Injustice for All - The (Familiar) Fallacies of Criminal Justice Reform

Published by True Blue Publishing LLC

2320 W Waco Street

Broken Arrow, Oklahoma 74011, USA

Copyright 2021 by Brian Surber

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher.

Printed in the United States of America on acid-free paper

ISBN-13: 978-1-7367421-1-2 (hbk)

ISBN-13: 978-1-7367421-0-5 (pbk)

ISBN-13: 978-1-7367421-2-9 (ebk)

Library of Congress Control Number: 2021904655

Cover design by Lydia Surber

To Lynel, Jacob, Lydia and Jonah . . . my World,

To my parents . . . for EVERYTHING,

To every other Surber, Cuttler, Novak, Beck, and Widowski . . . I love you all,

To every victim . . . you will never be a number to Us.

Contents

Preface

Introduction

1. The Purpose of the State

2. The Evolution of Small-Government and Libertarian Thought

Prelude to Libertarian Thought

Modern Libertarian Thought

Milton Friedman

3. The Wicked among Us

Law Enforcement versus Intellectual Knowledge

4. Enforcement and the Small-Government Libertarian

A Simple Summary of Libertarian Thought

The Helpless and the Role of Government

Drug Use and Theft

Costs

5. Same Wolf, Different Sheep’s Clothing

Similar Paths, Flawed Presumptions

Same Techniques: The Nobility of the Cause

Same Techniques: The Perpetuation of Myths

Same Techniques: Pseudoscience

The Apparatus

Propaganda

Other Similarities

Conclusion

6. The Experience of Legalizing Marijuana

The Fraud of Medicinal Marijuana: The Background on the UCDSA and FDA

The Campaign for Medical Marijuana

Mental Health Impacts of Marijuana Use

Marijuana and Violence

Marijuana and Intelligence

The Outlook

Other Impacts on the Community

Conclusion

7. A Lesson in History: Where Did the Meth Labs Go?

The One-Pot Epidemic

Operation Cast Net

The Email

Other Historical Methamphetamine Manufacturing Trends

The Synthetic Cannabinoid Epidemic (Spice, Incense, and K2)

Other Successes

Failures

A Tale of One City

False Comparisons to Prohibition

8. The Lack of Alternatives

The Allure of Rehab

The Cost of Rehab

The Disease Model

Programs in Prison

Alternatives in Court

The Role of Psychotherapy (and a Look at the Psychopath)

Conclusion: The Decline Is Accelerating

The Case of Jacob Blake

The Current Enforcement Experience

Why Do We Do What We Do?

About the Author

Preface

The Case for Enforcement

Criminal justice reform—this innocuous-sounding phrase is, in reality, a cloak for one of the greatest threats to the internal safety of the United States. I have been in law enforcement for nearly a quarter century as a prosecutor, general counsel for a police agency, and narcotics agent. Throughout that time, I have noticed that many people from many disciplines have a great deal of input on just how to deal with criminals. Whether social scientists, academics, think tanks, committees, legislators, or media pundits, those entities seeking changes to how police and prosecutors deal with criminals almost invariably comprise individuals who have virtually no experience in law enforcement. Police officers and prosecutors do not write letters telling treatment professionals how to conduct their work, but the criminal justice system repeatedly gets unsolicited input from a multitude of sources. To be sure, present-day America is experiencing a growing onslaught of initiatives aimed at drastically changing the enforcement of our criminal laws, all of which only serve to hobble law enforcement.

In a way, the last several years have been maddening. Only a few years ago, these theories would have been overwhelmingly viewed with disdain—considered the dogma of left-wing groups like the American Civil Liberties Union or the National Organization for the Reform of Marijuana Laws. For instance, one absurd but popular theory is that people would steal less if only the penalty were reduced to hardly any penalty at all. Amazingly, what drug and property crime America experienced was actually attributed to the penalties resulting from its commission. My boss, Matt Ballard, District Attorney for the Twelfth District of Oklahoma, keenly and succinctly summarized the theory as follows:

It’s as if there are a bunch of people speeding in my neighborhood, everyone complains about the speeders, and the police keep having to write tickets. Rather than targeting those that break the law, officials target the laws and those enforcing the law. To fix the problem, we just raise the speed limit—sure, less people will speed, but the streets are far from safer.

