The Conservative Obsession With Law and Order
On the destructive legacy of the conservative-led War on Crime and War on Drugs in Black America.
Put an American citizen to work in one of the many federal alphabet soup agencies — EPA, FDA, and so on — and he will be heaped with scorn by conservatives. They will see him as representative of the intrusive nanny state, a trampler of rights with unchecked power, subject to no accountability.
Now give that same citizen a police badge and a firearm, give him the legal right and sometimes duty to forcibly enter homes, destroy property, and use physical and even lethal force to do his job, and suddenly you will hear nothing but loud applause from the right. Go deep into the heart of Red America and you’ll find that the response to any incident arising between a citizen and an officer will inexorably be #BackTheBlue — the only time they ever show enthusiasm about going from one color to the other.
Where are the calls for police accountability? What happened to all the suspicion of government power? Is there something about the badge that makes its bearer a saint entitled to immunity and unlimited benefit of the doubt? How can we explain this strange reversal of principles?
Observers from the left and within minority communities will say that the answer is obvious: race.
While I agree this is an important factor, I think the issue goes even deeper, cutting to the core of an important conflict between conservatism and democracy (yes, people on the left have their own issues, but this is an article about ours).
What Does “Law and Order” Even Mean to a Conservative?
Most conservative thinkers — democratic and not, modern and ancient — support order above all else. They tend to be suspicious of radical changes or perhaps any change at all, with many even against going to war in order to avoid the upheavals it causes. Included in this desire for order is the desire for societal order, in which people obey proper authority and keep the peace.
Obviously, there are universal and race-neutral arguments for the establishment of laws and societal order. Psychopaths aside, no one of any race, gender, or social group wants to live in a world where dangerous people walk around, freely preying on others with impunity, or in which there are not understandable and reasonable “rules of engagement” among members of a given society. There’s a reason why every single society has found it necessary to establish rules, the Joker’s disdain for them notwithstanding.
But the conservative desire for law and order, if not held in check, is capable of descending into dangerous territory. For those of us who accept democracy and equal citizenship as axiomatic, an obsession with law and order leads us astray in two ways.
The first is toward an embrace of non-democratic models of societal order. Law and order are not intrinsically democratic; a state’s law and order institutions may be illiberal, and in fact may even give the appearance of effectiveness under such designs. Plenty of tyrannical and authoritarian societies have excelled at maintaining order — some are even the focus of the populist right’s envy. Joseph Stalin was a monster, but he knew how to keep his people in line. Feudal societies also kept the masses in check, the occasional peasant revolt notwithstanding. The same is true of many right-wing authoritarian regimes. The temptation to ensure raw order and skip the “justice” part of law, so critical to democracies, is a core part of the problems we face today, as I will explain below.
The second weakness is that for many conservatives throughout the ages, the importance of maintaining social order was often more important than equal enforcement of the law and seeking justice. What mattered more than anything was keeping “that sort” in line.
“That sort” is a group which varies in time and place. It might have been peasants or workers in an earlier age, foreign immigrants in another, or “agitators” in yet another. In the United States of America, more often than not, “that sort” meant Black Americans, especially after they were formally made full citizens in the post-bellum era. One need only spend a bit of time reading on Jim Crow in the United States to see how law enforcement agencies at all levels were far more concerned with keeping Black Americans “in their place” than fairly enforcing the law to the benefit of all citizens.
The Post-1965 Meltdown
In theory, all this should have changed in the wake of the Civil Rights revolution of the 1960s. That it did not requires us on the right to face some hard truths. Conservatives often rail repeatedly, often with merit, about how Lyndon Johnson’s War on Poverty helped to weaken the already-fragile Black American family and community structure to the point of collapse. Government “help,” they will say, is what destroyed Black America.
But that’s only half the story. The other half is the War on Crime and the War on Drugs, both of which were driven front and center by conservatives, especially Presidents Nixon and Reagan.
