I confess I’m a bit behind the times. I saw all the kerfuffle surrounding Bonnie St. Jean’s piece on Rare.us, titled “Why Stand Your Ground laws are unintentionally racist and anti-liberty” but am just now getting to addressing it. I must say, I’m not convinced.
In her piece, St. Jean begins with a great summary of facts on why the War on Drugs sucks: despite the fact that white people and black people consume illicit substances at about the same rates, black people are incarcerated at much higher rates than white people. Black people are also much more likely to be convicted, and mandatory minimum sentences are higher for drugs that black people use, even though they are identical to drugs with lesser minimum sentences, mostly used by white people. It’s a good summary, worth pursuing.
St. Jean then segues into talking about Stand Your Ground laws and how they have similarly disparate statistics:
A study on race, SYG laws, and justifiable homicide shows that in SYG states, “the shooting of a black person by a white person is found justifiable 17 percent of the time, while the shooting of a white person by a black person is deemed justifiable just over 1 percent of the time.” In non-SYG states, the gap between those averages is lowered by 50 percent.
With this set of statistics to support her, she drops her thesis on us: “SYG laws contribute to the justice system’s structural bias against minorities. The racial disparities associated with SYG laws are even grimmer than our drug laws.”
There are some nits to be picked here, obviously: the War on Drugs is a massive complex of state and federal laws, FDA regulations, courts, juries, and prison systems, while SYG laws are only in about 21 states, and it is one law. St. Jean’s great research in the beginning spans multiple sources and studies, whereas it seems that the research on SYG laws has (understandably) not been nearly as widespread. It doesn’t seem quite apt to me to compare the two directly, at least not at this point.
However, one cannot deny that the two are alike in that they are both policies that are incredibly racially biased in their enforcement; St. Jean is right on the money there. But St. Jean’s thesis is that “SYG laws contribute to the justice system’s structural bias against minorities” (emphasis mine). And I’m not sure I’m sold on that point.
Let’s assume that the creation of a law is just—and I don’t just mean just in process, but just in intentions and just in its neutrality and adherence to sound principles. It is not vague and cannot be arbitrarily applied and still be legal. A law is crafted such that in word it is not biased against any person or party, and the creators of the law have no reason to believe that it will be misapplied. Let’s take murder, for example. Then, that law against murder is taken and enforced in a bad way. The majority of people arrested for that crime are black people, suggesting that perhaps there might be some bias in the system. Is the law against murder unjust, or is the legal system broken?
That suggests to me that the legal system is terribly broken, that many people are influenced by racial biases that they don’t know exist, which has the potential to take a law that is just and make the application of that law unjust.
The War on Drugs’ system of policies, regulations, and restriction are not just, from a libertarian perspective, because they involve telling others what to do with their bodies. Stand Your Ground Laws, insofar as they are laws, are still (arguably) just from a libertarian perspective. I wouldn’t qualify either of these laws as racist, per se, but rather their application is a prime example of how our justice system is tragically broken and racially biased. That might be a “collectivist” answer, but, hey, if the shoe fits.
The answer we get when we look at the mass incarceration of people of color is not, necessarily, that laws are bad (though some certainly can be. See AZ SB 1070). It is tempting to think that way, because laws are comparatively much easier to change than justice systems or changing systemic racial bias. But no matter what laws are on the books, if systemic racism persists and poisons our justice system, they will all be unevenly applied and they will all yield racist results. People should focus on fixing the people that comprise the system (ie, themselves and others around them) or coming up with a better system that is immune to such biases.
It’s a much harder job, but those who care about justice should be willing and able to do the work, slow as it may be.