guys weren’t fourth graders, so what were they seeing, you think?

          • j_m_h

            I don’t see that conclusion. You already had the victims — the criminals are only criminals once the crime is committed. You already have the ride side and that should not be balanced against the left side because convicting the innocent man does nothing to change the past.
            The balancing is between punishing an innocent person and the probability that person is not innocent plus the probability that person will then commit another crime (or we could get weird and simply say anyone before the court has the probability to commit a crime so even if innocent of the current charges we might be preventing some future crime so we can play with your equation here).

        • j r

          Now imagine Test A is the best known method of screening for Plague X, although even when applied with clinical discretion to the high-risk sub-group, it still produces 19 false positives for every true 1…

          And what if, say, it turns out that the typical side effect of a false positive for Test A is: mild physical discomfort, with sharp but brief emotional distress, and virtually no risk of permanent harm for those who follow test instructions?

          This is a pretty good example of Robin Hanson’s near and far categories. The injustices foisted upon me and people like me are acute, concrete, and a very big deal. The injustices done to other groups are minor, abstract, and generally unimportant.

          • Sean II

            Wrong. I stand almost no chance of getting handled by a cop or killed by a criminal. And neither do you. Both threats are “far” to people like us.

            And both are “near” to young black men. That’s who gets stopped, that’s who gets searched, and that’s who gets killed by violent crime.

          • j r

            You are misunderstanding the analogy.

            Here is a hint: tell me how you feel about affirmative action.

          • Sean II

            How I feel about affirmative action? I feel…there is nothing about it that could salvage your invoking of the “near and far” concept in this discussion, where it remains irrelevant.

    • Andrew

      If the justification is protecting the public (by ensuring everyone is insured), I would think we should prefer 3.

  • Chris Thomas

    The last “situation” is the worst, but the cop in scenario one is individually blameworthy in a way the 2 and 3 cops are not, thought they are all blame worthy in other ways.

    • Andrew

      I think I agree.

  • j r

    Pardon me for being a spoil sport, but what do we gain by trying to rank these things? Racial profiling is a distinctly different thing than the other two. If police, acting within the norms and procedures that sufficiently respect individuals’ civil and procedural rights, find it useful to pay more attention to certain individuals based on a composite of traits (even if one of those is ethnicity) and that leads to better outcomes, with minimal rights impact, then go for it. But that’s not what racial profiling is, at least not the racial profiling to which people object. Racial profiling is pulling over every black male in a late model sedan driving on I-95 or stopping and frisking every young black male in Brooklyn wearing baggie pants. When agents of the state pick out certain individuals, based solely on their sex and ethnicity, for additional scrutiny, that is a pretty clear rights violation.

    I am probably least bothered by #3 as it involves routine enforcement of the law and seems like it would waste minimal taxpayer resources. I certainly don’t think that paying some police officer to sit in a car and enter license plates into a computer is a worthwhile endeavor. Further, I’m not sure why we need active enforcement of insurance laws. Seems like something that can be dealt with at traffic stops for moving violations or can be punished after the fact in cases involving accidents.

    ps – Since when are cars insured? Aren’t drivers insured, not their cars?

    • martinbrock

      Typically, your auto insurance policy covers anyone driving your car.

    • Andrew

      Good points. I’ve been puzzling about this and am leaning toward 3 as well, though I still think its extremely bad.

  • Sean II

    This blog is great and all…but when people here endeavor to discuss matters of crime or criminal justice, hilarity ensues.

    It’s like a bunch of fourth grade boys awkwardly faking their way through a conversation about sex. None of them know what they’re talking about, but they’ve each picked up a term or two from somewhere, and they deploy these stolen words with great blustering self-confidence. Together they share an unspoken agreement: “You don’t notice the flaws in my bullshit, I won’t notice the flaws in yours.”

    • Charles F

      I really want to know about the flaws in my bullshit. I would appreciate it if you could point them out.

      • Sean II

        Sure, but first a bit of diagnostic.

        What to you seemed the funniest part of the original post? If your answer is “I didn’t find anything funny”, well then…

        • Charles F

          I don’t know if I would say funny, but it’s comparing three very different things. Obviously being immune to scrutiny because of your skin color is a bad thing, constant monitoring can be used in bad ways to reduce freedom, and distracted driving is unsafe, but it’s not as if they’re really mutually limiting concerns that we have to balance.

          • Sean II

            Since it’d take way too long to fill in all the necessary background, let me try a shortcut through analogy-ville.

            Imagine someone who was lucky enough to have never been in a hospital, nor to have needed a doctor, nor to have known anyone who did. Indeed, imagine this person’s only knowledge about medicine came from two sources: Michael Moore’s Sicko and the soap opera Grey’s Anatomy.

            Now imagine what happen if that man tried to construct a thought experiment based on a clash of values in health care.

            He’d get it wrong, in any number of distracting ways. There’d be a lot of “I see what you’re getting at dude, but that is totally NOT how defibrillators work…”

            This post is like that.

          • Charles F

            Care to elaborate? Feel free to fill in just a little bit of the necessary background. Or recommend a book which will cover it. It does seem to be accurate that police can run a license plate to see if you’re insured and are allowed to stop you if you’re not. ( It’s true that during a traffic stop, police can search your car with probable cause instead of a warrant ( and even look in the passenger areas without probable cause. The felony/misdemeanor assessments for the drugs are right in at least one state ( and same with the possession of a firearm during the commission of a felony bit ( as long as law enforcement can can convince somebody they intended to sell the drugs.

            So the scenarios seem to be factually fine. There are some missing details that might make it harder to answer. Like does the racial profiling strategy actually help them make more arrests for important things, or is the officer typing numbers at a stoplight or while speeding down the interstate. But I don’t see anything that makes it unreasonably hard to talk about any of the values in question.

            Also, in the analogy, I would expect the factual inaccuracies to be extremely minor compared to the high probability that they’d focus on some conflict of values that’s really glamorous and so gets a lot of attention on TV but isn’t nearly as important or common as a bunch of other more mundane things. Like focusing on how to quarantine ebola rather than how to get people to actually take their medications or something. (Can you tell I haven’t actually dealt with hospitals IRL or on TV?) Is something like that going on here? If so, what’s a massively more important criminal justice issue that we should focus on instead?

          • Sean II

            Short on time now, but I’ll respond by updating this comment later.

          • Charles F

            Way to ruin a nice, clean scenario with facts. Thanks for the explanation.

          • Sean II

            No, thanks for asking and sorry it took so long for me to get back.

          • Andrew

            Hate to tell you, but (a) racial profiling sometimes does happen as described, (b) this was all based on an actual case–so yeah, it happens (in particular the the way I described what you are concerned about in your 2 and 3 is from that actual case).

          • Sean II

            So what? It’s easy enough to dig up hard cases or weird cases, if you’re looking for an angle to play. My interest is in (and my comment is about) what’s typical, common, representative, etc.

            But go ahead and identify the case. Give me a fair chance to look up any relevant details you may have accidentally left out.

          • Andrew

            Cool. You went from “when people here endeavor to discuss matters of crime or criminal justice, hilarity ensues… like a bunch of fourth grade boys awkwardly faking their way through a conversation about sex. None of them know what they’re talking about,” and talking about how I engaged “in crafting such a phony cartoon scenario” etc to “It’s easy enough to dig up hard cases or weird cases, if you’re looking for an angle to play. My interest is in (and my comment is about) what’s typical, common, representative, etc.” Pretty big difference in my view. That said, I’m sorry to say I can’t give you the name of the case for a variety of reasons I won’t go into here.