Yes, Democrats were in an arms race with Republicans on both, and often complained that the right was being too “soft.” Yes, black community leaders and politicians were often and understandably on board with many crime fighting efforts. Yes, neither president invented the problem of the crime wave of the second half of the 20th century, a wave whose causes still divide scholars and experts.
But in the end, Nixon and Reagan were the driving force behind these crusades, using every opportunity to publicly espouse an ever-tougher approach on crime and drugs. Current U.S. Attorney General Jeff Sessions may indeed be a throwback and an anachronism in a party increasingly in favor of at least moderate reform. But if we’re going to be brutally honest with ourselves, he is a throwback to the Gipper himself.
If we’re going to demand that people on the left concede the unintended negative consequences of big government programs for Black America, then we’re going to need to do the same for the destruction caused to them by the explosion in incarceration and over-enforcement encouraged on the right. Intellectual honesty and basic fairness demands no less.
The Two Conservative Weaknesses and the Crime Wave
The reaction to the crime wave exposed the two weaknesses I spoke of earlier in full.
The first weakness, the desire for order — to “do something” in a time of increasing violence and social unrest — meant that Americans steadily assented to the insidious idea that criminals, even merely suspected criminals, effectively have no civil rights at all. On this view, people who break the law are not only subject to punishment but have effectively forfeited their right to be treated as human beings.
As amply documented by crime reporter Radley Balko in his book The Rise of the Warrior Cop, a terrified America gave the police carte blanche to do whatever it wanted — arm itself to the teeth, violate even the most basic understanding of the constitution’s fourth amendment protection of house and home, violent and unnecessary strong-arming of suspects and family members — as long as they made people feel safer.
The same is no less true about the War on Drugs. The hatred and paranoia about marijuana and other narcotics was so great that politicians openly spoke of how all drug dealers should be executed without trial. In their more unguarded moments, they said the same of drug users. Enormous amounts of money are spent every year by federal and state governments to find and seize drugs. In the name of nabbing pot, police effectively do not even need a warrant. In the name of fighting the scourge of drugs, the Reagan administration and the Bush (41) administrations pushed asset forfeiture. Draconian mandatory minimums for any sort of drug related crime filled the jails with non-violent offenders.
The second weakness has to do with the disproportionate effect of all this on Black Americans.
The usual and immediate response to that claim is to throw around statistics on “black crime.” Nowadays, of course, the term “Black on Black crime” is supposed to insulate one from perceived racism. The statistics are being cited out of concern for Black Americans, don’t you see? What happens when stridently punitive law and order mechanisms aren’t implemented? “Chicago” and “Baltimore,” we’re told. These are attempts to end the discussion and mark anyone opposing “tough on crime” policies as being as detached as the stereotypical Berkeley professor in the first Dirty Harry movie, talking about the civil rights of an obviously evil and malevolent serial killer.
This is precisely the poison which has been pumped into the American bloodstream since the 1960s and during the crime wave. The idea that blacks — more specifically black men — are synonymous with “animals,” or “thugs,” or what-have-you helps fuel both weaknesses and explains why many people who listen to defense attorney T. Greg Doucette’s podcast or follow him on Twitter simply refuse to listen to the legion of stories of police abuse and misconduct he discusses. For them, Black Americans are simply wild animals and the “facts” back them up and if you dare touch the police, it’s back to the Bad Old Days.
I answer this assertion in three ways.
First, crime of all kinds has been down since the mid-1990s. Check the uniform crime report of the FBI in any state you like — including places with a significant Black American population such as Washington, D.C., Illinois (Chicago!), Georgia, and so on — and you will see that all kinds of crime instances have dropped, in many cases to pre-crime-wave levels. Even all the hysteria about a “rise in crime” in some places is relative to the lows we have been enjoying.
Second, blacks live in other places aside from Chicago and Baltimore (and even Chicago has its rougher spots and brighter spots). There are plenty of communities that look and feel nothing like the hellholes depicted in the old 1970s and 1980s films about crime. “Black America is all Chicago” has been a favorite trope of the right, long before Trump, but it is simply false.
