Lucy Steigerwald on The Drug War and Private Prisons

2015-03-28 · Guest: Lucy Steigerwald (Contributing editor at Antiwar.com) · 52:05

Filed under: Crime, police and punishment
Topics: Civil Asset Forfeiture · Drug Policy

systemic failures and racial origins of the drug war

Bob Zadek and Lucy Steigerwald discuss the systemic failures and racial origins of the American war on drugs. They explore how political motivations, rather than public health, drove prohibition and how public sector unions now incentivize mass incarceration through policies like solitary confinement.

Topics: War on Drugs, Private Prisons, Incarceration, Federalism, Richard Nixon, California Prison Guards Union, Stingray Devices, LOLA, Civil Asset Forfeiture

Speakers:

• Bob Zadek: Host and San Francisco business attorney
• Lucy Steigerwald: Contributing editor at Antiwar.com and Vice.com

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Introduction to the Drug War [00:00]

Bob Zadek: Hello everyone, welcome to the Bob Zadek Show. I’m your host, Bob Zadek, every Sunday at 9:00 AM. We are the only live libertarian talk radio show on the air all weekend. We are proudly the show of ideas, not attitude. Thanks so much for listening. Thanks so much for sharing an hour of your time with me. 800-345-5639 to join my conversation at any time. 800-345-5639.

A libertarian trivia question: What is America’s longest war? What is America’s most expensive war? And what is the war that America can only win with total surrender? And as an additional hint, what is the war that has resulted in more POWs than any war in American history? The envelope, please. Why, of course, it’s the war on drugs. The alleged war on drugs. We have been fighting this war for the entire lifetime of most of my listeners. We have been losing it, and the only hope of victory is in with total surrender.

How did we get into this absurd battle against—whatever that even means—against drugs? And how do we get out? To help me sort out this intractable problem, to get to the bottom of it, I’m happy to welcome for the first time on my show, Lucy Steigerwald. Lucy is a contributing editor of Antiwar.com, frequent contributor to Vice.com, and host of the Politics for People Who Hate Politics podcast. What an alliteration that is. Lucy, thanks so much for joining me on this Sunday morning.

Lucy Steigerwald: Well, thank you very much. It’s good to be here.

The Racial Origins of Drug Prohibition [01:59]

Bob Zadek: Pleasure to have you. Now, Lucy, you are opposed to, and have written extensively about, the war on drugs. The war on drugs—and we’ll get into the interesting history of the war on drugs, a history I dare say most people aren’t aware of, particularly its ugly racial overtones, but we’ll get into that later. But the war on drugs describes a federal policy designed to somehow prevent people through criminal law from an activity that many people simply want to do and which doesn’t hurt anybody else, and indeed probably doesn’t even hurt the people who engage in the activity, which is the recreational use of certain mind-altering drugs: marijuana, cocaine, and perhaps we can include heroin in the list, opium, and related drugs. Now, you are opposed to the war on drugs. Before we drill down, tell us as an introduction to your point of view, what do you oppose about the war on drugs? Isn’t it, after all, the government trying to help us be safer and healthier?

Lucy Steigerwald: Well, I think if it were really that, you and I might oppose it still, because it’s not the government’s business.

Bob Zadek: Did you detect how my question was reeking in sarcasm?

Lucy Steigerwald: I did, I did. But just to clarify in case anyone’s unsure out there. And no, it’s always, always been about a lot more than what sounds like a well-meaning sort of health-related enterprise. The history of the war on drugs, it very early began with “scary immigrants are doing opium, we best ban opium.” Other scary folks are doing cocaine. “Oh, cocaine is scary.” Marijuana, as more people are aware, there was this fear—not legitimate, I’m sorry—this fear that black people, maybe Mexican immigrants, anybody who’s out there who’s away from Middle America, they’re not doing this safe, familiar beer thing, they’re doing this reefer thing. And people of my generation, maybe we’ll watch the 30s movie Reefer Madness and laugh because it’s such hyperbolic propaganda, it’s just ridiculous to watch it. But realistically, it shouldn’t be that funny because, I mean, the war on drugs began with this insane propaganda that said what turns out to be an almost completely harmless substance has been talked about like it’s, you know, the devil weed that makes people do crazy things and white women will get raped and all this.

Bob Zadek: Lucy, let me supplement what you have just said by quoting from a sentence I’m going to read to you from the Journal of the American Medical Association written in the early 20th century. I’m going to quote from the premier American peer-reviewed journal. This is a quote: “Negroes in the South are reported as being addicted to a new form of vice—that of cocaine sniffing.” Close quote. And also some newspapers at the time claimed that cocaine use caused blacks to rape white women and it improved their pistol marksmanship. This was mainstream journalism, and this is the ugly, if not sinister, antecedent to today’s war on drugs. So Lucy, you are spot on in your comment.

