Can Criminal Justice Reform Survive Cleveland?

Posted in: Criminal Law

For the past two years, I have crisscrossed the country researching a book on criminal justice reform. In my many conversations, advocates and activists working to repair our broken system have expressed the same fear: We’re just one bad crime away from losing all the gains we’ve made. Their concern is that criminal justice policy has always been driven more by fear (and fear-mongering) than by facts, and that a particularly horrific crime will revive the “law and order” rhetoric that has been mercifully silent for most of the 21st century.

For a time, I wondered whether their fear (and mine) was misplaced. Mass carnage at gay bars, abortion clinics, black churches, movie theaters, and elementary schools seemed to have no effect on the call for reform, and the quotidian violence in some inner city communities did not even register on the nation’s crisis meter. Perhaps the demand for change had finally reached a tipping point.

Then came Dallas and Baton Rouge. The Republican Convention finally found its theme, while the GOP and Trump finally found common ground: We Stand with the Police. And the theme they found is the event we feared—the crime that derails reform. Leave it to Donald Trump, the populist without principles, to seize on cowardly attacks by lone shooters to sound the divisive alarm.

Order and control are the twin objectives of the GOP/Trump campaign. Despite what they may say, the goal is emphatically not about keeping the police safe, nor is it about improving the lives of people of color in disadvantaged communities. If it were, political leaders would not call for more of the same programs that have engendered so much hostility between police and the communities they serve. Yet that will be the call: A more prominent police presence, a larger blue footprint. More order maintenance policing. More stops, searches, and arrests—all the better to make plain who owns the streets. Resources will flow to strategies that emphasize high visibility and command unquestioned respect, for that is what control means.

We have long, bitter experience with these techniques. They do not reduce crime or make communities safe, and their contribution to the falling crime rates we have enjoyed since the early 90s is modest at best. But they are brilliant if the goal is to bring an entire community into the clutches of the carceral state, and to burden it with the rippling disabilities that come from having a criminal record. Even more, strategies like these are the very best way to create a seething, visceral resentment against the most visible symbol of the techniques that cause so much misery.

Those who would cast an officer into this cauldron of rage are no friend of the police.

In practice, this is what the new face of “law and order” will mean: When whites kill in a church (or theater, or school), the attacks will be understood as random acts of senseless violence, to which the state will respond by resisting calls for gun control; when blacks kill in the inner city, the attacks will be understood as proof of inherent violence, to which the state will respond by resisting calls for structural change; but when blacks kill police, the attacks will be understood as a threat to the state’s monopoly on the legitimate use of force, to which the state will respond by reasserting its control and imposing order.

Many will say their goal is not to impose control like some distant overlord, but to make disadvantaged communities better. Some will even be sincere. They genuinely want to stop the violence that is so common in some communities, and believe there is no choice but to increase the police presence.

But the solution to the problem of urban crime is not more but better policing. Research has consistently demonstrated that crime, and especially violent crime, is hyper-concentrated, committed by a tiny number of people at a similarly tiny number of addresses. I have discussed this research again and again. Even in the most disadvantaged communities, the overwhelming majority of people and places have nothing to do with crime. The lesson of this research is clear: To be effective, police must focus creatively on the worrisome few rather than the innocuous many. They must stop, search, and arrest fewer people, less often. It bears repeating: Saturation policing diverts resources away from what matters and systemically destroys the very communities police are trying to save.

Alas, I fear these lessons will be lost in the upcoming din. The GOP objective has nothing to do with reducing crime and everything to do with imposing order. David Clarke, the incendiary sheriff of Milwaukee County, told the RNC delegates that the Black Lives Matter movement was contributing to “a collapse of the social order.” Irresponsible charges like these helped create our broken criminal justice system. Soon, we will learn whether the call for criminal justice reform can survive the clamor for control. We will find out whether reform can survive Dallas, Baton Rouge… and Cleveland.

  • kevinl4000

    Great article… Thanks!

  • Frank Willa

    Professor, thank you for your timely insights. In my view this cynical call to ” law and order” is first about getting votes and electing Trump. Your fellow columnist John Dean writes about the ” authoritarian” personality and the traits that get them to support this type of agenda. This seems to me to be a direct strategy to motivate these low information voters. Further, the law and order tag is of course from Nixon and his appeal to the “silent majority”; the southern strategy as it was called was also the racially based gambit to get votes. I believe that you have seen through this fear based tactic, and also get that it may work again.