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A few serious thoughts about law and order — for conservatives

Donald Trump has sought to inject the theme of “law and order” into the 2016 campaign. He appears to hope that creating a sense of fear about crime will do for him what it did for Richard Nixon in 1968, but it flies in the face of the facts: While a handful of places have become measurably more violent in recent years (Chicago is probably the most prominent example), the nation’s overall rate of violent crime is lower than it was in Nixon’s era.

Crime rates have fallen over the past five years, and despite year-to-year fluctuations, there is really no evidence at all to support a renewed fear of crime. Some stories certainly have become more prominent because they are easy to share via social media, and specific crimes like the murder of police officers in Dallas have been put in the spotlight. These circumstances may be elevating the perception that crime is rampant — but the facts do not support that conclusion.

Economic prosperity, healthy civic institutions, and a widespread respect for the law (and for the rights of others) all contribute to safer streets and a lower rate of crime — but they don’t have the same gut-level emotional appeal as promises to “get tough on crime”. That’s too bad, because our focus really ought to be on those conditions that create a foundation for a peaceful, law-abiding nation.

We must look to those systemic factors if we really want public security. A focus on locking up criminals is too little, too late. It is much better to keep people out of trouble in the first place, and to rehabilitate as many as possible of those who end up inside the criminal justice system so that they don’t come back. Repeat offenders should be taken as a symptom of a malfunctioning system: Anyone who commits a serious crime after spending time in prison for a previous crime is a deadweight cost to taxpayers — and a threat to the public that failed to “correct” their behavior the first time through the system.

Unfortunately, though, the major-party candidates in 2016 are terrible messengers for a safer, more law-abiding society. Hillary Clinton has too often behaved as though she is above the law, while Donald Trump’s words suggest he doesn’t fully understand that the law exists. (See, for instance, his absurd claims about “loosening” libel laws, his enthusiasm for bankruptcy filings as a “tool” for conducting business, or his casual and careless incitements to violence when speaking in front of large crowds. He fails to show the common respect for the law that we expect from any other reasonable adult, and he does it on a massive scale.)

While Clinton seems to be perpetually shrouded in a fog of suspicious behavior, Trump plainly cannot be taken seriously as a law-abiding citizen, much less as the individual responsible at the highest level for carrying out the law.

Donald Trump cannot be excused for his willful ignorance of the law and cannot be trusted to enforce it. This is the man who has joked that his popularity makes him untouchable (“I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters”), thinks that the First Amendment should take a back seat to his own interests (“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money”), and made an off-color remark about assassination (“If she gets to pick her judges, nothing you can do, folks…Although the Second Amendment people — maybe there is, I don’t know”). These aren’t mere accidents or slips of the tongue: They reveal his total absence of respect for the rule of law.

Their shortcomings in this important regard only serve to elevate the importance of injecting reasonable people into the debate — literally, on the stage at the debates, and ultimately (if possible) on election day itself. In the modern era, we have treated the President as the legislator-in-chief. But a plain reading of the Constitution should be all the reminder any of us should need that the President of the United States is responsible for executing the laws that are passed by Congress. Article I establishes the legislative branch; Article II establishes the executive. The former initiates the laws, and the latter puts them into force.

Or, to take the words from the Constitution itself: The President “shall take Care that the Laws be faithfully executed. This is not a voluntary condition of the job. It is an explicit duty of the office.

If you want to see a duty like this conducted well, then you should look first to those who have experience doing the same type of job. The people best-suited to execute the law on a national scale are those who have had similar experience on the second-largest scale: State governors. The experience itself is indispensable, but it also tends to help temper their enthusiasm for the power of the government to do more than it should. People with experience as governors gain first-hand experience in the consequences of bad laws, badly-chosen administrators of the law, and the unintended consequences that follow from the law. To govern, in short, ought to be an exercise in humility about just how much to expect from the law.

Taking a look at our crime statistics with a dose of humility gives one an appreciation for the fact we, as a country, are doing something wrong.