Lucy Steigerwald: And you know, it’s not just—the racism is an undeniable part of it, now and in its origins when it was, as you point out so conveniently, particularly shameless. But it’s a moral and a practical disaster. I mean, even if we were pretending that the government had this right to prevent people from doing substances, even if we weren’t offended by the blatant racism, we could still look at the war on drugs and say, “Well, this is just not working.” Nothing about this is working. There are still drugs. We have these increased crime rates. We have these bursting prisons. What about it is working? I saw some of my old colleagues at Reason arguing on Twitter with John Walters, the former drug czar, who, you know, couldn’t even argue very slickly in my opinion. But like, the best question to him would be, “What about this is working?” I mean, doesn’t something need to change? Or are you just enjoying this money waste?

Nixon’s Political War [04:27]

Bob Zadek: Well, you know, those who argue in favor of the war on drugs will counter your “what about this is working” question by saying, “Of course it’s working. We have arrested lots of really bad people, mostly minorities, of course, as we know. So that’s working. We have substantially increased the price of a commodity that ought to be dirt cheap because it is so prevalent. So we have made the habit very expensive.” So by those perverse standards, to them, it is working. Of course, without looking at the fact that incarceration means it’s not working, and raising the price simply creates crime because people who want to buy the narcotic have to accumulate more money and they do so by creating crimes. So the very arguments that the supporters of the war on drugs use to show it is working are, of course, proof of its utter failure.

And again, on the subject of racism, in the early 20th century, the federal government appointed a “blue ribbon panel” to study opium. Oh my goodness, can you imagine? And what they concluded in this findings of this blue ribbon panel, the one sentence that jumped off the page at me when I read it is a quote. Listen to this quote: “If the Chinaman cannot get along without his dope, we can get along without him.” Close quote. That is the scholarly work of a blue ribbon panel. And again, that is part of our history of the war on drugs.

And it should be pointed out that for most of the 19th century and into the early 20th century, cocaine was totally unregulated. In fact, in fact, the Sears and Roebuck catalog—what could be more Middle America than that?—it offered a syringe and a small amount of cocaine for $1.50. That was—and somehow America survived. We survived the 19th century selling cocaine in the Sears and Roebuck catalog in a period of great prosperity, economic growth, and great freedom. And we clawed our way into the war on drugs today. Sorry, Lucy. A bit of Americana for you.

Lucy Steigerwald: That’s good, I love that. I’ve we’ve all seen, I think, like horrifying—well, to our sensibilities in particular—photos of patent medicines from days of yore that had heroin or cocaine in them, but I did not know they were in the Sears and Roebuck catalog.

Bob Zadek: Coca-Cola. Cocaine was an ingredient in the original formulation of Coca-Cola. That was the “coke” in Coca-Cola. And there was a congressional hearing when we started our—to pay attention to drugs. There was a congressional hearing, and in the congressional hearing, there was fears of “drug-crazed, sex-mad Negroes” under drug influence murdering whites, “degenerate Mexicans” smoking marijuana, and “Chinamen seducing white women with drugs.” And indeed, Lucy, the New York Times—the New York Times—in an article early in the 20th century said, “Negro cocaine fiends are new Southern menace. Murder and insanity increasing among lower-class blacks.” This was in the New York Times. Now, I say all of this to show you what the history is of the war on drugs. A shameful period of “academic studies,” medical studies, shameful journalism, and that gave birth to the war on drugs. With that history, what could possibly be good about it?

Lucy Steigerwald: I mean, and it continued—and I think that people of my age, we’re vaguely aware of some of the sentiments you quoted, but even I start to think I’m being a little hyperbolic, and those quotes prove that, I mean, it’s exactly—I don’t know, it’s almost incomprehensible. But it continued in a subtle form later. You know, Time and sort of the weekly rags played their part when Nixon, you know, made the war official in the 70s.

Bob Zadek: Well, Nixon did it. Nixon is the father, the father of the war on drugs. And he did so for crass political purposes. He made a calculation that it was good for business—his business—to declare the war on drugs. He had no particular feeling, and certainly no medical foundation or social foundation, to create and declare a war on drugs. With him, it was a political calculation, not very much different from Bill Clinton hiring Richard Morris to do some polling to see if it was better politics to tell the truth or tell a lie. That’s the way the business of politics operates. So Nixon started all of this with a pure political calculation, and he gave birth to the “war on drugs.” You’re quite right, Lucy.

Lucy Steigerwald: I mean, it was all about making—what will Middle America like to see? What can my cops and feds stand next to for a photo opportunity and look like we’ve done something? What are the young people, the minorities, and those dang hippies up to? Drugs. It made perfect sense in a very sick sort of way.