          • Sean II

            So you swear your hole card is an ace, but you can’t show it to me, nor indeed can you explain why not?

            Clearly, only a very rude person would refuse to take your word for that.

          • Andrew

            (A) You will believe what you want, but no, I did not make it up. Real case. And the basics of the case are not uncommon where I live.
            (B) Sorry, but I have all of the details the relevant legal authorities considered important. I can’t swear, of course, that there aren’t details they left out.
            (C) Not a poorly sourced anecdote (see B). And while my priors clearly affected my response to the case and the fact that I thought it interesting enough to write up, I don’t think they affected how I presented the case.

          • Sean II

            “And the basics of the case are not uncommon where I live.”

            Okay then, just tell me where that is. Give me the county and state. Give me a chance to maybe find some statistics from there, so I can see how common it is for 1) a cop to admit racial profiling as the sole reason for running a plate, which is key to your story, and 2) how common it is for simultaneous original possession of felony quantity cocaine and a legal firearm to be used in a felon-with-a-gun prosecution, in someone not previously convicted, and in a case with no other complicating factors.

            That’s reasonable and fair, for both of us. Because if you’re being straight with me (and more importantly, everyone else), if you’re not holding back anything significant, and if incidents like this really are common, then I would stand no chance of identifying the particular case simply by knowing the county where it took place. It’d be a case of “find the needle in a stack of needles”.

            Just the state and county. That’s all I ask.

          • Andrew

            1. Why do you think a cop admitting to racial profiling as the sole reason for running a plate is key to my story? I didn’t say the cop admitted it.
            2. There are two different sorts of charges you seem to be confusing. An individual can’t be charged with carrying a firearm because they have a felony conviction if they do not have a felony conviction. If you thought that is what I was saying, its no wonder you thought it was dumb. The individual was charged with possession of a firearm while committing a felony. If the cocaine charge failed, so would the firearm charge.
            3. The sort of case is not rare, but I don’t think I understand your point. Say it were rare, why would I need to seek a “better” case (and “better” in what way?). The post is a question. The case helped bring out that question. Perhaps you don’t like the question, but as you said, “So what?”
            4. You have to realize by now that because of the tone of your comments, I do not care if you think I am being straight with you. I am, but I am not concerned to prove that to you.

          • Sean II

            So, to sum up: you won’t name the county, you don’t care if your scenario is representative of reality, but you swear it is, and yet you won’t make the tiny effort required to prove it because I didn’t ask nicely enough?

            Andrew, I can’t say this any more gently: please imagine how that looks to a neutral third party.

            Two guys are going back and forth, and one of them keeps insisting he’s got a trump card in his pocket. Will he show it? No. Why not? Because he doesn’t like the other guy’s tone.

            How many people, seeing that, would say “Yep, seems fair. Claiming a set of winning cards without showing them, that’s not rude. Asking to see those cards in less than the most polite way, that totally is”?

          • Andrew

            I did not say I wouldn’t give you the detail because you didn’t “ask nicely.” I said I couldn’t give the detail “for a variety of reasons I won’t go into here.” I’m also not sure what you mean by “winning” here. You seem to imagine yourself in some competition to show me up–and that I care. I don’t. But I would suggest that you also consider how your comments look to a neutral third party.

          • Sean II

            No, the object of the game is: better understand the world.

            It has nothing to do with showing anyone up.

            But at the same time, “letting the other guy save face” is not a good reason for neglecting important questions.

            And in this case there are several important questions. Like: “How common is that, really?”

            And: “Are you quite sure the cop didn’t have some additional motive for that stop, something beyond ‘Saw race of driver, ran his plates’?” Because if he did have something more that means his search heuristic is rather more refined and more reliable than you at first made it seem, and that in turn causes his action to compare more favorably with the other two scenarios.

            And: “Mightn’t there be some reason why, in this case, the prosecutor choose a route that made his life more difficult than it otherwise needed to be?”

            Those are interesting questions. Answering them, that’s what this is about for me.

          • Andrew

            1. “How common is what, really?”
            2. When you ask “Are you quite sure the cop didn’t have some additional motive for that stop?,” what are you asking about? Maybe it would help for me to point out that I did not say that all 3 scenarios were real and I did not say which was the actual case. To be clear, I took the actual case (one of the 3, with very slight modifications) and then made 2 additional scenarios modeled on it.
            3. Are you suggesting “the prosecutor choose a route that made his [or her] OWN life more difficult than it otherwise needed to be?” I suppose this is possible, but given the actual case, I can’t see why he [or she] would.

          • Sean II

            Before I say anything else, let me thank you for continuing the dialogue here. I appreciate that. And since I obviously do have a sarcastic streak, let me say I’m sorry if I let that go too far here today. My answers:

            1) Purely raced-based actions – stop, search, arrest, etc., with no further refinement of pattern-recognition. How common are those?

            2) Okay, bear with me for a second. Cocaine use has a very low prevalence these days. We’re talking like 2% annual. Since this stop and search actually found cocaine, I think it’s prudent to ask: “Hmmm…was there maybe something more than dumb luck involved? Maybe something that made the cop key on in that car, and then not-so-coincidentally find an increasingly rare form of contraband.”

            Relevance: same as 1) If it turns out that the thing we think of as “racial profiling” is really more like “suspicion enriched by hard-to-translate forms of local knowledge and context”, that means we should judge it differently.

            Recalling that your original question was “Which is worse?”. I’m merely saying: we should first find out how bad Scenario 1 really is, before we compare to 2 and 3.

            3) Well, as I said. The path to prosecution for previously convicted felons-with-a-gun is easy. Plenty of case law, and in fact the local AUSA is always eager to help in such cases. People thus charged often end up with big league federal time. The path for “this guy is an armed felon because of [yet unproven coke charge]”, that’s much harder.

            And since 98% of everything goes to plea, the usual outcome would be: you plead guilty to the coke and for future reference become a previously convicted felon (so that next time…), meanwhile we’ll drop the gun thing and send your pistol to the property room never to be seen again.

            Now…I can see some reasons why one might go the hard route. If the guy was suing the city, for example, the prosecutor might keep everything on the table for leverage in an effort to get the suit dropped. Or if he resisted arrest. Or maybe if he was a locally known player on the scene who’d beaten previous prosecutions. These are the kind of things that inspire vindictive prosecution, and as originally written, the scenario has a whiff of that.

          • Andrew

            You’re welcome and apology accepted.
            1. With no further refinement of pattern recognition, I hope/assume its not very common. I couldn’t say for sure.
            2. Answering this is difficult since, I was actually trying to figure out the most generous reading of the officer’s, prosecutor’s, and state’s situation in the actual case. It was not clear to me, for example, whether the officer was acting in a way in which I would think he was personally blameworthy. It still is not. Clearly, the officer may have withheld some information (intentionally or unintentionally) and I may have misunderstood something. Of course, the officer had/has a great deal of local knowledge I do not. In any case, it was the very fact that I was unsure what was going on (was the best reading of the situation some form of problematic racial profiling?), that spurred me to think of the 3 alternatives.
            3. Yes, I suspect the prosecutor was looking for a plea. But part of my view is that the guy in question did not deserve to have a felony record at all. Relatedly, the stats on correctional control are hugely problematic on my view. See

          • Sean II

            3) Of course I agree, in so far as coke possession should never be a felony in the first place. I might be okay with a gun law that restricted ownership of previously convicted violent criminals only.