Third, and most importantly, is that this attitude is fundamentally unjust. Disproportionately higher crime among black men in no way, shape, or form justifies the stereotype of black men as inherently violent monsters. All it means is that there are relatively more black men committing crimes compared to their proportion of the population. That’s it. It does not justify the idea that black men, by default and without any other evidence, are to be considered dangerous.
Conservatives rightly damn radical feminist efforts to condemn all men for being sexual predators or violent criminals because a “disproportionate number” of criminals in these categories are men; even if we accepted all the crime numbers thrown around en bloc — and many of them are of dubious provenance — the same approach should hold true of black men.
Cops!
Now imagine your average police officer in all this. He grows up in a society drunk on these two concepts: that criminals have no rights and that black men are criminals unless proven otherwise. He is told he’s a warrior and is constantly being inundated with memes and scary statistics that make his job sound as dangerous as that of a Red Army soldier crossing the Volga in September 1942 — actual numbers and causes of police deaths notwithstanding.
While I’ve no doubt that there exist quite a few racist and abusive cops, the average cop does not need to be personally bigoted in the vein of Richard Spencer to treat black men as potential enemies in a war. When you’re constantly being told that every traffic stop might be your last, you’re going to be trigger happy. When you see yourself as a civilizing force; when it is constantly impressed upon you how you represent “the last line of defense of civilization,” presumably against violent barbarians, your conduct will be appropriately violent and swift.
And even setting that aside — going after minorities is just easier. They are generally poorer, less likely to sue, more likely (paradoxically, given the fear of all minorities and especially Black Americans) to comply. All the incentives of racking up arrests, tickets, and assorted commendations encourage being “tough” on people on the lower rungs of society rather than being fair or even smart.
This is the key thing: People who point to racism as a driver of the problems between Black Americans and police miss the broader problem. Even if racism a la white supremacy disappeared entirely, the ostensibly “objective” attitude about black criminality and the incentive structure for police and law enforcement would continue to drive unfair treatment of minorities. Big government doesn’t just end up with bad incentives when it’s leftist.
A Conservative Problem — Our Problem
Contrary to a common stereotype, this is about a lot more than the clash between conservative desire for law and order and democratic rights, vitally important as that is. The insistence and blind faith in “law and order” as I’ve just described harms specifically conservative principles and goals, and more specifically is a case of our gut instinct outweighing rational thought — a charge we often lay at the feet of the other camp.
What conservative principles does all this undermine?
Let’s start with authority. All conservative systems support the idea of legitimate authority and its rightful function, depending on the system of government. In a democracy, the role of the law enforcement official is to serve as the symbol of the rule of the people and equality before the law. Unlike men-at-arms in the service of the noble or officials of emperors, the law enforcement official is supposed to serve the people.
But that requires genuinely seeing all citizens as such — rights and all, even when they break laws. Not because the official is naïve or believes in letting dangerous people go, but because his authority itself is vested in the idea of equal and irrevocable citizenship except in the most extreme of circumstances. If he is trained to see any portion of the citizenry as “the enemy” — let alone all of the citizenry — then he is betraying his authority and violating the reason he has a badge in the first place. Before we even get to the harm he does to minorities, a police officer who accepts such a badly warped understanding of his job and the people he is supposed to serve does himself moral harm, creating enemies where there are (or were) none and disrespecting his office.
The second is professionalism. I often disagree with the man known only as Angry Staff Officer, but I agree with him that history has shown that the professional is superior to the warrior. This ties into another conservative idea — the idea that everyone should be the best person they can be. Unlike many on the left, we don’t believe everyone can be whatever they want, but we do believe that everyone can be the best person it is possible for them to be, and there is a reason professionals wiped the floor with warriors in the modern era.