Bob Zadek: You’re right that hippies were the target. Nixon found hippies to be a wonderful antichrist-type target for his politics. So his war on drugs, he was really focusing on the “hippies,” the Timothy Leary set. And I don’t think he envisioned the war on drugs taking off to be how successful as a battle cry as he made it when he started. But it was purely political. And to have a politician adopt a political tactic that results in so many ruined lives, which continues through today, it is scandalous. And it now has acquired so much of a life all of its own that nobody focuses anymore on whether or not drugs are good or bad, whether we should have a war on drugs. It just is assumed because, Lucy, your generation was born into an existing war on drugs.

The Failure of Prohibition [06:18]

Lucy Steigerwald: We were that. I do think it’s gotten a little better. I’m not that old. I was, in fact, born into the war on drugs, but I remember when about five years ago, nobody except libertarians or Ron Paul types—nobody was talking about the war on drugs and questioning its existence. And that has absolutely changed. Suddenly it’s cool for mainstream, mostly awful politicians to question a little, to admit that we’ve gone a little too far. There’s these finally, decades overdue steps taken that are saying, “Oh, maybe we made some mistakes here.” Of course, Obama somehow at this point is trying to play both sides and basically wants to be the guy who’s like, “Yes, criminal justice is in a shocking state in this country, but you darn kids need to stop over-prioritizing marijuana.” He’s still stuck in this—there’s still this attitude that to focus too much on marijuana, which the war on drugs did for the last many decades most of the time, is somehow still this whiff of hippie-like, “Oh, you just want to smoke the pot, right? That’s why you’re talking about marijuana.” But it has changed and it has improved. It’s just not fast enough.

Bob Zadek: And the issue, of course, the issue is assuming—which I reject, but I’m just being a devil’s advocate—assuming that it is an appropriate government policy to try to discourage Americans from doing something which is bad for them. There is no need for the criminal justice system to be implicated. America has determined that it is good policy to discourage cigarette smoke. And we have been successful, if that’s a goal, in substantially reducing cigarette smoking among adults and teens without any implication of the criminal justice system. Imagine if we started arresting people who smoked cigarettes. Just imagine. But it is equally absurd to not have to imagine, but to witness the arresting of people who engage in what one might consider to be self-destructive behavior, but it only hurts them, if it hurts anybody. That’s a question that no grown-up politician can answer.

Lucy Steigerwald: Well, I mean, I think that also—you’re right about that, that’s a good question. But I think, again, assuming that government has this right, which they obviously don’t, this moral right rather…

Bob Zadek: By the way, governments don’t have rights. It’s not as if government will ask somebody to give it permission to do something. The question is whether government is exceeding its authority as granted to it by ultimately the Constitution. But governments do not have rights. Just like in states’ rights, states don’t have rights. The people who live in the state have rights, but states don’t have rights per se. But we know what you mean, and of course you’re 100% right.

Mass Incarceration and Systemic Capture [09:31]

Bob Zadek: So we got to a situation where now the criminal justice system has been, as you have written about, captured. The criminal justice system, which is designed, Lucy, to protect you and I from bad things, has been captured by the war on drugs so that it is diverted from its primary activity, which is protecting us from bad guys, to this political activity of the war on drugs at great expense and compromise of our safety. And you have written about the whole effect on the prison system as well. And hasn’t there been a capture of the criminal justice system and the prison system by this non-threat of drugs?

Lucy Steigerwald: Well, absolutely. It’s not just drugs, just for a brief side note. There are some many other serious issues with the criminal justice system, including, you know, the whole “getting the real bad guys” with murder trials and stuff. There are things to worry about every facet of the criminal justice system. But the increase in the prison population began to explode three decades ago when Ronald Reagan, our supposed small-government friend, decided to really just kick up the war on drugs, to militarize the war on drugs. And that’s why you have 2.3 million people in prison and jails today, when you had something like 300,000, at least prison-wise, three decades ago. The war on drugs diverts police. Civil asset forfeiture directly prioritizes them to go after drug crimes as opposed to legitimate crimes because they can actually benefit through seized cash or materials, cars—they can seize something else and sell it for more revenue. I mean, the entire system is now set up to prioritize non-crimes, and mandatory minimums kept people in prisons for longer for drug and non-violent gun crimes. It’s a disaster.

Bob Zadek: It’s a disaster for everybody except for the Corrections Corporation of America and the California Prison Guards Union. It’s not a disaster for them. We’re going to go to break in a second, Lucy. We’ll be back in 60 seconds. This is Bob Zadek, I’m talking to Lucy Steigerwald. We are talking about the failed, ultimate failed war on drugs and the growth in the prison population. 800-345-5639 to join my conversation.