            But even that’s iffy, because here’s a common scenario: Kid does crime. Kid does time. A lot of it. Eventually, old man gets released. Can’t afford to live anywhere but the roughest ‘hood around. Full of kids like he used to be, doing crimes. So old man arms himself for defense. One day old man gets tossed. Goes back to prison forever because on paper he’s felon-with-a-gun. Such things happen. (Seen The Wire? Picture someone like Cutty.)

            2) & 1) I can tell you what I’ve discovered in my long journey from “doctrinaire libertarian” to “doctrinaire libertarian who occasionally bends a knee to evidence”.

            Racial profiling of the kind people imagine is not very common at all. The disparity one sees in stops, searches, etc. is almost entirely explained by underlying differences in the criminal participation rate. Closer inspection of the practice reveals that it’s mostly just applied stereotype accuracy. When you look at actual cases, invariably it turns out the cops had much more to go on than “race of driver”. Although as I’ve noted elsewhere in this thread, any form of profiling is doomed to produce a high rate of false positives, given the base rate for violent crime.

            Turns out libertarians are more prejudiced against cops, than cops are against blacks. We have a long and shameful history of acting crime doesn’t matter, perhaps because it doesn’t…to us. Being what we are – a bunch of white boys – crime to us isa good movie plot device, a great social signaling opportunity, and little else. It doesn’t threaten our lives.

            But in the black community, crime is a major factor – directly, in the deaths it causes among young black men, but also indirectly, in the insecurity it brings to millions. Last spring when the cops abandoned Baltimore, the murder rate there doubled instantly. Shot right back up to its early 1990s peak.

            Which means: while false positives are bad, false negatives are very bad.

            So to answer your original question, the real-life version of 1) is – once you understand it in context – better than both 2) and 3).

            In the first place because 1) is not as bad as it seems, and then also because 2) and 3) stand no chance of preventing violent crime. 1) is all about using heuristics to narrow the search for crime, then using insurance (or whatever) as a pre-text for contact, and seeing what develops from there. 2) and 3) are not just indiscriminate, they’re also hopelessly unlikely to discover any crime except failure to insure.

          • Andrew

            About 3: good
            About 2&1:
            -For what its worth, I wouldn’t consider myself extremely doctrinaire
            -I’m skeptical about much of what you say about racial profiling, given the anecdotal evidence I have, but I admit I don’t know the statistics here (or even if there are any reliable data)
            -I’m sure you’ll admit there are numerous actual cases where it turned out the cops had nothing more to go on than “race of driver”. That may be a minority of cases, I don’t know. But again, I remain somewhat skeptical.
            -I’m not sure if we generally ignoring the benefit of police. Maybe some do. I grew up trusting police.
            -given where I teach (and other factors), crime is not a theoretical construct to me.
            -Re: the Baltimore situation. I haven’t followed this, but I suspect it is too soon to tell.
            -as a general matter, if police were restricted to protecting people, so only arresting people suspected of crimes with victims, I doubt anyone would have much of a problem with police.
            -Given above stated skepticism, I am skeptical of (1) being better then 2 and 3. As I’ve indicated in response to others, I lean toward thinking 3 is least worrisome–which is not to say I think it good. But I am not really settled here. Part of my problem with 1 is that I suspect it leads to more violence. Similarly, I suspect 2 leads to more damage and possibly–because it can be misconstrued as 1–more violence. Additionally 3 at least has the advantage, if that is what it is, of treating all the same.

          • Sean II

            In no particular order and without addressing all bullets:

            – Basic method with racial profiling stats is: Step 1 – compare stops/searches/arrests to census population, divide first fraction by second to get disparity number (so if blacks in Gotham are .50 of stops and .33 of population, your disparity number is .50/.33=1.5). Step 2 – compare share of crime by race to census population, divide first fraction by the second to get disparity number (say blacks in Gotham account for .53 of crime and .33 of population, your disparity number here is .53/.33=1.6) . Step 3 – compare disparity in stops to disparity in crime. (So the disparity number for stops of blacks in Gotham is 1.5, meaning they’re 1.5 times more likely to be stopped than whites, but…the disparity number for crime among blacks in Gotham is 1.6, meaning they’re 1.6 times more likely to participate in crimes there, which explains the disparity in stops and then some). Which, by the way, is pretty much the pattern you see everywhere. Big disparities for blacks in stops/searches/arrests, but correspondingly big disparities in the underlying crime rate.

            Pro tip: the easy way to spot an ideological hack on this subject is that he will ONLY perform Step 1 of the above, and then present the resulting disparity as proof of racism…on the hidden and quite ridiculous assumption that stops, searches, and arrests should somehow match the census proportions perfectly. More sophisticated hacks will key in on the contraband find rate – which is usually lower for blacks than whites – but that’s just a another misdirection, based on the grave error of assuming all contraband finds are of equal weight.

            Where to find such info if you want to check for yourself? Profiling stats are collected in many states and some cities, and FBI UCR data is very good for crime rates by different variables, including race.

            -No, not numerous. “He’s black, let’s stop him” happens very rarely. I know this seems hard to believe since we all grew up marinating in a narrative to the contrary, but that story is just not true. Remember: apart from the statistical disparity (which is explained) and the media narrative (which is made up) what evidence did this argument ever have to support it? None that I’ve seen.

            -It’s really not too soon to tell. Just google Baltimore + homicide + Freddie Grey protest. You’ll find that his death in April is the inflection point for a massive trend reversal, such that the next month, May, was the deadliest in 40 years, and such that 2015 ended up producing the city’s highest murder total ever. (Of course you’ll also find a cottage industry of people bending over backwards to not notice the obvious connection, I guess because it’s embarrassing that Black Lives Matter is indirectly responsible for the destruction of so many black lives. But that’s what happened…that’s what is still happening.)

            -Not so fast. It would help if police were restricted to pursuing real crimes, but less than you think. In America at least we’d still have the race problem to contend with. Remember: blacks are not libertarians. They don’t protest against the police because they think the state is too big. They protest against the police because cops arrest lots of blacks. That fact would not change even if we woke up tomorrow in a society where only violence was illegal. Indeed, the race disparity in such a case would only become sharper, more conspicuous…because while white kids do smoke dope, they hardly ever shoot people. Limit our prisons to violent offenders only, and they’ll be even more disproportionately black than they are today.

          • King Goat

            “but that’s just a another misdirection, based on the grave error of assuming all contraband finds are of equal weight”

            Elaborate? Do you have evidence that while they find less contraband on blacks stopped relative to whites, it’s of ‘more weight’ (and what’s meant by that, more likely to lead to convictions, evidence of more serious crimes,???)?

          • Sean II

            Of course. It’s obvious. Look at the crime rate. You’re almost never gonna find a murder weapon in a white kid’s car.

            Think about it from a public safety standpoint. A city cop could search white kids exclusively for a month and never find anything worse than a quarter ounce of weed. That = lots of contraband hits and zero weight of impact on violent crime. Does nothing to tamp down the crime rate for murder, assault, robbery, etc.