Having worked in government, it is hard to advocate for its efficiency. As such, I have always been a fan of economists who argue for the limited role of government, such as Frederick Hayek, Milton Friedman, and Thomas Sowell. Other contemporary figures influencing what could be called libertarian ideals are too numerous to mention. Traditionally, those on the so-called left and right view the world very differently—one placing faith in government and the other advocating for governmental restraint, and each having its vocational advocates. But rarely, if ever, have these polar opposite ideologies shared foundational beliefs—until now.

Having spent my entire career in law enforcement, predominantly drug enforcement, I have seen the devastation drugs cause. I have observed firsthand how the assumptions surrounding the narratives of criminal justice reform were far removed from reality. Consequently, I was dismayed at the traction these reform movements were getting due in large part to people who held basic beliefs very similar to my own. In fact, the overwhelming majority of law enforcement professionals believe in limited government, so the fallacies of criminal justice reform were a source of constant frustration—and bewilderment.

Then I was on vacation and bought a copy of Fredrick Hayek’s The Road to Serfdom. I was familiar with Hayek, having viewed decades-old videos of his lectures on YouTube, and I had heard of The Road to Serfdom. Hayek was writing his book to document how much of mid-century Western society was endangering its prosperity by endorsing ideas from socialist ideologies, birthed from intellectuals, that also found favor in the media and entertainment industry. As I read Hayek’s work and considered the political debate currently taking place in the United States, it was as if Hayek were writing his book in 2020—like all great philosophers, his writings appeared timeless. But, as I read The Road to Serfdom, the players, the settings, the methods, all sounded familiar. The debate over economic policy completely mirrored the debate over policing and drug enforcement.

Hayek never mentioned drug legalization, but the most influential libertarian of the twentieth century, Milton Friedman, did. In fact, Friedman advocated for the complete legalization of narcotics, and he was not alone among small-government economic theorists. I was now more perplexed than ever as to how such brilliant individuals could argue for the decriminalization of drugs or other aspects of criminal justice enforcement.

On that vacation, while enjoying a margarita with my wife, I told her of my thoughts regarding Hayek’s work as it related to contemporary criminal justice reform efforts. She encouraged me to write a book, and we agreed I would start it immediately. I will forever be grateful for her constant support in this endeavor from that day forward. It was an anniversary trip—at a cabin in the woods. The surroundings of the forest in the fall provided the perfect setting for me to get up the next morning and begin to outline the contents of the book. And so it began. I began to focus my spare time on studying the evolution of small-government (perhaps libertarian) thought, and the more I read, the more apparent became the reasons small-government advocates should support the enforcement of drug laws and laws against so-called nonviolent crimes.

Ironically, I did not have to counter their positions but merely employ them. In fact, I have learned and continue to learn a great deal from the works of those economic philosophers who argue for a limited government in the interest of individual liberty. While at times I will address an unequivocal statement from one or more of these thinkers and make every effort to dismantle it at the core, I mean no disrespect. These giants of economic policy simply did not have real experience with the drug addict, criminal enterprises, or the habitual offender. To be sure, it is the influence and rationale of the small-government movement that has enabled me to outline just why a libertarian should be ardently in favor of prohibiting the use of narcotics and enforcement efforts aimed at halting the same.

I cite a number of references throughout the book. However, five works that I have read multiple times had a profound intellectual impact on me, and I must acknowledge them separately, while also ardently recommending these books for everyone to read. First, the aforementioned The Road to Serfdom by Frederick Hayek began a revolution in thought and is as brilliant today as it was in the 1940s. Second, On Dope—Drug Enforcement and the First Policeman by Jeffrey B. Stamm is a tremendous historical treatise on the importance of drug enforcement. Third, Tell Your Children the Truth about Marijuana, Mental Illness, and Violence by Alex Berenson brilliantly unpacks the fraud of the medical marijuana movement with the historical record, a slew of academic studies, and contemporary examples, all of which destroy the prevailing cultural narrative surrounding cannabis. Also, The War on Cops by Heather MacDonald is an absolute wrecking ball to the false narratives perpetuated about police. Finally, Intellectuals and Society by Thomas Sowell is a masterpiece that demonstrates the damage the intellectual class has done to Western society in economic policy, race relations, national defense, and the application of the law, and without question, this treatise provides incalculable insight into the negative influence of the intelligentsia on criminal justice reform.

