NRPLUS MEMBER ARTICLE M innesota prosecutors have filed second-degree murder and aiding-and-abetting charges against the police officers who participated in the killing of George Floyd last month. While nationwide protests have sometimes descended into violence and looting, they have also successfully increased the pressure for policing reforms. Liberals have put forward a package of modest changes, giving conservatives the opportunity to propose a truly radical program to address our failing inner cities.
Under the Constitution, the primary responsibility for criminal-law enforcement lies with the states, not the federal government. Maintaining law and order and protecting public health and safety fall squarely within the “police powers” reserved to the states under the Tenth Amendment. While the federal government plays a significant role in regulating interstate crime and sending money and support to states, the Constitution gives Washington, D.C., no explicit power to handle garden-variety crime.
Nevertheless, Democrats in Congress are drafting legislation to address police violence. They plan to ban certain police procedures, such as chokeholds and no-knock warrants, and require body cameras, a national database of officers and complaints, and even nationwide police training standards. “The martyrdom of George Floyd gave the American experience a moment of national anguish as we grieve for the black Americans killed by police brutality today,” Speaker Nancy Pelosi said, adding that the moment “is being transformed into a movement of national action.”
None of these reforms truly addresses the Floyd killing, and many of the proposals circulated are repackaged and stale ideas from well before. Progressives reveal their actual agenda with their proposals to beef up spending on existing social programs. “Biden supports the urgent need for reform — including funding for public schools, summer programs, and mental health and substance abuse treatment separate from funding for policing — so that officers can focus on the job of policing,” a campaign spokesman said.
This spend-first, assess-later approach will only repeat the mistakes in social policy from the time of the Great Society. According to some estimates, the federal government has poured anywhere from $15 trillion to $22 trillion into these welfare programs. Meanwhile, problems in the cities have not improved or have even gotten worse. Our urban K–12 public schools are a disgrace, homelessness runs rampant, and a permanent underclass has developed that cannot escape the inner cities. Academic studies show that while the Great Society programs have transferred trillions of dollars of income to alleviate poverty, they may have also actually harmed communities by creating incentives against family formation, work, and personal responsibility.
Liberals at the state and local levels are pursuing changes that will do even worse than those of the Great Society. Minneapolis, home to the Floyd killing and some of the worst riots, has voted to eliminate its own police department. “Defund the Police” has become a rallying cry at protests in many of the nation’s largest cities where, it must be said, liberals have enjoyed political dominance for a half century. Several left-wing mayors and city councils, such as in Los Angeles and San Francisco, have voted to transfer hundreds of millions of dollars from police budgets to social programs.
We could not imagine changes that would produce worse unintended consequences than shutting down or severely cutting back police departments. One of the few success stories in our cities has been the stunning drop in crime. After hitting a high of about 2,605 in 1990, murder in New York City has fallen in absolute numbers — 562 in 2018 — to levels not seen since 1960. Improving neighborhood safety and protecting business development in working-class communities is critically important to improving the quality of life for minorities and the poor.
Rather than tear down our law-enforcement operations across the nation, there are several constructive solutions that, if adopted, will help keep our communities safer and strengthen public support (especially in the inner city) for policing generally.
More Support, Not Less
Instead of “Defunding the Police,” conservatives should push to increase police budgets. Reducing the financial support of our nation’s police departments is a recipe for elevated crime and lack of safety in our communities, particularly those of minorities and the working class. Take New York City, for instance. More than 80 percent of its police department operations budget is personnel-related. In NYC, the proposed budget cut of $1 billion would translate to 3,000 fewer officers and a reduction in overtime-pay authorization — meaning fewer officers available around the clock.
Even though we continue overall with historic low levels of crime nationally, there are pockets in our country where crime is rising dramatically. Murders, robberies, and assaults in cities such as Baltimore, Chicago, and NYC have spiked and should be stopped in their tracks before we see a return to the crime levels of the ’60s and ’70s. Washington should offer more grants to target high-crime areas, and local communities that experience elevated levels of crime should redirect their budgets to the same activities.
Police Officers Shouldn’t Be Tax Collectors for the Welfare State
Conservatives should advocate for a restoration of traditional law-enforcement roles for peace officers. Too often our police departments act as the tax man. During the last recession, state and local government embarked on an ill-fated strategy to increase the number and amount of fines and fees imposed on our citizens for everything from minor traffic infractions to municipal-code violations. While this may have staved off the need to adopt higher sales and property taxes, this action has generated a significant level of animus against law enforcement by minorities and the working class (groups that typically bear the brunt of these fines and fees). Tax collection is never popular, and police in particular shouldn’t be saddled with this duty.