            If the same cop focuses on young black men, he’ll find a pistol a week. Many of those pistols will be illegal, and every so often one will turn out to be the weapon used in an actual or attempted murder. The number of hits is somewhat smaller, but the average weight of those hits is much, much higher.

            So guess what cops in urban areas mostly do.

          • King Goat

            Oh come on, I asked if you had some sort of source or cite, not your ‘obvious’ just so story and begging the question here.

            We have actual studies showing differential contraband. Do you have any evidence from those studies you can point to that the contraband led to different kinds of convictions or charges?

          • Sean II

            It’s obvious. Look right where I told you to.

          • King Goat

            It’s not obvious. You have no idea what the contraband in those studies was. You’re guessing.

            I’d bet that almost 100% of all the contraband is non-murder related (murder is a very relatively rare offense).

            “So guess what cops in urban areas mostly do”

            Do you really not see that with this you’re begging the question? Urban cops are being rational in their discrimination, because why wouldn’t they?

          • Sean II

            I say “every so often you find a murder/attempted murder weapon” and you retort that murder is relatively rare? Not seeing the disagreement.

            Goat, I’m gonna try something new here and just ask you nicely for a favor.

            Would you mind please stepping aside from this sub-thread? Andrew may answer or he may not. I really hope he does. But I feel sure that he is much less likely to do so if, when he gets here, the conversation is already cluttered by the kind of exchange we’ve got going now. So I’d like to end that exchange.

            I’ve enjoyed some of our recent conversations, and I think it’s fair to say we both made a certain effort to achieve that. But clearly there are limits, and it looks like we’re pushing up against them. Let’s act now to preserve the progress we’ve made.

            Can you do that for me?

          • King Goat

            I’ll do that with this caveat: you can provide no support *from* the studies you cite indicating lesser contraband finds from the stops of blacks relative to whites that the admittedly lesser finds are of ‘more weight’ than the more numerous contraband finds among whites stopped. In other words, you have no direct evidence from the studies that the contraband finds were of more serious offenses.

          • Andrew

            1. a problem with your first bullet: the “crime” rates you use in the calculations are not really rates of crime; they are rates of reported crimes–and these are “crimes” according to current law, no matter how idiotic that law might be. That said, your “pro tip” is clearly right.
            2. Sorry but this– “No, not numerous. “He’s black, let’s stop him” happens very rarely. –won’t go very far when we see well-to-do black business men and politicians stopped for things others are not stopped for. Admittedly, this is at least partly a perception problem.
            3. You say “First and far more usually, it turns out that the supposed regular guy was in fact a violent criminal (e.g. Ferguson, Charlotte). Second and less often, it turns out the guy was a petty criminal, but one who in that moment chose the extremely high risk strategy of resisting arrest (e.g. Staten Island, Baton Rogue).” The second sort of case is extremely troublesome especially when the supposed petty criminal’s only “crimes” were things that should not be illegal at all (Staten Island being the most obvious case).
            4. About your final point, perhaps the most important from my perspective: I don’t follow. It doesn’t matter if blacks are libertarians. It does matter, I would think, that under a libertarian regime, they–like the rest of us–would be subject to far less police intervention. So, for example, they can all live normal lives even if, for a few, that happens to include dealing drugs, without worry that the police will be after them. Indeed, they will know that they–like the rest of us–could call on the police for assistance when they are robbed, even if the stuff stolen was what is now contraband. They would have reason also to expect as good and as much help from police as those of us in wealthy and middle class neighborhoods get. They would thus have less needs for guns and violence. Gangs would cease being gangs and become legitimate businesses. In short, everything changes. This is likely especially true if we don’t take a “libertarianism starting now” approach, but try to right historical wrongs.

          • Sean II

            1. There is a difference between reported crime and crime, but it cuts the wrong way for you. When we’re talking about violent crime (the only kind I care about, and the kind where stats are most accurate), if there is a significant error, it tends in the direction of under-reporting black-on-black violence. A correction there would strengthen my argument.

            Remember: taking personal safety for granted is the biggest white privilege of all. White victims report at very high rates, because a) victimization is a big shocking thing when it happens to white kids, and b) they tend to trust the police more.

            It’s just not remotely plausible to think: “maybe there’s a big bunch of undetected white-on-white violence out there, that the police just ignore because they’re so damn racist”. No way. The uproar from those white victims and their families would be deafening.

            2. Have you ever noticed how it makes the national news when someone like Forest Whitaker or Henry Louis Gates gets stopped or has an otherwise unpleasant encounter with police? That’s because it doesn’t happen very often.

            If the world were anything like the narrative says, there’d be an incident like that every day. But there isn’t, because the world isn’t actually like that.

            3. Well, I’m against cigarette taxes just as much as you. But Eric Garner didn’t die of evading cigarette taxes. He died of evading arrest.

            Andrew, there are surely many taxes you don’t like. In some cases you may even risk evading them. But if you got caught, what would you do?

            4. I’m afraid you may have missed my final point, so let me restate just the key part:

            A libertarian society would see fewer people in prison overall, but the percentage of blacks in the remaining prison population would increase.

            This is a very predictable consequence of two facts: a) blacks commit more violent crime (i.e. do more of the things that would still be illegal even in Libertopia), and b) whites commit more victimless crimes (i.e do more of the things that would no longer be illegal).

            Also, I see you harbor the hope – one which I shared until a few years ago – that ending the Drug War might end inner city violence.

            I’m sorry to say that hope is totally unfounded. Violence in our cities started spiking well before the Drug War, and from 1995 to 2014 it went down dramatically despite the Drug War. Obvious conclusion: American violent crime is not in fact terribly sensitive to the variable of drug policy.

            Another way to discover this same reality: look at actual murder cases. Outside of Hollywood’s fevered imagination, most of the killings in the ‘hood are not inspired by anything so gainful as a battle for drug markets.

            What they are inspired by is a zero-sum competition for respect, reputation, Hobbesian prestige, etc. The real story is usually something like “Okay, so Jo-Jo and Lil Tay were at the roller rink. Tay dissed Jo-Jo real bad. Everybody laughing and all. Did it right in front of the girls too. So Jo-Jo, you know he never one to take shit like that, went got his pistol and started shooting. Tay ended up dead.”

            That’s the sort of thing that happened 45 times in Chicago this past weekend, with 5 murders and 40 attempts.

            White Educated Industrialized Rich and Democratic people find this sort of violence VERY hard to understand. So they like to try and impose some order on it, by projecting motives they think make more sense.

            But we’re wrong to do that. The responsible thing, as always, is to go and check empirically.