Finally, I must acknowledge my brothers and sisters in law enforcement. It would be an impossible task to include all of those law enforcement professionals who have influenced me, but I am compelled to mention a few. District Attorney Robert Schulte, and his prosecutors, inspired me to become a prosecutor after working for him in law school; the late Lisa Goodspeed influenced me from my first day as a sworn assistant district attorney; Mark Gibson treated me like his younger brother and taught me how to prosecute DUIs and death penalty cases; OBN director Lonnie Wright’s belief in me I will never forget; Scott Rowland is the most intelligent attorney I have ever encountered; OBN director Darrell Weaver allowed me to become a narcotics agent at the Bureau; Travis White’s skill as a drug prosecutor, agency attorney, teacher, and leader cannot be articulated (and I am very lucky Travis is my best friend, as every time we talk, I get smarter); the entirety of the Association of Oklahoma Narcotic Enforcers and its executive board have supported me throughout my career; District Attorney Matt Ballard is a tremendous leader, prosecutor, and friend, as without him, I would not be where I am today; investigator Wayne Stinnett’s counsel and excellence continually propel me forward; and I could not have become who I am today without all of the professional law enforcement associations (especially the leadership thereof) with which I have had the privilege to collaborate and all of the leaders who I can only attempt to emulate, especially Special Agent in Charge Richard Salter. Thanks also to the rest of those law enforcement professionals who have taught me so much—if we have talked, emailed, or texted, I mean you. In the fight to protect the public, I have been privileged to serve with you. The fight has never been more daunting, but I damn sure like my team.

Introduction

Recently, social justice intellectuals on the left and those with a libertarian perspective on the right have been pushing for an odd marriage of criminal justice reform. The misunderstandings and misguided principles as well as the false narratives supporting this effort are the subject of this book. Enforcement as used in this book encompasses several activities—it includes the existence (or nonexistence) of particular laws, the actual enforcement of those laws, and the subsequent prosecution of those offenses.

There has been no greater target of criminal justice reform than the enforcement of narcotics laws. However, decades upon decades of historical evidence has related to the need for the Uniform Controlled Dangerous Substance Act (the basic structure of the federal and state drug laws in the United States) and the importance of enforcing what some describe as low-level offenses. But much more importantly, the disastrous track record of society’s periodic initiatives aimed at restricting the enforcement of these laws is not only compelling but unassailable. The comparison of this history of enforcement to periodic efforts aimed at reducing enforcement, including very recent examples, is a major aim of this book.

Many of the most influential libertarians and conservatives started on the left, or perhaps even as socialists (Hayek, Friedman, and Sowell themselves, along with Ronald Reagan, Charles Krauthammer, Dave Rubin, and Candace Owens, to name only a few). When these thinkers are asked what caused their evolution in belief, the response is almost always that they were persuaded by evidence. It is exactly this allegiance to evidence and reason that should convince any individual as to the need for enforcement of our criminal laws, especially those self-described libertarians and small-government conservatives. In fact, it is my absolute hope—actually, my expectation—that these libertarians and conservatives who arrived at their core beliefs through examining and evaluating facts and evidence will come not only to understand the need for dedicated enforcement of property and drug crimes but ardently to support the same.

Thomas Sowell masterfully differentiates between the practices of intellectuals and the realization of actual wisdom. He describes an intellectual as someone whose occupation deals with ideas, yet who does not have any past experience or current obligation to put the ideas into practice—a policy wonk. In contrast, Sowell says, wisdom is the rarest quality of all—the ability to combine intellect, knowledge, experience, and judgment in a way to produce a coherent understanding.¹ While the ultimate objective of this book is to advocate for public policy, it does so from the perspective of wisdom. This book contains the intellect, knowledge, experience, and judgment required for Sowell’s definition of wisdom.

It is quite understandable how many libertarians came not only to be suspect of enforcing narcotics laws but openly to advocate for the laws’ decriminalization or outright repeal. As such, the following chapters not only examine how libertarians honestly came to question narcotics laws but also illustrate how enforcement of drug laws (and so-called nonviolent offenses) is actually essential to libertarian beliefs and objectives relating to the role of government. To do so, it will be important to discuss exactly why government exists at all—that is, what exactly is the State, what forms does the State take, and what are the possible roles of the State?

If anyone should be suspicious of arguments pushed by social justice advocates in support of criminal justice reform, it should be libertarians and conservatives. In fact, a closer examination of this movement demonstrates not just the well-merited skepticism of the criminal justice reform messengers but also that the messaging techniques those on the left use to promote decriminalizing narcotics laws and other criminal justice reform measures are nearly identical to the methods the intellectual left uses to argue for the expanded and exploded role of government—even socialism. Curiously enough, many of the same factors that continue to account for the growing popularity of socialism have likewise contributed to the growing popularity of criminal justice