When libertarians call for criminal justice reform, they tend to focus on coercion, and why we should want less of it. Left-liberals look to the ways in which the criminal justice system entrenches racial inequality. While I’m sympathetic to both lines of argument, I’ve long felt that conservatives should occupy a distinctive role in the debate. Personal freedom is important. So is the fact that mass incarceration has deleterious consequences not just for the incarcerated, but for their families. But just as conservatives backed punitive policies in the past to combat rising crime, we now ought to back reforms designed to accelerate the decline in violent crime. To achieve this goal, we need to think hard about the legitimacy of our criminal justice system.
Sophisticated proponents of criminal justice reform, like Mark Kleiman, author of When Brute Force Fails, and Stephanos Bibas, author of The Machinery of Criminal Justice, both of whom have contributed to National Review, emphasize the importance of reforming the criminal justice system so that we get bigger reductions in crime per dollar spent, and per unit of punishment. Moreover, both Kleiman and Bibas are sensitive to the question of legitimacy: for policing to be effective, the communities being policed need to feel as though they are being treated fairly. Similarly, if we want ex-offenders to become productive members of society, we need to punish them in ways that strengthen rather than weaken their connections to their families and neighborhoods, and to the law-abiding people in their lives.
More broadly, Kleiman and Bibas remind us that we can approach crime control in ways that deplete the legitimacy of the criminal justice system or in ways that increase it. This is not to say we can only do one or the other. There are times when legitimacy-depleting tactics might be necessary to keep neighborhoods safe. For example, stop, question, and frisk might prove effective at reducing gun violence while also engendering resentment among the people who bear its brunt. Instead of abandoning it, however, we might reform it in legitimacy-enhancing ways, e.g., requiring that officers give those who’ve been stopped “receipts.” (The NYPD has started doing something along these lines, but let’s just say their approach is less than ideal.) But stop, question, and frisk is a marginal issue when compared to the far bigger issue Los Angeles Times reporter Jill Leovy addresses in her new book Ghettoside, and also in a recent Wall Street Journal op-ed. Leovy offers a provocative argument: controversial police tactics like stop, question, and frisk reflect “a law enforcement model in which prevention is everything and vigorous response is an afterthought.” Arrest sweeps are fundamentally less challenging than the kind of detailed, labor-intensive investigation it takes to actually solve crimes, and so a huge share of homicides in violent neighborhoods go unsolved:
From 1988 to 2002, the number of unsolved homicides in the L.A. Police Department’s South Bureau was 41 per square mile. Even as many white neighborhoods remained untouched by killings during this period, some predominately black ones had three unsolved cases per block—seven at the especially violent intersection of South San Pedro and East 84th streets.
Meanwhile, police focused, as they had in the past, on nuisance and vice – the cheap and easy, low-hanging fruit of the trade. As early as 1956, Los Angeles police arrested more than 200,000 people a year for “drunkenness” and municipal code violations – a number that is nearly a tenth of the city’s population. The “broken windows” theory of policing echoes these old paddy-wagon tactics.
The result has been a doubling down on distrust. When violent crimes go unpunished while nonviolent ones get hammered, many conclude that the state seeks control, not justice. Police don’t benefit either: Devoted cops would much rather chase serious offenders. We should let them.
I’m more sympathetic to cracking down on nuisance and vice than Leovy. Yes, arresting people for drunkenness might undermine the legitimacy of the system in the eyes of those arrested, but it also protects public order, which strengthens the system’s legitimacy for those who might otherwise fear harassment or bullying. Yet her broader point — that the failure to solve crimes in violent neighborhoods sows distrust — is a profound one. If we want to increase the legitimacy of the criminal justice system, we ought to start by doing a better job of seeing that justice is done for the families of murder victims, even when the murder victims are less than admirable people. When we talk about criminal justice reform, we ought to talk less about the plight of violent offenders and more about the murderers who get away with their crimes because police forces don’t have the resources to do their jobs, or because they’re crippled by union work rules that get in the way.
And how might we address the resource problem? One idea, from W. David Ball of Santa Clara University School of Law (see Leon Neyfakh’s article on Ball), is to take the funds that currently go to state prisons and hand them over to county governments, which would then be responsible for paying for the people they incarcerate. If they chose to, say, put nonviolent offenders away for shorter stints, they’d be in a position to shift resources to the detectives we rely on to solve crimes. Ball’s approach is radical. There is no question that state prison authorities won’t like it, and the transition willl be tough. But in its respect for local priorities, and its insistence that local officials bear the cost of their decisions, Ball’s approach is also quite conservative.