          • Andrew

            1. Yes. Perhaps not as definitive as you think, but generally speaking you are right about this. Still, we should use rates of real crimes (i.e., those with victims)
            2. Again, you are basically right, but I think you miss part of my point–the perception problem is real and rooted in real events. There should be zero such events.
            3. I do not understand your point. The Garner case seems most clear to me. The man did not run. He fought only because he was dying–because of the actions of the police officers–actions which were completely unnecessary. For too many, they have very little control of the sort that would be relevant. Perhaps they could dress in different ways–ways meant to mimic that of “safer” people, not be on the street, etc. But why should they have to? If the choice is “change your life to appear to be something you don’t want to be or face the consequences of harassment by state officials,” they aren’t in control.
            4. Here, I think you missed my final point–I do not endorse a “libertarianism starting now” approach. You look to particular points in history but forget that that history is tainted. On my view, there is very good reason for the US Govt to start paying reparations to African-Americans. That, coupled with ending the drug war (really decriminalizing anything for which there is no victim), would make a huge difference.
            You might want to get into a discussion about reparations. I won’t be able to do that now so I’ll recommend David Boonin’s excellent book *Should Race Matter” (chapters 2 and 3 especially). For a taste of David’s view, see

          • Sean II

            1. Yes, agreed.

            2. You say “there should be zero such events”. I’m sorry, that’s just not a realistic, grown-up thing to ask. Think of all the things we’d like to keep to zero but can’t: plane crashes, medical errors, kids dying of food allergies, terror attacks, etc.

            If you can be realistic about those, then you can be realistic about this too. And a realistic goal would be: let’s keep the number of Henry Gates type incidents as low as we can. In which case, good news: the number is already very low.

            3. I’m afraid you’re severely mistaken here. And I swear this isn’t any kind of personal comment, but I’m curious: what makes you think you know enough about violent encounters, controlling a combative person, etc. to say the Garner case seems clear to you? Serious question. Apart from “oh my, that looks ugly…” (which of course it does, it’s violence!) do you have any real basis for judging what you saw there?

            Put differently: how plausible is it that a university professor with (forgive me a fairly safe assumption, based on your job and education level) little or no experience with physical conflict, should stand in possession of tactics which could have safely taken Eric Garner into custody, but which somehow eluded five or six members of the NYPD?

            Let’s say you were ordered to arrest a man who outweighed you by over 100 pounds. Let’s say the man refused your every entreaty to cooperate for five minutes. Let’s say indeed that he refused with increasing anger, waving his arms around any time you got close enough for cuffing.

            What would you do? Don’t say you’d wait, because that’s not an acceptable answer. Cops in a city with 11 million people can’t afford to let every arrest become an interminable stand off, conducted at the suspect’s own pace. When they tell someone “hand behind your back” or “get on the ground” or whatever…if that man ignores them, they have to make him do it. More or less quickly. If they didn’t, a perverse incentive would be created, and no one would ever comply.

            Also…don’t say you’d run around assuming everyone you were about to arrest probably had severe underlying health problems, to be treated with extraordinary caution. That’s not realistic either. (Indeed it would be rather like asking every waitress in America to fully screen every patron for food allergies before letting them order. Just the sort of thing libertarians would scoff at, if some single-issue progressive reformist proposed drafting into law. “But lives are at stake…” they’d say. “Likes are always at stake, look at the probabilities…” we’d respond. And rightly so.”

            Same here. Look at the probabilities. Thousands, maybe tens of thousands of people get tackled like Garner did every year in the U.S. An infinitesimal fraction suffer serious injury or death. You pretty much have to come to the situation with severe pre-existing health problems…which Garner of course did.

            Bottom line: if you look at the Garner case and see “clear misconduct” you’re wrong. If you look at it and see “accident the police could reasonably have foreseen and prevented”, also wrong. The most accurate terms would be 1) “freak accident” (from the cop’s point of view, since they had no way of knowing about Garner’s health status beforehand), and 2) “terrible decision” (from Garner’s point of view, since he in fact DID know his health was too fragile for the kind of confrontation he insisted on staging).

            It never stops puzzling me, but of all the millions of activists and commenters who claim so badly to wish Eric Garner was still alive, very few are willing to name the one thing that would most surely have kept him that way: putting his hands behind his back, the first time he was asked.

            4. Two problems with reparations:

            a) In anything but the shortest of short terms, reparations wouldn’t change anything. The black social situation in the U.S. follows a robust and persistent global pattern. Everywhere you find sub-saharan populations living with other groups, you find sub-saharans living in relative poverty. This is true in North America, Europe, Brazil, Venezuela, Haiti vs. Dominica, etc. Same goes for crime statistics. The pattern we see here repeats everywhere you find a similar population mix. Ever notice that a plurality of the top 25 countries for highest rates of incarceration are Caribbean islands? Not a coincidence.

            No, sad to say, this problem will prove refractory to reparations just as it’s done to all the other policies sent out against it, for 50 years.

            b) We’ve actually already tried. From whites to blacks, there has been a net positive tax flow at least since the mid-1960s. At this point the amount of money moved is quite substantial. Not just in terms of straightforward benefit programs, but just as importantly in terms of government employment. The black middle class as we know it is mostly a creation of the public sector.

            You may notice two things this W=>B transfer of money has not done: a) it has not turned into capital for fueling self-sustaining growth in the black community – i.e. if those government jobs went away tomorrow, there’d be nowhere to go for those workers, and b) it hasn’t accomplished much in terms of building harmony between the races.

            So unless by “reparations” you mean “more government jobs, in perpetuity”…the end result will be neutral to negative.

          • Andrew

            2. Agreed.
            3. I’m not buying it. I get the assumptions you make about me, but they are at least partly mistaken. Leaving that aside, there was no reason the officers involved should have tried to arrest Garner in the first place. Even given the violation of the idiotic law, they could have turned a blind eye. This happens fairly regularly. Good cops know when to walk away from a situation that needs to escalation.
            4. (a) I can’t claim enough knowledge to argue about the other cases you mention. The policies we have tried in the US have all been wrong-headed from the start. In any case, read the Boonin. (b) Same thing: how the transfer is made matters. It should not be a thought of as a matter of redistributive justice, for example. But also how the money is actually moved matters. I would favor cash payment in a large one-time payout coupled with mechanisms for communities to pool the resources should they wish. (c) In short, nothing you say here actually touches an actual program of reparations.

          • Sean II

            3. Totally unrealistic view of local politics and policing. Cops do not remotely have the option of ignoring guys like Eric Garner. If you fail to deal with him, constituents exert political pressure until you do. Shop keepers don’t like having loosie peddlers standing in front of their stores, scaring away all the full price paying hipsters (and those hipsters are not scared because of idle racist paranoia either; Garner, for example, had 25 priors including assault).

            I’m sorry to say this bluntly, but your comments on this sub topic consistently reveal a shallow base of knowledge about it. You show little sign of having ever considered this from the cop’s point of view, with an informed grasp of their constraint environment.

            4. That sounds like: “Okay, transfer of money didn’t work when we called it welfare. But it will work if we call it by another name…and do it for a different reason.” Very unlikely.

            Actually a lump sum would almost certainly be worse. Ever seen the Chappelle sketch on reparations? Very perceptive take on what happens when you take a population with low financial literacy and pump it full of cash.

            And if that doesn’t convince you, look what happens to lottery winners from the lower-middle and lower class. Their long-term outcomes are totally depressing. They spend like crazy, fall for scams left and right, save little, incest even less, and their children end up living more or less as they did.

            No, the most likely scenario is: reparations would fail, and in a year or two everyone will be saying the problem is we got the amount wrong. The second infusion will fail, and the third after that.