[Sponsor Break]

Bob Zadek: Welcome back to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. The weekends are a libertarian desert in so far as talk radio is concerned. You are listening to the oasis in that desert. I’m Bob Zadek. 800-345-5639 to join my conversation with Lucy Steigerwald. We are talking about the failed, the utter failure of the war on drugs. The war that can only be won if America completely surrenders, gives up, and acknowledges that the war on drugs, which has an ugly racial history, which probably has no foundation in the principles of federalism and constitutional law, which most importantly, most importantly, in so far as we libertarians are concerned, deprives millions of Americans of their liberty.

One of my problems with the war on drugs is that it denigrates the value of liberty, of freedom, of the freedom not to live in a cage. We have—politicians have cheapened the value of liberty by being so quick to take it away. Governments are the only institutions that have the power, the lawful power, to deprive Americans of their liberty, the core value that makes us humans. And America has abused that sacred privilege of preserving liberty, and by the criminalization of non-criminal behavior, has taken away the liberty of so many Americans. In my view and the view of many of my colleagues, liberty is to be cherished and not taken away so cavalierly, especially for behavior that doesn’t harm the person or property of other Americans. And I beg elected officials to respect the importance of an American’s liberty and do not take it away for political purposes and for purposes that are in the first instance unconstitutional.

So Lucy, my problem is that with the sentencing guidelines and with the sentencing regime, we cheapen, we take away at the drop of a hat the liberty, and we lock somebody up in a cage and we take away their very humanity for a reason that is indefensible, as you have pointed out.

Lucy Steigerwald: Absolutely. And I think that, I mean, as bad as that is to do that even to a small extent is, mandatory minimums and just general sentence inflation, I think, has just really warped people’s ability to understand how long and how, you know, what a big deal going to prison is and should be. So there’s this sort of cavalierly, “Well, he only got five years in prison or three years in prison for those, you know, growing that marijuana field or what have you.” And I think people have actually lost the ability to tell that that’s a really big deal. Sending somebody to prison is a really big deal. And I would argue that you should save it up for, you know, the really serious stuff, so you actually have the resources to, you know, make sure somebody really did murder somebody, which sometimes it’s hard to tell. Putting somebody in prison, if they’re not violent, if they’re not a threat, even a thief, we should be talking about restitution to the victim, not “you violated the sacred oath of the state and therefore the state’s mad at you and the state’s going to put you in prison.” We should be remembering “no victim, no crime,” as the voluntarists say. And even when there is a victim, you know, restitution instead of just “you violated the law” and like, that’s just such a fundamentally bad system.

Federalism and Constitutional Authority [12:31]

Bob Zadek: And the principle of “no victim, no crime” is a core doctrine of libertarian thought. We start with the concept that the purpose of government is to protect our life, liberty, and property. That is the purpose of government. And we have government do it because it is an unhealthy society if everybody is walking around packing heat and they are protecting themselves from bad guys. That’s not a society anybody would want to live in. So we all—we start in a society where everybody knows what’s wrong. What’s wrong is to harm another or to take their property. We start with that principle and we say, “Okay, government, we form government to protect us and our property from bad actors.”

From that—and those—there’s even a word for it. Those bad acts are called malum per se. Malum per se, Latin phrase that means it’s obviously a bad act. No culture or society would dispute that. But then we have a government which creates other criminal acts that are not inherently bad, but somebody, an elected official, decides he or she doesn’t like them. The Latin word is malum prohibitum. It’s bad because we say it’s bad, not because some moral code makes it so. And that is the war on drugs. The war on drugs, in the history of man on earth, drug use was never in any society was never considered to be a bad act. It might be a bad idea, but not a criminal act. In the history of all the societies on earth, the only time drug use became bad was in the early 20th century of the United States, which as I said, has an ugly racial history, not a medical history.

So Lucy, we are living in a culture that was invented in 20th-century America for racial reasons, and other societies have followed us, but we have been—we invented the product of criminalization of drug use. We are the proud inventors of that. No other culture on earth ever did it before us and never will again. We hope.

And of course, there also is the issue of what business is it of the federal government versus the states. And what’s interesting, as you have observed and written about, is all of the good stuff that’s going on in drug policy is going on at the state level.

Lucy Steigerwald: That’s absolutely true. And the states—and more to the point, you know, people in those states making sure that in Colorado, for example, I vaguely know one of the guys who made sure that the marijuana legalization got on the ballot in 2012. I mean, people being fed up with this finally and actually getting stuff done. I mean, I was fed up with the war on drugs years ago, but I just sat around being cranky about it and thinking we’re doomed. And these people, you know, got up and actually started to change things and got it legalized in Colorado, in Washington state. And that is how you’re going to get the federal government’s back against the wall is you make it legal in lots of states, you start talking more and more about how this isn’t working. And since government follows us, you know, it pretends it’s leading the way, as John Stossel said, it gets in front of the parade and pretends to be leading it. But it does, if the people actually get really fed up with the war on drugs, that’s when it’ll stop, and not before that. And we’re not there yet. We’re just finally, finally, finally improving and getting somewhere away from it.

