The uses and misuses of Eric Garner’s death

Bill Otis takes on George Will’s column (which Steve made note of here,) which claims that Eric Garner “was criminalized to death.” Among Bill’s points are these:

1. A sales tax on cigarettes and criminal penalties for not paying it do not signify criminalization run amok. Indeed, conservatives generally prefer sales taxes to income taxes, on the theory that it’s better to tax consumption than production.

2. There is always a possibility that excess force will be used to enforce the law, but laws should still be enforced.

3. Garner did not “die for violating” New York’s tax law, as Will says. He died because the police used excessive force to enforce that law. There is no reason to believe the police would have behaved differently if Garner been suspected of behavior that George Will believes is properly “criminalized.”

4. The Garner incident has nothing to do with the high incarceration rates and the use of solitary confinement that Will denounces. It is extremely unlikely that Garner or anyone else would wind up with a stretch in prison — and still less in solitary confinement — because of non-payment of cigarette taxes, or any remotely similar regulatory crime.

5. The high incarceration rates that Will denounces have helped produce an enormous drop in the rate of crime. The crime rate is half what it was twenty years ago; there were, for example, more than 10,000 fewer murders in the United States last year than there were in 1993, although we have a much larger population now.

Readers won’t be surprised to learn that my views on the matter are much closer to Bill’s than to Will’s. I wrote about the issue here.

High incarceration rates have nothing to do with regulatory crime and everything to do with drug crime. If Will wants to to see a dramatic lowering of the incarceration rate, there are only two alternatives: overhaul the drug laws or stop enforcing them.

If Will favors one or the other of these measures, he should say so and make the argument. He appears to be on the fence about legalization.

In any case, the anomalous circumstances of Garner’s death have nothing to tell us about what Will calls “the scandal of mass incarceration.”


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