          • Andrew

            I’m about done but:
            3: “I’m sorry to say this bluntly, but your comments on this sub topic consistently reveal a shallow”ness in general. You seem unwilling to think outside the box of the current situation. That, unsurprisingly, is a way to keep everyone inside the box. There are alternatives. You might consider looking at Elinor Ostrom’s work on policing. You might also consider looking into the rise of de-escalation training in police forces.
            4. I already indicated I wouldn’t engage now on reparations and I won’t. I assume you were not intentionally misreading what I wrote, as if I indicated merely changing a name would make all of the difference. But it comes close to sounding that way. Your inability to think of pooling resources as anything other than what would lead to a tragedy of the commons is a remarkable example narrow thinking. Businesses pool resources. Corporations are the clearest example of pooling resources I can imagine.

          • Sean II

            Looks like we’ve reached an impasse, so let me just express my thanks to you for a good conversation that covered a lot of interesting ground.

          • Sean II

            Also, in re: Boonin. Turns out I own that book, though I’ve never read it.

            However a quick scan reveals: it’s all just moral arguments. He’s answering the sort of objections people make when they say “Well I never owned any slaves…”

            Not what I’m concerned about at all.

            To me the prime question is: would reparations lead to a long term improvement in the life of actual black people?

            Boomin seems not to address that question at all.

          • Andrew

            Glad you did a quick scan. Here again your comments reveal a shallowness. In any case, I work in moral arguments. They may be informed by what goes on in the real world, but they are moral arguments. Boonin doesn’t spend a lot of time on the ways things can improve reparations, you’re right. But he gives some hints. And a little moral imagination might help as well.

  • Chi_R

    If in #3 the license plate information is immediately discarded and is not stored along with location data. Then I’d agree with that one being the best.

    Otherwise, it’s almost a wash, and all have issues that make them all equally dangerous, though in different ways.

  • stevenjohnson2

    The worst one is the case where 1)a single report of a smell is presumed to constitute probable cause and 2) possession of cocaine is a felony and 3) felony charges for legal possession of a firearm are levied for a felony that didn’t involve use of said firearm in any manner whatsoever.

    The best case from libertarian (excepting the anarchocapitalists) standpoint would seem to be the citations from an automated system that detects uninsured vehicles. This is the fairest, because a single person cannot successfully check anything randomly. Since the people who don’t get insurance for their vehicles are pretty much all losers who can’t afford it, the fines are punishing them for their fecklessness and, albeit in a small way, their presumption in daring to live. Yet the successful are left untouched by a perfectly equal system, since they too must purchase insurance. And best of all, the auto insurance itself is a market good, not a government subsidy.

    • Adam Bowers

      “Since the people who don’t get insurance for their vehicles are pretty much people who can’t afford it”

      FTFY. You can make your argument without the ad hominem.

      • stevenjohnson2

        No, history attests that people who can’t afford to pay their bills in a capitalist society are despised. But sure, you can leave out the fun parts of charging people for not having an insured vehicle.. I’m not quite sure how there’s a fallacious dismissal of any argument because people who can’t afford to pay their bills are bad people, therefore their argument is wrong.

        • Adam Bowers


          • stevenjohnson2

            The ad hominem fallacy is dismissing an argument because the person making it is a bad person.

          • Adam Bowers

            Still not following you, but that’s on me. In any case, I wasn’t trying to dismiss your argument. Just didn’t understand the need for call people losers.

    • Andrew

      Agree with your first paragraph completely. Somewhat inclined toward with your basic view in the second.

  • Charles F

    Scenario two is bad, and usually the worst of the three.

    Scenario one is questionable, but if the alternative is scenario two and the creator of the profiling policy was careful with their analysis, I think it’s acceptable.

    Scenario three is good in a world where laws make sense, and terrible in a world where your license plate gets put on a list when you criticize Obama on twitter. I think our world has good enough laws that scenario three is the best, though I would prefer it if the drugs weren’t a crime and the scenario included some sort of sobriety test.

  • King Goat

    One, it’s a central tenet of liberalism for the government to judge people as individuals, and not on immutable characteristics. It’s enshrined in the Constitution.

    • Sean II

      Among other amusing things, that would mean car insurance itself was unconstitutional.

      • King Goat

        You need to google ‘state action doctrine.’

        • Sean II

          That doesn’t help you. For one thing, the state mandates and enforces the buying of car insurance. So if there was a ban on statistical discrimination in the constitution (there isn’t), it should surely apply to things the state by its action makes you do.

          But on to the wider and more important point: the state controls about half of our economy. More than half when you count the full impact of regulations. A ban on statistical discrimination among all state or state-controlled actors would go a long way paralyzing our whole economy.

          Why? Because individual judgement is very expensive. Statistical discrimination saves lots of money and time. That’s why institutions do it.

          • King Goat

            Sean II, a central tenet of liberalism reflected in our Constitution is that the government can’t and shouldn’t be doing certain things that private entities can. Government can’t and shouldn’t restrict your speech, but private entities, from your mom to your boss, restrict speech on their property and in their products (think twitter or facebook) all the time.

            The mandating thing can be tricky with the state action line, but there’s lots of examples. Government can, as a condition of things like certain benefits or probation/parole, mandate that you find and get a job, but obviously private entities can discriminate on certain characteristics (lots of characteristics, even immutable ones, are not protected by employment discrimination law). Likewise, they can make you get insurance in a market that might engage in (some, insurance companies can’t discriminate based on race, for example) ‘statistical discrimination’ and still not run afoul of the 14th Amendment.

          • Sean II

            “Sean II, a central tenet of liberalism reflected in our Constitution is that the government can’t and shouldn’t be doing certain things that private entities can.”

            My response here is simple:

            That distinction made gobs of sense when government = ~3% of human endeavor.

            Now that the state controls half or more of everything we do, that distinction is a pile of meaningless bullshit.

          • Charles F

            I think that requires some explanation. I’m having trouble wrapping my head around the idea that individual protections from government get *less* important when the government grows into a massive web of interconnecting branches that control large portions of our lives.

            Or is it that you think that the non-government entities should be restricted the same way the government is?

            Or that there’s some other distinction besides public/private that we should use to determine who’s restricted?

          • Sean II

            The third one.

            Quasi and semi public entities probably shouldn’t be able to say “1st Amendment doesn’t apply to me”, etc. They shouldn’t be able to enjoy the benefits of massive public funding AND simultaneously the full rights designed for private individuals and institutions.

          • King Goat

            “try accused criminals in kangaroo courts”

            Dude, they’re just gender profiling, I thought you were down with that ;).

            More seriously, while I take your point about these supposedly private institutions feeding at the public trough, where’s the line for you? For example, companies that do business with the government, say defense contractors, should they be treated as public institutions under the law?

          • Sean II

            1) I know you were kidding about that first point, but forgive me if for the benefit of anyone else reading I answer in earnest:

            I am 100% okay if 100% of the people suspected, accused, and tired in campus rape trials are men. That is as it should be. I just want those trials to have something to do evidence, getting at the truth, etc. You know, instead of what schools do now, which is use them as live-subject experiments in fourth wave feminist theory.

            2) Don’t really know. Maybe there isn’t a line. Might have to be a case by case test. Yale clearly isn’t private anymore. Most colleges aren’t. But drop down to the high school and elementary levels, and you find schools that are so private, the state actively works against them.

          • King Goat

            “I just want those trials to have something to do evidence, getting at the truth”

            Hmm, I guess your commitment to consequentialism does have some limits. But it seems a bit selective. Above you seemed fine ensnaring 19 innocent black men to get that one superpredator off the streets, so what’s so wrong with getting a bunch of innocent guys kicked off campus if we can get a rapist out of there too?

