Demonizing #BlackLivesMatter: The Latest Challenge to Criminal Justice Reform

Posted in: Criminal Law

For the past several years, the catch phrase in criminal justice has been “smart on crime.” The idea is simple: Replace ideology with evidence. Being “smart” means employing the most rigorous empirical methods and testing to determine what works in all areas of the criminal justice system, from policing and prosecution to sentencing, corrections, and reentry, and then following the results, wherever they lead.

If “zero tolerance” policing doesn’t work, don’t do it. If the war on drugs is a failure, don’t fight it. If the collateral consequences of a conviction make it impossible for a person to become a productive member of society, don’t impose them. In short, don’t adopt or maintain counter-productive policies just because they look good, make for a catchy soundbite or—worst of all—are what you’ve always done. It’s better to be smart than tough.

But like most slogans, “smart on crime” is easier to repeat than apply. If the lesson of American history teaches us anything, it is that reason is never a match for frenzy. Nowhere has the lesson been more obvious, and the experience more sobering, than in criminal justice. For the past 45 years, the criminal justice system has thrived on the creation of symbolic demons, the “super-predators” that we periodically discover and deploy to justify repressive policies. And for the length of this period, these policies have overwhelmingly been visited upon communities of color.

The process is always the same. It begins with a legitimate cause for concern. There was, for instance, a genuine crack epidemic that wreaked havoc across the United States in the 80s and 90s; it was not a myth. Symbols, in other words, are not created from whole cloth. But the reality of a crack problem was quickly overtaken by hyperbole and hysteria, which turned crack into a predominantly black drug, even though the evidence consistently showed that whites used cocaine at higher rates than blacks. At the same time, crack’s iconic symbol became the black male dealer, who was cast as a demon of uncontrollable ferocity. In that way, the real and very serious problem of crack became the justification for concentrated and aggressive enforcement in mostly black, urban neighborhoods, sending blacks to prison far more often than whites.

Today, we have what appears to be a new cause for concern. As the New York Times reported last week, after a long period of decline, murder rates over the past year are up in a number of American cities. In some places, like Milwaukee, St. Louis, and Baltimore, the increases are significant. This is indeed a serious problem and police departments across the country are trying to confront it by figuring out exactly what’s happening and why. (It should be noted that Bruce Frederick, a Senior Research Fellow at the VERA Institute of Justice in New York, has criticized the Times’ methodology, accusing it of over-stating the evidence).

But as I have repeatedly stressed in these pages, lethal violence in urban America is hyper-concentrated. It is confined overwhelmingly to a very tiny number of people who assault each other with deadly weapons at a comparably tiny number of places. If we are genuinely committed to being “smart on crime,” therefore, we will not turn this problem, however serious it may be, into a justification for repressive policing strategies that we know don’t work—policies like “zero tolerance,” which systematically misallocate police resources onto the innocent many and away from the dangerous few.

Yet if being “smart” were a simple matter of resisting failed strategies, criminal justice reform would be easy. The far greater danger is the risk that some will contrive a link between the rise in homicides and the nascent movement to criticize and curb police violence, and in that way create a new symbolic demon that can be deployed to blunt the call for change. Indeed, the contriving has already begun.

The first step was the claim, for which there is no evidence, that movements like #BlackLivesMatter have emboldened criminals—especially those who would assault the police—and emasculated law enforcement. Thus, when an officer is killed in the line of duty by a black assailant, #BlackLivesMatter is accused of having blood on its hands. A number of conservative commentators have made this claim, and some have gone so far as to argue that #BlackLivesMatter is a hate group.

And the second step has just appeared. Conservative commentators have now begun to argue that #BlackLivesMatter and other critiques of law enforcement are in fact responsible for the increase in homicides, and thus threaten to reverse the long decline in violent crime rates that we have enjoyed for more than two decades. After the Times article appeared, for instance, Front Page Magazine ran a column titled, New York Times Baffled by Massive Rise in Murder Rate it Caused, and which opened as follows:

Let’s see. Radical leftist pro-crime mayor who decided to wage war on cops. Radical leftist pro-crime president who decided to wage war on cops. Radical leftist pro-crime media which decided to wage war on cops.

Now murders are mysteriously rising for reasons they can’t explain. It must be Global Warming. . . . Now let’s run another #BlackLivesMatter puff piece and more pro-crime propaganda about freeing drug dealers.

Less hyperbolically, but with no more evidence, the National Review used the Times article to focus on Milwaukee, St. Louis, and Baltimore, where the murder rates have increased the most. “What do [these cities] have in common? They’ve all been at the center of the radical critique mounted by #BlackLivesMatter. In St. Louis, arrests are down and murder is up. In Baltimore, arrests are down and murder is up. In Milwaukee, still dealing with the death of Dontre Hamilton, [Police] Chief Flynn has spoken openly of how—time after time—aggressive policing met with media and activist pushback, until the department retreated into initiatives focused on ‘building empathy.’”

We are thus watching the creation of a new symbolic demon before our eyes. A legitimate cause for concern—an apparent rise in homicides—is deployed for ideological purposes by creating a new demon—namely, the radical black activist who intimidates the police and encourages mayhem, and in the process reverses the gains of the past two decades. Notably, the demon arises just as a movement is taking shape to critique police practices; as in the past, therefore, the solution to the new demon is to unleash the police and authorize new (or a return to) repressive policing against blacks.

It is all well and good to profess a commitment to being “smart on crime.” But we cannot turn the other way as evidence is misused yet again to justify the creation of yet another symbolic demon for the purpose of yet another round of repressive attacks on blacks. At some point, to be “smart on crime” demands that we say, simply but firmly, “Never again.”