Revenue raising should be returned to the state- and local-government bureaucrats, freeing officers to stay focused on traditional crime fighting — activities that all Americans can support. Also, we’ve stretched out police departments far too much by turning them into all-purpose regulation authorities even when fines aren’t assessed. Police now enforce smoking bans, stop kids’ unlicensed lemonade stands, regulate over-consumption of sugary beverages, and attend to a host of other violations. Not only do these responsibilities distract from their more important duties, they increase the likelihood that minor infractions can escalate into major altercations.
Unions Should Represent the Interests of Great Officers, Not Cover Up for Bad Ones
There may be left–right support for reform with regard to union representation by law enforcement. There is some truth to the claim that police unions have protected officers such as Derek Chauvin, Floyd’s killer, from punishment for misconduct. The Left’s critiques of police unions mirror those by conservatives against teachers’ unions. Both unions exist to protect the employment of their members, rather than serve the public good. Taxpayer resources in our inner cities have been overextended as competition among police, fire, social-service, prison guard, and education unions seek the best financial terms and employment protections for their members. Too many cities — and even states — have financial obligations that extend well beyond their capacity to honor, all because public-sector unions have managed to pile on more and more obligations over the past few decades.
When police unions aid their members in drafting use-of-force reports to place fault unfairly on suspects or to minimize their own members’ failure to follow procedures, it makes it difficult for local communities to improve the performance of their police forces.
Moreover, police departments today often must undergo an arduous negotiation process in order to put into place meaningful changes in their departments. States should change their labor laws to limit the ability of unions to interfere with the changes that police departments need to make to be as responsive as possible to their local communities. Secondly, unions should be limited in their ability to “coach” their members to avoid accountability when “incidents” do occur.
Better Officers, Not Fewer
Police departments should undertake a renewed effort for excellence in law enforcement. This means they should increase the requirements for new recruits and work to improve the professionalism of their existing workforce. Instead of affirmative-action hiring and promotion, standards for being in law enforcement should be made tougher and should focus on getting the best individuals regardless of color or creed.
Furthermore, the use of body cameras should be expanded. They provide increased transparency, make investigations easier, and help the entire community gain greater trust in law enforcement. Officers should also be discouraged from interfering or even arresting passersby who videotape them while carrying out their responsibilities. If conservatives are open to the expanded use of body cameras, liberals should accept a broader use of CCTV in public spaces, roads, and businesses to provide for more effective crime deterrence and detection.
Prevention, Not Correction
All too often, law-enforcement officers are tasked with handling responsibilities that society broadly has failed to address. Illiteracy, unemployment, homelessness, and mental illness present frequently as crimes of violence.
Rather than waiting for law enforcement to resolve these issues, we should proactively adopt policies that will minimize the need for police involvement. However, unlike the strategy of the past 50 years of spending first, and assessing later, we should look at time-tested approaches — faith, free markets, and community responsibility — to aid us in our efforts. Our inner cities have trapped their residents in failing schools and corrupt government for far too long. Rather than repeat the failed Great Society programs, conservatives could propose solutions to inner-city problems that depend on greater decentralization and weaker, not more powerful, government. Allowing residents to choose their service providers and forcing governments to compete will increase individual liberty and effectiveness in public programs.
Building on existing Opportunity Zones, Washington and the states should focus like a laser on promoting education and job skills. More charter schools and school choice should come to our inner cities. Government should re-invite religious organizations back into these communities to offer educational assistance, too. Washington should consider allowing tax credits for any American who would sponsor high-school or college tuition for inner-city residents. Inner-city public schools enjoy a monopoly on education, and as we would predict, the lack of competition has produced a fall in quality and instead a focus on profits — here excessive spending for teachers’ unions.
Alexis de Tocqueville first observed that the United States differed from Europe in its reliance on private groups, such as civil associations and churches, rather than the government, to address social problems. We would do well to allow these groups to flourish again in the inner cities. Faith-based organizations can offer mental-health and drug treatment. Groups such as Teen Challenge, along with other churches, mosques, and synagogues, should be re-invited to promote family formation, civic virtue, and the importance of other voluntary associations within our distressed communities.
Decentralizing city government can also help resuscitate work and jobs in our inner cities. Conservatives should call for regulation-free zones that waive occupational licensing, minimum-wage rules, and restrictions on the gig economy. We could start with suspending minimum-wage laws, which studies show reduce starting jobs for teenagers and minorities. Also, we should adopt the “No Taxation Till the End of Education Act,” which exempts youths 22 and under in those same jurisdictions from having to pay FICA (Federal Insurance Contributions Act) while they are in school. This would boost take-home pay and simultaneously make inner-city residents attractive to employ. Also, we should waive the Davis-Bacon Act’s requirement that federal programs only pay high union wages as part of any new infrastructure initiative, to ensure that small businesses in the inner city have a chance to compete for federal and state contracts.
Ultimately the discussion about law enforcement is an important one, as is the role that police officers play in our society. Refocusing law enforcement so that it can play its critical role more effectively, while bolstering the foundations of our communities, will help make our inner cities not just safer, but also places of opportunity and hope.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.