          • Sean II

            Wrong, I want those trials to be evidence based BECAUSE of consequentialism.

            Thing you’re missing is that there’s a big difference between a false positive in a campus rape trial, and a false positive in stop-and-frisk.

            In one case, a false positive means you get kicked out of school and spend the rest of your life awkwardly explaining that “rape” at Reed just means “any sex where the female partner drank alcohol”. I’m sure a lot of job interviewers will listen patiently through that one.

            In the other case, a false positive means experiencing on the streets of New York what everyone else experiences at the airport, but with coarser language. “Okay kid, you know the drill. Hands on the wall, feet apart…”

            Other thing you’re missing: rapists on campus are a lot less common than violent men in the hood.

            So on campus you have a big concentrated harm (show trials!) that is being borne to solve a rather small problem.

            And on the streets of NYC, you have a small harm (frisking) that is being borne to solve a rather large problem – i.e. the leading cause of death among young black men, violent crime.

            Nothing remotely inconsistent about saying “the one is worth putting up with, the other is not”.

          • King Goat

            Getting pulled over and searched when you’re innocent is much more serious than you make it out to be (there’s a singling out and targeted nature that doesn’t go on at the airport, dismissing the ‘coarseness’ of it is like dismissing the coarseness of being assaulted on the streets vs being tossed around in wrestling during PE, and, since cops don’t like to waste their time and a cop can put some citation on anyone if they like, your chance of getting more than a stop is high) and getting kicked out of a particular college is much less serious than you’re making it out to be (go to another school, or none, and just don’t report it to your future employers, it doesn’t show up in a criminal background check).

            How common sexual assault is on campus seems to be a hotly debated question, are you sure it’s a rarer problem than killers in the hood?

            Also, let’s drop silly stats like ‘leading cause of death of young black men.’ Of course unnatural causes are going to be relatively high for young people.

          • Sean II

            No. Getting pulled is almost never a big deal, unless one does something very stupid like run, fight, threaten, stage a big scene, etc.

            If any man, black or white, sets himself the goal of getting safely through the encounter, he can do so with massive probability of success. For everyone except those determined to make it worse for themselves, being curbed on a traffic stop is LESS dangerous than driving on the road.

            Also, coarse language is just coarse language. It doesn’t matter how melodramatically you describe it. Have you ever seen the way kids in the ‘hood talk to each other? The exchange of insults is relentless, and creative. No way you can sell the idea that those kids suffer a meaningful harm when some pudgy old cop calls them “punk” or “dirtbag”. They hear worse every day…and often they hear it from local tough guys who actually do pose a real threat to their safety.
            And no, there isn’t much debate about sexual assault on campus, except for that flogged by evidence-proof fanatics. On a strict definition of rape the real numbers are very low. Not surprisingly, because you’d expect as much from a community that pre-screened out the bottom 2/3 of humanity. College populations are formed from smart kids who managed to follow the mind-numbing rules of K-12 education well enough to prosper there. Their propensity to offend is: very low. Which is why hardly anyone ever seeks the service of those campus rape crisis centers.

            Now…if you want to expand the definition, and start talking about dubious consent, that’s another matter. Obviously you could get an increase that way. BUT…the rates on campus would still be lower than elsewhere, and anyone serious about rape prevention would be wise to focus their efforts almost anywhere else. Like, for instance, by following up to see what goes in the lives of all those girls who didn’t go to college. Because guess what? They spend their weekends drinking even more than the college kids, and they do it around a much more violent group of men.

          • King Goat

            “Getting pulled is almost never a big deal,”

            Getting pulled over is literally an assault. If anyone else physically interjected themselves arresting your movement with the threat of force if you don’t comply, that’s what we’d call it.

            Then what happens is coarse language and treatment from someone visibly armed and authorized to legally kill you, and if they do they’re going to get the benefit of the doubt. Even if the meme about blacks getting killed by cops is wrong it’s going to be very much in your mind when an officer with his hand on his firearm pulls you over and starts cursing you while ordering you about, it’s going to be terrifying. And this doesn’t even count the embarrassment, stigma and the hassle of having your plans disrupted that go along with this.

            And it doesn’t stop there: we know blacks pulled are then more likely to get searched. This involves everything I’ve mentioned above, but in an elevated fashion. It’s not remotely comparable to the context of hanging out with your friends playing the dozens. It’s like when Limbaugh dismissed Abu Grahib by comparing it to rough fraternity hazing.

            I also think your dismissal of sexual assault on campus is too curt. There’s some well publicized studies with methodological issues, and then silly activists take those and make them worse in the telling (most commonly by conflating what we’d call rape and sexual assault as the former). And there are studies suggesting lower rates. But there are also quite a few pretty good studies suggesting high numbers.

            And why wouldn’t there be? Sure, there’s the screening that goes on you mention. But there’s also a concentration of the most high impulse age groups into a quasi-responsible environment with lots of free time, with even further sub concentrations of young men into groups like fraternities and athletic teams. We know what usually happens when you get that (the first modern police force was created to deal with the pathological place London became when it was flooded with rural young men looking for work during the Industrial Revolution). You’d have to be suddenly turning off your sociobiological mindset to not suppose this would be a hot bed of impulsive acts, one of which would be sexual assault.

          • Sean II

            “Getting pulled over is literally an assault….”

            Write an opener like that, I’m not reading the rest.

          • King Goat

            We privilege police, but that’s what it is. What else would you call someone arresting your movement via threat of force?

          • King Goat

            Eh, it’s a fine line in practice and law, but an existing, and especially in law, an important one nonetheless. My point that there’s gobs of constitutional problems with the cops racially profiling but pretty much none for insurance companies charging young men more(or hell, even blacks, as a constitutional matter-that would violate statutes but not the 14th Amendment). You might not like it or think it makes sense, but you’ll have to take it up with those dead white guys who wrote it.

          • Sean II

            Well, I really don’t care what the notoriously arbitrary Supreme Court (now less credible than ever!) thinks of what those dead white guys meant when they wrote the constitution. (Note: somewhere on this blog a few years back, Jason Brennan had a good short post on the intellectual sham that is constitutional scholarship. Might be worth a look up. He was right on the money there.)

            In fact this is a good example: “My point that there’s gobs of constitutional problems with the cops racially profiling but pretty much none for insurance companies charging young men more…”

            Not at all. The “equal protection” argument makes as much sense in one case as in the other, especially when you look at how the 14th Amendment has been used since 1964. The thing that mandates car insurance is a law, and yet it protects different people at unequal costs, based on category discrimination.

            The only reason why that’s not thought wrong is because no one in politics gives a shit about consistency, and because there is no organized group which cares to push that angle hard enough to overpower the very well organized insurance industry.

          • King Goat

            You might should’ve stuck with the study of it though, since as you like to tell to tell people about criminology there’s quite a bit more to it than what you’ve described here.

          • Sean II

            No, the 9th Amendment does no work here…if it’s selectively invoked and ignored by ideologues who use motivated reasoning.

            Which is exactly what happens, and which is exactly my point.

            You’d have to argue that the Constitution contained an extensive right of contract in 1905 (when markets were more popular), which it magically stopped containing in 1937 (in the heyday of central planning), even though the thing that changed from one point to another was political sentiment…not the text of the law, and not any true advance in the theory of its interpretation.

