“Once the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments.”

–  Ludwig von Mises

Today, as I commit these thoughts to writing, it is the 81st anniversary of the passage of 21st amendment to the United States Constitution, which nominally repealed the federal prohibition of the sale, manufacture, and consumption of alcohol. As I’ve grown into an adult who enjoys brewing his own beer and likes his liquor brown and neat, I’ve developed a special fondness for this day, which to me had become a symbol of American individualism and freedom. Paradoxically, I am likewise saddened, as today is also a mocking reminder of the reality that prohibition, in various forms, is not truly repealed and in fact is the point of departure for much of the violence imposed by the state on its citizens.

The tenuousness of this justification of force has been made keenly apparent in the high profile murder of New York resident Eric Garner and the subsequent failed indictment of the police officer, Danny Pantaleo, who killed him in a botched attempt to restrain and arrest him. Much of the attention that the case has received has been directed at the facts that Eric Garner was black and not acting violently and was killed by a white officer who used an unnecessary chokehold while Garner was trying to yell that he could not breathe. Because the failure to indict happened during the protests of the high-profile case concerning the shooting death of Mike Brown in Ferguson, MO, much of the outrage has been focused on history of the disproportionate use of force against black men during encounters with law enforcement. While recognizing the truth to this narrative, I would suggest that the particular case of Garner is indicative of a level of injustice that transcends, while also illuminating, the incongruous treatment of black Americans. Garner’s death was the predictable outcome of our society’s allowance if not outright insistence of our government’s enforcement of prohibition to control the alleged moral failings of its citizens and furthermore to exact revenues from them.

I’m afraid that this last point is too often lost in the current dialogue, and I’ve even seen it openly derided as a “vile response”. I emphatically disagree and avow that prohibition is the root of most contemporary instances of excessive state-agent force in general and government-institutionalized racism in particular. In perceiving Garner’s death only as a datum of racial oppression we place the focus on the effects while ignoring one of the most important causes (note that I don’t mean to suggest that prohibition is an unique cause of racial oppression, rather I’m claiming that it is a critical yet overlooked one).

The state and city of New York together place a $5.85 tax per pack of cigarettes. Predictably, this unconscionable “sin tax” provided the incentive for an underground black market of smuggling cigarettes from other states and selling them, untaxed, at lower prices. Ponder this inconceivable truth for a moment: cigarettes, a perfectly legal commodity in our country are being smuggled into New York from surrounding states like Pennsylvania and Connecticut. We’re not talking about smuggling opiates from Afghanistan or cocaine from Columbia. Americans are smuggling goods from one state into another inside the union! So much so that illegal, untaxed, smuggled cigarettes account for an estimated upwards of 60% of all tobacco sales in the state. All the individuals involved in the majority of tobacco sales in the state are criminals in the eyes of the law and are subject to all manner of punitive restitution in the form of arrests, raids, fines, and being locked away in a jail cell. For buying and selling cigarettes. In America. So, are they criminals because they are morally corrupt and nefarious people?

It is important here to recognize than any government intervention that artificially raises the price of a commodity, from higher taxation to outright prohibition, will result in black markets. The negative externalities we associate with black markets, the extrajudicial violence such as extortion and murder, are not due to any special depravity imbued within the commodities themselves but rather are the logical result of participating in a market that not only lacks the legal protection enjoyed by legitimate markets but is met with open hostility and thus forces participants to deal with trade disputes on their own in secret. In other words, drug gangs, much like the alcohol gangs of the 1920s, and all of their violent proclivities, are created as a result of the prohibitionist laws and the resulting government enforcement.

As economist Milton Friedman emphasized:

“If you look at the drug war from a purely economic point of view, the role of the government is to protect the drug cartel. That’s literally true.”

And yet, it is not simply the gangs that are responsible for this violence. In requiring agents to enforce the prohibition and taxation laws, the state employs violence in its attempts to shut down the black markets.

And here is the salient factor in the case of Garner. I don’t know whether or not Pantaleo was a racist and used an improper amount of force in subduing Garner because of a predilection of violence directed at black people. A more interesting question, for me, is whether or not any amount of force was proper in this circumstance. Garner himself, before the take down, spoke of being tired of the constant aggression he got from police and asked to simply be left alone. Would it have been okay had he simply been assaulted by a group of costumed men and not been put in a chokehold? Would it have been all right if they had extorted money and property from him in the guise of fines? Would it have been proper for Garner to have been thrown in the human cage that we call prison for the “egregious” act of selling cigarettes without the permission of the government? Do we really believe in the legitimacy or necessity of taxation so much that we conclude that any of these responses are appropriate things to do to a human?

This is not meant to be dismissive of those commenters and protesters who recognize this as yet another entry in a long list of force disproportionally directed at black Americans. Rather than deny this important truth I hope to provide context and identify one of the most important steps in combating institutionalized racism in our country. Police brutality and murder of blacks is not going to be stopped by an 8-hour sensitivity training or by amending hiring practices and certainly not by pursuing racial parity in arrest statistics by intentionally targeting white suspects to harass.

Laws that are intended to control the behavior of individuals will disproportionately come down the hardest on those who are at the margins of society, which would include the poor and racial minorities. The failure to indict officer Pantaleo was a not insignificant failure of the justice system, but to focus solely on this one failure is to miss the forest for the trees. Pantaleo is only one individual in a system that justifies the practical oppression of minorities for the purposes of behavior control and revenue accumulation. He may have been the only person performing the chokehold, but he never would have been there, harassing and assaulting a peaceful man, had he not been ordered there by his superiors in the execution of his duty to enforce laws enacted politicians and implicitly supported by innumerable citizens.

Senator Rand Paul made this point in an interview and Jon Stewart’s infuriatingly obtuse response highlights the shocking inability of some people to connect the dots. Blacks comprise a minority of drug sellers and users and yet have the highest percentage of arrests, convictions, and sentences for non-violent drug offenses of any group. Protesting the individual specific actions of officers when refusing to acknowledge our tacit acceptance of their behavior in general is an exercise in futility. The best thing we can do to at least partially correct the imbalance of force is to end the war on drugs. It is certainly not the only thing that can be done, but it is absolutely critical. Garner’s case of untaxed cigarettes is an extension of this idea that the government has a legitimate role in controlling that which people can choose to put or not put in their own bodies and use violence against them to make it so. Until we citizens affirm the only legitimate role of law enforcement is to prevent and combat violent crimes with actual victims, we should find no surprises when innocent people are killed and the justice system does nothing about it.


Ed Krayewski’s article at Reason on the response to the Garner case helped to formulate some of my thoughts.

Here you can watch a video interview with Milton Friedman in which he discusses drug legalization.