Bob Zadek: And of course, what to me, the federal government has no constitutional basis to criminalize drug use. And interesting, there’s an interesting political science question that I’d like to toss out. The government, during the temperance movement which preceded the prohibition, there was a movement to criminalize not the consumption of alcohol, but the manufacture and sale. Consumption was never criminalized, but manufacture and sale they wanted to criminalize that. And since it was acknowledged the federal government had no power to do that, it took a constitutional amendment, the 18th Amendment, in order to give Congress the power. Well, if you need a constitutional amendment to give Washington the power to prohibit alcohol use, why don’t you need a constitutional amendment to give Congress the power to criminalize and prohibit drug use?

And that is a fascinating political science question, complicated and technical. But putting aside the technical stuff, Americans should be asking themselves, “Okay, Washington, acknowledge you lack the power. If you want to enforce a drug policy, get the Constitution amended. Take a shot at that, or else leave the issue alone.” And Washington has used taxing statutes and the Commerce Clause of all things. It is the Commerce Clause—

Lucy Steigerwald: Oh, always the Commerce Clause. It’s magic.

Bob Zadek: It’s always the Commerce Clause. And Washington has used the Commerce Clause to regulate drug use. And if anybody out there in our audience believes for one second that our founders envisioned when they drafted the power when they gave Congress the power to “regulate commerce among the states,” if they envisioned that would result in a million mostly minority Americans—it would cause them to be incarcerated by something as benign as “regulating commerce between the states,” no one would sincerely believe that was what was intended. And yet that is the hook, that and the taxing power is the hook by which so many Americans have had their lives ruined by Nixon’s war, the longest war in American history.

And the battle, it’s interesting, the battle—the states are fighting back, and it is healthy for federalism and healthy for the balance between state and federal power for what Colorado and Washington state, Massachusetts and other states, California probably in 2016, are doing and sticking their thumb in the eye of Washington and saying, “Take your drug policy and stuff it. We know what’s good for our citizens.” So the states are taking the lead, which is healthy for America.

Private Prisons and Public Sector Unions [14:41]

Bob Zadek: Now Lucy, you have studied a lot the prison system. And there is a movement in this country to “privatize the prisons.” And tell us what the privatization of prisons—the cells, the cages that hold these unfortunate Americans who have been victimized and deprived of their liberty by Washington—what is the system of privatization of prisons and what’s your problem, if anything, with it?

Lucy Steigerwald: Well, I wrote a piece for the Daily Beast a couple of weeks ago about this, and I tried to make it very accessible to some, you know, internet-wandering liberal. And in it, I talk a lot about how private prisons are—I can see how this freaks you guys out. You know, nobody should be financially—have a financial incentive to continue over-criminalization of society, to have a financial incentive to keep prisons full as possible, to build more, to employ lots of prison guards. That is bad. Liberals, you know, fine, great, you guys are right about that. The problem is, well, first of all, it ain’t really private. This idea that government contracting out to a company counts as private, I think, is very faulty. I was just writing something about Harris Corporation, which makes Stingrays, which are these, you know, they can tap cell phones and all that sort of thing.

Bob Zadek: Well, let me help the audience understand. Stingray is an invention or a type of product that we don’t know much about because it’s kept secret. But Stingrays are another abuse of privacy. Stingrays are aircraft that fly over an area and can imitate the behavior of a cell phone tower. So all of the cell phones in an area, when they think they are talking to a cell tower, are talking to the Stingray device loaded in an aircraft. And a government will be able to monitor all activity in the cell phones in that area because the cell phones are talking to the tower—talking to the Stingray device in a government airplane. There are profound privacy issues. Many people believe the Stingray device will ultimately be found to be unconstitutional, but right now it’s living in the gray area. Sorry, Lucy, believe it or not, there are some people out there who aren’t aware of the Stingray. I know that shocks you, but it might be true. So I had to just fill in the audience when you were using this term. Sorry, Lucy.

Lucy Steigerwald: No, I apologize. It’s a bit tangential, but some a journalist did this Freedom of Information Act request to get information about these devices, and they got this completely blacked-out redacted document. And the justification for it was Freedom of Information Act request number four, which is “you don’t have to reveal your trade secrets.” So this company that is making these devices that are used to spy on us can say, “Oh, that’s my trade secret.” And as far as I’m concerned, that is not a real private company if their entire purpose is to sell spy devices to the government. That is a warped concept of what private is.