Our country currently has a prison population of 2.2 million people, according to the US Department of Justice Bureau of Justice Statistics. That makes our prison population the size of San Francisco, Milwaukee, and Nashville, combined (the Census Bureau reports population estimates for 2015 of 864,816 for San Francisco, 682,545 for Denver, and 654,610 for Nashville). Another 4.7 million Americans are on parole or probation.

If you think that that is a useful and productive way for us to put our people to work, then there’s really not much more to be gained from reading this chapter.

But if you are willing to step back and objectively view the big picture, the concept of having nearly 7 million Americans actively under the watch of the correctional system looks like a giant waste of human productivity and potential.

Only a fraction of those people are truly sociopathic and really need to be warehoused in order to keep the rest of us safe. If the psychologists are right, no more than about one out of every 100 people is wired to be truly anti-social. (This is hard to track precisely for many reasons, but a figure of about 1 in 100 seems to be widely accepted. The National Institute of Mental Health reported in 2007 that it was found to be 0.6%.)

The remainder should otherwise be considered normal people who made bad decisions, and are best treated with rehabilitation and reform rather than permanent imprisonment. It’s bad enough that people commit crimes; we make the situation far worse for ourselves if we don’t take steps to make sure most of them leave the justice system as better people than when they entered. Imprisonment has far-reaching consequences for families and other innocent parties, too. We need to do something to reform our criminal agenda.

One of the most important factors involved is nonviolent drug crime. The people who are caught up in our prison system as a result of nonviolent drug offenses are people who require treatment and attention, generally in a non-prison setting. Let’s reserve our limited prison capacity for protecting other people who need protection from the true sociopaths among us. For the rest, reform and rehabilitation is a far more sensible option.

If you instinctively object to anything about the Libertarian Party platform, it is probably the party’s position on drug legalization. But, putting aside whether any drugs ought to be legalized or decriminalized, there is no sensible defense of the huge amount of cost involved with imprisoning millions of people.

There is a clear explicit cost to imprisonment; it’s estimated at about $30,000 to $31,000 a year for inmates in the Federal prison system.

There is also the tremendous implicit toll that mass incarceration takes on our economy and our communities. Like it or not, when going to prison becomes a normalized behavior, then the rough edges that come with it all become part of a package deal. Those rough edges can become serious: Radicalization, gang membership, recidivism. When we as a society become careless about how we deal with criminals, we pay the consequences later on.

That adds up to a terrible use of our tax dollars and an inexcusable waste of our nation’s human capital. Free people should make free choices and suffer the consequences of their actions. As a civilization, we should set only as many rules as we actually need to keep ourselves safe, then we need to enforce those rules fairly and equitably, do our best to actually correct the behavior of people who make bad decisions (it’s not really a “correctional” system if we’re not seriously trying to reform most of our convicts), and keep the truly sociopathic criminals far away from innocent people whom they could harm. It hurts our case if we criminalize too many behaviors.

Contrary to what has been said on the stump, real advocates for law and order should reject a man who openly calls for vigilantism, who threatens unconstitutional actions and behavior, and who would undoubtedly behave in a way that would make Richard Nixon blush if given control of institutions like the FBI.

We have seen enough misbehavior already with the IRS appearing to target conservative groups for special scrutiny. We will not do any good to restore the rule of law if we put those same powers in the hands of an individual who openly celebrates the use of strong-arm tactics, as Trump does.

It may seem paradoxical, but the real advocates for law and order in 2016 are Gary Johnson and William Weld. They have earned credibility as the chief executives of two different states, each for two full terms. They are not proposing any outlandish or extreme new responsibilities or endeavors for the law-enforcement system. What they have advocated is intended as a means to take some pressure off of our overwhelmed prison system, by decriminalizing at the Federal level some behavior that is already widely decriminalized by individual states.

Perhaps above all, neither of them has been dogged by ethics complaints or investigations, and neither has earned any kind of reputation for being on the wrong side of the law. If you want law and order, your best bet is with Johnson and Weld.

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This is a chapter excerpted from my book “The Honorable Alternative: A Conservative Case for Johnson/Weld in 2016”, available on Amazon.

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