            And later, you’d have to argue that the same Constitution magically started containing a right to abortion – something ~100% of everyone alive at its framing would have opposed – in the early 1970s (which we swear on our honor as lawyers has nothing to do with the sexual revolution that just happened to be going on then, but is really just a case of dispassionate jurists doing sound jurisprudence).

            Again, I recommend Brennan’s post on the subject. He said something like: “it’s painfully obvious that what everyone in con law does is try and discard different legal arguments on different issues, until they end up with a policy mix that they prefer for political rather than legal reasons”. And he was right.

          • King Goat

            My point is, that there are unenumerated rights the Constitution recognizes is itself expressly recognized in the text. The Founders basically wrote into it ‘there’s other shit in here too if you need it’ and then didn’t tell us what that shit was.

            That’s not a specific defense of any claim of what that shit entails, but waving every example away is facile. There’s *some things* definitely in there not written down.

            And color me unimpressed by the ‘and no one thought it was there until magically in 1905’ arguments. You might want to read Jack Balkin’s work on original expected applications and original understandings regarding that.

          • Sean II

            “…equal protection of the law has never meant to apply to any disparate treatment or outcome.”

            Well sure it does, especially in light of legislation subsequently tacked on.

            How do you think parties try to prove unequal protection? They do it by showing evidence of disparate outcomes.

          • King Goat

            Sean, you’re demonstrating here that, likely in disgust, you stopped your law studies. Disparate impact is mainly known in enforcing statutory anti-discrimination law, not the 14th Amendment. Confusing these two things is a common mistake, but an eye rollingly basic one to people familiar with both. Secondly, disparate impact is one of several ways to try to win a case in those areas.

            But my main point seems to be one you’ve missed, the 14th and anti discrimination laws have always been about a handful of ‘protected classes’ and characteristics. You’ll find no action there for discrimination against red heads, or ugly people, or bearded people, or Trekkies. The classes protected are delineated ones, usually ones where we’ve had a history of deplorable treatment based on those classes.

          • Sean II

            I’m well aware of the bullshit we’re supposed to believe about the law. You stand no chance of teaching me anything new on that account.

            What you’re not getting – although I’ve said it like four times now – is that I don’t care about those lies.

            I don’t buy the alleged distinction between legislation from congress and legislation from the bench, or for that matter legislation from the executive branch.

            It’s all just shit the state claims a right to do. If you think there’s anything more to it than that, think harder.

          • King Goat

            See, it’s these kind of comments. ‘Legislation from the bench=legislation from the legislature” is a common enough refrain from those who get their need from conservative sources, but wtf is it supposed to mean here? Seriously, from the insurance comment on down your comments put you in the same position as those who can’t answer your ‘screening’ questions re genetics or crime statistics.

            You made a comment about insurance that is the kind laypersons ignorant of our legal system and doctrine often make. No harm no foul, you’ve never represented yourself as a legal expert. But then you compound it with several of the same kind of statements (confusing 14th Amendment and statutory anti discrimination law, how disparate impact works, confusing what that Amendment and those laws protect and what they don’t, all in ways that are, again, common though eye rollingly bad statements on these topics by right leaning laypersons). You’re doing the equivalent of what left leaning laypersons do when they say something like ‘my employer can’t drug test me because 4th Amendment!!!’ Then when you tell them the 4th doesn’t apply to private employers they try to save face by saying ‘well, yeah, but that’s a bullshit distinction that shouldn’t be!’

            I think the problem is that as a ‘racial realist’ you think it makes much sense to engage in statistical discrimination in things like policing. After all, as your clever analogy goes, insurance companies do it for some categories. But people that know the law know insurance companies and government agents are not allowed to do the same things. More importantly, if you knew the law you’d know people who knew it would know that and it’d be an obvious response to your suggestions re police profiling. They’re going to because regardless of whether that makes sense that is what the law is and has been. For you to toss the insurance example out there without acknowledging that the law currently wouldn’t permit that in policing is like someone saying ‘why don’t we make a law requiring me to leave my gun locked in my car, my employer makes me do just that when I’m at work!’

  • Ron H.

    In many states none of these scenarios apply as driving without insurance is a secondary offense. You can’t be stopped for that offense initially, but can be charged with it after being stopped for some other reason, which the cop may have to invent.

  • dfjdejulio

    For me, 3 is clearly the best because it has the most potential for transparency. Before the actual stop, you don’t have to wonder if human judgment played a part, and you can inspect all the decisions. Number 3 is the situation where the rules on the books are most likely to match the real-world implementation of those rules.

  • SimpleMachine88

    Scenario 3 is by far preferable. There are no 14th Amendment issues at all, and you call it “big brother”, but at no point did the officer in any way violate the 4th Amendment. And it catches more criminals.

    By the way I don’t think you even need to smell marijuana to find the weapon, assuming it’s on the suspect, or in the passenger compartment, something within reach of suspect such that it might present a danger to the officer. Reasonable suspicion is a very low standard.

    Scenario 1 is almost certainly constitutional in actuality. Usually a cop will at least testify about other reasons than simply race for pulling a car over, probably rightly. The car is on a known drug trafficking corridor, etc- “the totality of the circumstances”. Anyway, the cop didn’t perform any stop until AFTER he knew the occupant was violating the law.

    If you can find evidence that the police officer was engaging in purposeful policy of racial harassment, then we have an issue. That doesn’t mean as a matter of public policy, we shouldn’t question who are officers are choosing to check, through the political rather than the legal process.

    What I’d mention is that firearms charges can be ABSURDLY harsh. I’m assuming the scenario is assuming the persons trafficking cocaine, which is what the law is supposed to be targeting. But if this guy just has a small quantity of cocaine for personal use, he’s still going to jail for forever because of the firearm, even if there’s no way that the firearm is any way related to the crime. Also, marijuana should be legal.

  • John Tyler

    Did this man contract to carry drugs with the owner of the highway?

  • AdviceKrugman

    I’d say, in decreasing order of terrible-ness, 2, 1, and 3–although 1 is very close to 2. In 2, the distracted driving creates the risk of death or other injury due to the distracted driving. In 1, it’s doubtful we as outside observers would ever know the absolute basis for the officer being prompted to run a check on the plates. It’s definitely fruit of a poisonous tree, but the cost of figuring out that poison is present may exceed the benefit of voiding the charges and cutting the driver loose. It is possible that if the risk of death or injury caused by distracted driving on the officer’s part is de minimis, then 1 may be worse than 2. Scenario 3 is the least harmful as the computer is doing what the officer would manually be doing in 2, drastically lessening the likelihood of death or injuries due to distracted driving, and further lacks the racial motivation.

  • DesmondRavenstone

    I don’t like any of these scenarios. I would prefer that the officer had *probable*cause* to pull over the driver, such as erratic driving which endangered folks on the road. Also, on smelling marijuana, I’d rather the officer have the driver step out and determine if they’re intoxicated sufficiently to impede safe driving; and, if that was the case, then arrest *on*that*charge*alone*.

    The *only* time I would consider a search justified is if the car was reported to be involved in a robbery or other crime. And while we’re at it, I wouldn’t have any property seized unless there was an arrest, and only forfeited when there’s a conviction *and* it’s shown the property was directly connected to the crime.