And it’s the same with private prisons. You can say private all you want. Yes, it’s a company, officially a corporation, but the government is the only entity that can say, you know, “This is the law, you have violated the law, we’ll go through here’s the procedure, you plea bargain, maybe you go to trial, but that’s rare, and now you’re going to prison, and you’re going to prison for this long.” A company on its own cannot do that. And so this idea that private prisons are really private is false.

Bob Zadek: Well, of course, they’re privately operated, but they have no say in how many prisoners are put in there. They don’t create statutes. They might lobby for—

Lucy Steigerwald: They do lobby, and you’re right.

Bob Zadek: But on the subject of lobbying, of course, the prison industry is dominated by the various prison guard unions. They are the ones who make buckets of money by increasing the prison population. Indeed, the most powerful, the most powerful, number one, the most powerful public service union in the entire country is not SEIU—they are rookies compared to the California Prison Guards Union. They are far and away the most powerful union in America. California legislators cringe in fear of the anger of the prison guards union. And the prison guards union are the ones who were responsible for the California “three strikes and you’re out” law because it was good for business. And the California prison guards union are the ones who encourage solitary confinement, which nobody can defend and which is clearly cruel and inhuman punishment. There cannot be any argument. Why do they like isolation? Because when you put a prisoner in isolation, it requires three times the manpower of the prison guards. So solitary confinement is great for business if you’re a prison guard. So the incentive to pervert criminal justice for gain is the prison guards, which means people are deprived of their sacred liberty so the corrupt prison guards can make a few bucks in California. Nothing is more enraging than that. So Lucy, you’re right, there are segments of our economy that prosper from the deprivation of liberty, but they are the prison guards far more than those who build the prisons.

Lucy Steigerwald: Or the entirety of the Drug Enforcement Administration, for example. I mean, there’s lots of people in the public sector whose jobs exist because of over-criminalization. I’m sure we could cut down pretty heavily on the Bureau of Prisons staff if we got rid of the war on drugs as well. So the point of my piece was not “yay private prisons,” it was simply “this isn’t really different than what we already had.” And I think liberals could definitely be on board with this criminal justice reform thing. To their credit, a lot of them are. But I think to just focus on private prisons as a problem is missing the point, because you need to understand that the perverse incentives were a little more clouded in the public sector with prison guard unions and all what you just said, but they’re not really that clouded. It’s very easy to see that they want these policies to perpetuate because their livelihoods depend on it. And it’s the same. That’s the whole point. Private prisons, they’re the same thing. It’s not a big new threat, it’s the same old thing with slightly different window dressing.

Bob Zadek: And the private prisons simply operate under standards set forth by government. So it’s not as if they get to use whips and chains and other policies like that. Everything they do is subject to their contract with the government. So there is nothing inherently evil, other than to those who abhor anybody making a profit on anything, there’s nothing inherently evil about private prisons. Although whenever an abuse pops up in a private prison, it gets a disproportionate amount of attention in the media as though showing, “See, private prisons don’t work,” ignoring, of course, the hellhole, the 300-year-old in terms of its practices Rikers Island in New York City, which is a public prison, which is like the Inquisition, it is so cruel. But that doesn’t get much attention because that is government. It gets some attention, but not a lot. But private prisons get, of course, a bit of a bad rap.

Now, some prisons, there’s a movement now within the prison population to sell prison labor. Have you given that much attention?

Lucy Steigerwald: Not as much as I should. I’m a little worried about this idea. I remember hearing about how over in California, they use a lot of prisoners to actually fight wildfires. And that sounds sort of appalling because I know they’re paid very little for the work, but I did read a couple of people saying they’d rather be out there than in prison, which in itself is troubling. They’d rather be doing something dangerous than sit in their little cells all day.

Conclusion and LOLA [18:41]

Bob Zadek: If you had your way, what would be the bullet points of how you would change the war on drugs? As you write, you have certain goals in mind, certain changes you would like to see. What would be, if you can rank them, as to changes you would like to make in the war on drugs?

Lucy Steigerwald: Well, first we get rid of the war on drugs. I mean, first you get rid of all prohibitions against any substance consumption or selling or possession.

Bob Zadek: And when you say get rid of, I think what you mean is decriminalize it. It’s no longer a crime. So you can own cocaine, you can sell cocaine, you can buy cocaine, you can use cocaine, you can grow marijuana.

Lucy Steigerwald: And you know, obviously trying to keep cocaine away from eight-year-olds and all those sort of imagined horror stories of what the society would look like.

Bob Zadek: As we do with cigarettes and drugs and lottery tickets today without criminal law statutes.

Lucy Steigerwald: Right. And there are things happen and that’s bad and that’s a thing that people should keep an eye on.

Bob Zadek: In protecting eight-year-olds, we of course criminalize allowing them to walk to a playground themselves. So we are a tad overprotective, as Lenore Skenazy has pointed out in her Free-Range Parenting campaign. She was a guest on my show a couple of months ago.