The warrior cares nothing for his death and even wills it, even if his death is foolhardy. The professional looks for ways to win without it. The warrior cop expects every interaction with civilians to be a fight to the death, and mentally prepares and trains for such an event, perhaps enthusiastically so. The professional trains for and thinks of every possible way to avoid having to take the gun from the holster. He does so not because he thinks that danger does not exist, but because he is the person of authority, the trained pro, who can and should know how to outsmart dangerous people or rowdy civilians without needing to kill. Indeed, such skills should be a matter of pride to him, as much as the kill count is for the warrior.
The third is community. Conservatives support the existence and flourishing of communities, and the healthier the community, the better. One of the reasons many well-intentioned conservatives supported going hard on law and order was because high crime in black neighborhoods really did mean hell for many of its residents and the breakdown of communities.
But the present way in which police officers go about fighting crime is often doing more harm than good. The constant hunt for pot and easy fines involves resources and manpower which could be spent finding and locking up murderers and rapists (or investing in improving the community in non-law enforcement ways). As Balko describes, raid after raid and video after video is making more and more law-abiding black citizens distrustful of an authority they should have faith in for times of real emergency.
Many Black American communities are weak enough in social and economic capital as it is. Constant levying of fines, cash bail, and arrest records for people who are not dangerous is not going to help anyone lift themselves up. The constant use of SWAT for anything and everything is not likely to help citizens increase their integration. More likely, they become like the sullen and risk-avoidant residents of territory under military occupation.
The police need to stop being, in the words of Steve Hays, “armed revenue collectors.”
It’s become a circular, incestuous dynamic: police exist to collect revenue, and revenue exists to hire more police. …
A cynical though not unjustified conclusion is that the police don’t ultimately exist to protect the public, but to keep revenue flowing into the city coffers by ticketing as many citizens for as many infractions as possible.
Observational evidence tells us we have more police than ever. And there seems to be an internal logic to police expansion: to fund an ever growing municipal government, you need an ever larger police force to collect supplemental revenue. Indeed, I think there’s an informal ticket quota, although the police won’t officially cop to it.
This inevitably raises the number of unpleasant encounters and altercations between police and citizens. And the interactions are not borne out of some concern over public safety; rather, they involve fining people for purely technical infractions that exist, not to protect the public, but to generate municipal revenue.
And by raising the odds of gratuitous altercations, you raise the odds of situations that end badly. It’s a vicious cycle with predictable consequences.
I’m not saying the police never save lives. But much of what they do is not about that. We’ve developed a hovering, predatory police presence. Police on the prowl for opportunities to rake in revenue. Casing the neighborhood to pounce on somebody for some technical violation that carries a fine.
Instead of going after threatening people, all too often the police are themselves threatening people who engage in perfectly innocuous behavior (see, for example, the death of Eric Garner). The danger isn’t coming from the general public but the squad car. On the lookout to make a buck for city hall.
Changing Minds, Changing Policy
What’s my answer to all this?
There are many policy solutions to specific problems. End the War on Drugs entirely. Support Campaign Zero. End or seriously restrict qualified immunity for police officers. Start repealing bad laws wholesale. Use better psychological screening for cops and reward those who are fair and avoid violent altercations when possible with promotions and money. Stop using fines and asset forfeiture as a backdoor for revenue; this isn’t the Middle Ages and funding the government on the backs of the poor — be they peasant or racial minority — is fundamentally unjust.
But the most important change we must all undergo is one of mindset. Without a change in attitude among the population, nothing serious will get done. This is on us conservatives — no-one will listen to criticism from people on the left, like it or not. But if we on the right start explaining how Chicago is not the whole story, that being smart on crime is far better than merely being tough on crime, and if we explain that all this serves fundamentally conservative ends, we might just be able to make a difference in public minds — and in a democracy, that’s a crucial component for change.
And what of the economic capital problem I mentioned among Black communities? Does that mean reparations and if so, how? More on that in the next essay.
This is the second entry in Avi Woolf’s ongoing series about conservative approaches to America’s racial challenges.
Read the first entry here:
