Law & the Courts

End the Violence

Protestors at a Patriots Day Free Speech Rally in Berkeley, California (Reuters: Stephen Lam)
Those who break the law at protests should do jail time.

Andy McCarthy has written an estimable column outlining the legal aspects of federal “domestic terrorism” laws. One of Andy’s points is that acts of violence in the context of protests are overwhelmingly state rather than federal crimes; another is that state officials’ response to the violence so far has been largely rhetorical. What’s worse, for the most part, is that the rhetoric has merely made use of the violence to make political points.

He’s right. I’ll go further and say that words, no matter how strong, are no longer enough, if they ever were, to stop this growing trend. What is needed is action, both legislative and executive, from state authorities.

I wrote about this several months ago in the context of violence on campus. Now the problem is spreading to city parks and neighborhoods. What needs to happen, broadly, is this:

First, state laws must single out violence and disorderly conduct in the context of mass expression for special and certain punishment, and the punishment must be meaningful to the kind of people who do this sort of thing. That means jail time. If existing laws are not strong enough to do the job, state legislatures should make them stronger, and everyone should know that the laws have been strengthened.

The problem has grown so great that nothing less than incarceration will be sufficient to stop it. The message must be that if you are involved in a protest and you break the law, you will go to jail, and not just overnight. You will cool your heels in the county jail for a minimum of a month or two until you learn to respect the rights of other people.

That principle must apply to any kind of violence or disorder. Even crimes that in other contexts would appear minor, such as blocking access to a street or building, must result in real jail time. The whole point is to nip unlawful conduct in the bud before it blossoms into violence against people or destruction of property.

It doesn’t matter where the offenders are on the political spectrum or what they are protesting. It’s not up to them to decide whether their ends justify violent or criminal means. It’s up to the rest of us, through the responsible public officials, to insist they keep their conduct lawful and peaceful.

Second, the laws must be strictly enforced. This is where governors must be strong leaders.

Too many mayors have been lenient for fear that they will suffer political consequences if they enforce the law against members of politically favored groups. Given what I’ve seen from our current crop of mayors, I don’t expect that to change.

Governors represent a larger constituency, the vast majority of which is weary of people who deliberately stir up violence and disorder. Further, cities are political subdivisions of the states; states are ultimately responsible for how the cities are governed, and as far as I know, all the state constitutions give their governors full authority to preserve civil order when local officials won’t.

So governors must thoroughly prepare their responses before the crises come and must act decisively when the crises happen. I wrote about the steps that should be taken in the context of violence on campus, but the same principles apply here:

[Governors] should make it a personal priority to: ensure that state law enforcement personnel are properly trained and equipped; prepare a bipartisan list of competent and fair special prosecutors who can be swiftly appointed should the need arise; establish close connections with their college administrators and local authorities; and — when they see trouble brewing at one of their universities — publicly warn that speech will be protected and violence will be punished.

I’ll add only that states should spend whatever is necessary to make sure they have large numbers of well-trained and -equipped personnel ready, whether from the state police or their National Guards.

One advantage of this approach is that it will identify and neutralize the loose bands of anarchists and other troublemakers who are roving around the country causing this violence. McCarthy is right that we should be concerned, from a constitutional standpoint, about excessive federal involvement in monitoring or infiltrating these groups. But that isn’t necessary. Once state authorities arrest and incarcerate these individuals, their names, faces, and fingerprints will be on the books, and subsequent violations can and should be punished more harshly, including with felony imprisonment when warranted.

If these officials can’t take action on an issue as basic as this, they should resign.

This is an ugly problem, and there are political risks in taking the steps I have outlined. As a former politician myself, I understand the reluctance of state authorities to take them; it’s much easier for such officials to do nothing, hoping that the violence won’t come to their jurisdictions or that if it does they can blame someone else when innocent people are hurt.

But if these officials can’t take action on an issue as basic as this, they should resign. They wanted their jobs; their names are on the relevant doors, and they enjoy the privileges of office that the voters have given them.

The list of things government does not know how to do is very long, but it does not include policing large groups to ensure they remain peaceful. Preventing a crowd from becoming a mob is not easy, but it is simple: The responsible authorities must be fully prepared to move in, arrest, and punish criminals — all the criminals — the moment they cross the line into violent or otherwise unlawful conduct, and to do so without regard for fear, favor, or politics.

I think the country, on all sides of our many divides, is waiting for a governor who has the strength of character to act. Fifty years ago, in California, there was a leader who knew his duty and did it.

As I recall, it didn’t hurt his political career.


    The Roots of Left Wing Violence

    Antifa & The Alt-Right

    Police Need to Stop Political Violence

— Jim Talent is a former U.S. senator for Missouri. He is a senior fellow at the Bipartisan Policy Center.

Jim Talent — Jim Talent is a former U.S. senator for Missouri and a senior fellow at the Bipartisan Policy Center.

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