Lucy Steigerwald: She’s great, I love her.

Bob Zadek: She is a great and was a great guest. So you would legalize, perhaps tax, but legalize all drug use. Now, and treat, I guess, addiction—drug addiction—which might very well, will be the result. There might be increased drug addiction, although it’s not clear that legalizing it increases its use. People after all are not inherently self-destructive, most people are not. Therefore, we legalize cigarette use and yet we are able to keep the use down. So there’s no reason to think the same thing wouldn’t happen with drugs. So it would simply be the way America was in the 19th century, which was perhaps taxing it, perhaps, but allowing it. And if people choose to engage in self-destructive behavior, that is theirs to do. People are allowed in some states to ride motorcycles without helmets, people are allowed to skydive, people are allowed to be ballerinas—very destructive to your body—and yet it is their decision to make and you would have the same freedom for drug use.

Lucy Steigerwald: Right. I mean, I like to tell people all of the bad things about drug abuse, addiction, people with real problems—all of that is already out there. On top of it, you have a multi-billion dollar a year disaster of a policy and you have all of these people in prison. Everything bad that they’re afraid of with the addiction is already there.

Bob Zadek: Lucy, we have one minute to go. I want to just give a plug to the LOLA organization. Tell us about LOLA in one minute and how my friends out there can follow your writing. You have a minute.

Lucy Steigerwald: Well, the easiest thing is L-U-C-Y-S-T-A-G on Twitter. And LOLA, Ladies of Liberty Alliance, is a great sort of decentralized libertarian lady group. They train women—media training—they empower women. They have social little socializing things and they’re just—they’re a good group. Libertarian ladies, go look them up. Ladies of Liberty Alliance. We need more libertarian ladies out there.

Bob Zadek: Thanks for your time, Lucy. Thanks for giving us an hour of your thought and wisdom. This is Bob Zadek saying so long for now. I’ll be back sure as anything next Sunday for another hour of libertarian talk and opinion. Thanks so much for listening. Have a good Sunday.

Show prep notes

Bob’s own preparation for this episode.

BIO:

Private Prisons Article

Other Books, Articles and Resources

Ladies of Liberty Alliance

Lucy Steigerwald

Topics:

1. Private prisons or the drug war (among other injustices) – which is the real problem?

2. **Ladies of Liberty Alliance —

Contact:

Cell phone is for the planning call

Landline for Sunday is

BIO:

• Contributing editor of AntiWar.com

• Former associate editor at Reason

• Frequent contributor to VICE.com,

• “Her articles have appeared at Antiwar, Reason, Pittsburgh City Paper, the Pittsburgh Tribune-Review, and various libertarian blogs. Steigerwald is indeed a libertarian who is particularly cranky about the drug war, prisons, cops, and war.”

• Host of the “Politics for People Who Hate Politics Podcast” — free-flowing, informal and frequently hilarious panel-style video podcast with a very millennial bent.

• @LucyStag on Twitter — where she has over 5,000 followers

Private Prisons Article

For-Profit Prisons Are Bad, But the Drug War Is the Problem 3/9/15, Daily Beast,

Steigerwald emphasizes the point that if lobbying and profiteering by private prisons is a problem, then lobbying by the much larger special interest group of public prison unions is an even greater problem: both seek to keep draconian policies in place, but government-run prisons remain far more influential in doing so to date.

Alex Tabarrok makes a similar point in an insightful blog post from 2005, although he is generally in favor of them:

“It is true that a private prison could lobby for tougher sentences in order to boost demand for its product. It’s hard to take this too seriously, however. Do we think that contracting out garbage pickup is a bad idea because the garbage men will lobby for wasteful packaging? Moreover, the problem becomes less serious the more private prison firms there are because with more companies each will gain less from lobbying for say tougher sentences in general.”

See also, The Role of the Prison Guards Union in California’s Troubled Prison System

(Tim Kowal, Ordinary-Gentlemen.com, June 6, 2011)

“After the rapid expansion of the prison population beginning in the 1980s, CCPOA’s (California Correctional Peace Officers Association) 33,000 members today earn approximately $73,000 and pay monthly dues of about $80. These dues raise approximately $23 million each year, of which the CCPOA allocates approximately $8 million to lobbying. As Ms. Petersilia explains, ‘The formula is simple: more prisoners lead to more prisons; more prisons require more guards; more guards means more dues-paying members and fund-raising capability; and fund-raising, of course, translates into political influence.’”

Kowal quotes from an article in the Stanford Law Review:

“… From 1998 to 2000 it gave over $120,000 to crime victims’ groups, who present a more sympathetic face to the public in their pro-incarceration advocacy. It spent over $1 million to help defeat Proposition 66, the 2004 initiative that would have limited the crimes that triggered a life sentence under the Three Strikes law. And in 2005, it killed Gov. Schwarzenegger’s plan to “reduce the prison population by as much as 20,000, mainly through a program that diverted parole violators into rehabilitation efforts: drug programs, halfway houses and home detention.”

Back to Steigerwald’s article:

“It sounds outrageous when you read that Corrections Corporation of America (CCA) has signed a billion-dollar contract with the Federal Bureau of Prisons to detain undocumented immigrants. But the Bureau of Prisons is a public institution. It exists to lock up people—in this case, migrants whose only crime was voluntarily crossing a political border. The CCA is coldly profiting from this reality because it can.”

The related issue of private military contractors (Slate, 11/5/13) entails the same problem, namely the war/policy itself – for which the government bears the responsibility. Opportunistic firms are motivated by profit, but this is an example of pure crony capitalism not free markets. Unfortunately, there is no simple, truly free-market solution to the problem of prisons, hence the focus by most libertarian thinkers on reforming other laws. Steigerwald continues:

“What really needs to be changed are the laws that created nonviolent criminals and filled our prisons to bursting. By all means, object to private prisons and their profiteering. But also object to the public prisons that house the vast majority of inmates. Hand-wringing only over private prisons and profits is morally myopic. Only the state can lock you up, or permit another institution to do so and call it something other than a crime.”

Other Books, Articles and Resources

Alex Tabarrok of Marginal Revolution and The Independent Institute co-authored/edited the book “Changing the Guard: Private Prisons and the Control of Crime” in 2003, comprising a series of articles by different authors on different angles of the prison privatization question.

• Amazon link

• Review by Daniel J. D’Amico in the Journal of Libertarian Studies:

“Together these articles serve as a glimpse into today’s market-oriented research surrounding prison privatization leading up to the book’s most notably radical contribution: Bruce Benson’s chapter which closes the text. This review draws attention to his crucial normative concern: what is the appropriate role of government? Benson’s chapter is a change of pace from the typical proponents of government contracting. Benson looks at the deeper issue of legitimate law-making as a precursor to effective prison policy.”

“…The greatest cost felt by society for [the implications of the debate over prisons] is the loss of individual liberty. Benson performs an in-depth analysis of the war on drugs to demonstrate misconceptions of justice and crime. These misconceptions drive public policy and have served to the detriment of individual liberties, millions of tax dollars, and the safety and security of American citizens. Benson characterizes the state as the true aggressor against its citizenry and questions whether its operating efficiency is truly needed or desired. This collection demonstrates that private companies guided by the free market and competition produce more services, at higher quality standards, and lower costs than their governmental counterparts even in the realm of justice. Exposing this truth gives value to the text as these are rarely accepted facts in today’s discourse. The government is known for its managerial and productive inefficiencies and its political injustices as well. The modern prison system is the product of the state’s own interests and motivations and is therefore not to be trusted as impartial or in accordance with the goal of justice as it is held in the minds of the citizenry. Though individual contributors within the volume—apart from Benson—may not be willing to take the implications to such radical conclusions the greater research seems to be pointing straight toward libertarianism nonetheless.”

In a 2007 Cato Unbound forum on anarchy, Bruce Benson writes on privatization versus “contracting out” - this is probably the most articulate philosophical piece I found on the subject. Benson suggests that while people like Alex Tabarrok may be correct that private prisons are not the unique evil some make them out to be, they should not necessarily be a cause for libertarians to champion either, merely to squeeze a few more dollars out of the budget:

Now consider so called contracting-out. The contracting out for prison services (unfortunately called privatization by most policy makers and many academics) actually refers to a particular type of contract in which some part of the bureaucratic decision-making hierarchy is replaced by a decision-making hierarchy that operates under a different set of incentives than those faced within the bureaucracy

This leads us to ask which set of incentives is less likely to lead to abuse. In addition to the laws that are keeping so many people in prison (for which public sector unions are partly responsible), we should be concerned with the systems of accountability that are needed regardless of who is running the prison system. Perhaps government prison guards will take their responsibility more seriously because they are public servants (doubtful) or because they will be punished more severely for abusing prisoners. On the other hand, Benson points out that if a private company can be sued it will be more accountable than a bureaucracy that cannot be sued.

However, contra Steigerwald and Tabarrok, Benson also acknowledges the possibility that private firms may be more effective at lobbying than prison unions, although no evidence is provided that this is actually the case.

As an anarcho capitalist theorist, Benson believes that true privatization requires privatizing both supply (providers of prison services) and demand (the legal system and provision of laws itself). He laid out his vision of a stateless legal system in his 1990 book The Enterprise of Law: Justice Without a State – see FEE.org review, for example: