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Monday, January 12, 2009

Federalism & Cop Shows: The Case of "The Wire"

After Rick Pildes and other colleagues assured me that HBO's The Wire transcended all TV formulae for cop shows, I rented the first season and watched it sporadically with my wife. Artistically speaking, the show is outstanding. But naturally I am more interested in looking at what the show has to say about fundamental matters -- which, for me (of course) means federalism.

Sadly, the Wire followed the usual formula. Local police are focused on the nitty gritty of drug crime, trying to save West Baltimore. The feds are better dressed, more humorless, and have a senseless set of bureaucratic norms that prevent them from helping out the beleaguered local cops who want to bring the feds in to help with surveillance against a local drug boss. The feds refuse, because there is not a federal interest: They need an international drug cartel, an anti-terrorism angle, or political corruption in order to have a statutory mandate. One of the Baltimore cops storms out, telling the Deputy U.S. Attorney in Baltimore that he is an "empty suit" and not "real police": The feds, he rails, would let "West Baltimore burn" because of red tape. Although the show does an admirable job of suspending any overt judgment about its characters' actions, the sympathies that the scene is intended to elicit are apparent as the federal agents sit around the table looking sheepish and feckless.

From any sensible functional theory of federalism, however, the feds in The Wire were right to insist on a genuine federal interest -- and The Wire's own plot shows them to be correct. During the first season, the primary reason that the City cops could not collect evidence against the drug boss was political corruption in the state legislature: Eliminate the corruption, and the Baltimore police would be able to get the wire taps they needed.

That a popular TV show would miss the moral of the importance of limiting federal police power suggests, more than any judicial decision or federal statute, that federalism may be well and truly dead in the public's consciousness.

Posted by Rick Hills on January 12, 2009 at 08:52 AM in Television | Permalink

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Comments

Orin, as everyone who reads this blog regularly knows, I am always eager to be disagreeable. But, if I distorted your comment absurdly, Orin, my error was entirely unintentional: My mistake for misconstruing you. Maybe those T.V. feds were just stating purely political priorities having nothing to do with their view of the proper division between national and state responsibilities. I'll re-watch the episode and report back.

Meanwhile -- believe it or -- I've finished the second season on the waterfront (following David Schleicher's advice). Yes, that episode also culminates in a local-federal clash about priorities (this time dealing with unions).

But no time to offer my comments now: I've got to finish grading some Local Government Law exams.

Posted by: Rick Hills | Jan 12, 2009 3:35:00 PM

I agree with "mike" that David Simon isn't interested in comparative institutional analysis -- all formal bureaucratic institutions, the show argues pretty explicitly, are dehumanizing and corrupt. Local, state, federal governments, corporate entities (see especially his rants against the corporate owners of newspapers), whatever. It's one of his most compelling narrative impulses and one of his weakest tendencies as a political theorist. Since he's in the business of producing the former, his latter weakness doesn't really matter.

That said, the show has a strong commitment to informal local networks. The humanizing element in his stories are always a kind of cultural, rather than political, federalism: Baltimore and its neighbors are the site at which individuals and groups (families, good cops, friends, etc.) can fight back against centralizing, corrupt institutions. But no institution can balance the excesses of another, because it's their very institutional nature that marks them as evil.

Posted by: Mark Fenster | Jan 12, 2009 3:25:02 PM

Rick,

You appear eager to disagree with me, but I believe you read my comment in an absurd way in order to do so. It is obviously correct that the federal goverrnment's decisions of what to prosecute have extremely important implications for federalism. Indeed, I believe everyone recognizes that with commerce clause restrictions essentially removed, and with Congress not terribly attuned to such issues, that Justice Department policy is the single biggest determinant of the line between federal and state law enforcement in the criminal justice system.

My comment was addressed to a quite different point. My recollection from the show was that the federal government's reasons for declining prosecution were not that the federal authorities did not perceive a federal interest, but that they did not see prosecution as consistent with the announced priorities of the Justice Department at the time.

Posted by: Orin Kerr | Jan 12, 2009 3:21:28 PM

Orin writes:

"The feds had a statutory authority to pursue the case. They declined to pursue it because it didn't fit with DOJ's announced priorities following 9/11, not because they couldn't take the cases if they wanted to take them. The point was that each institution has its priorities and interests set by its leaders; I don't really see this as particularly related to federalism."

I'd strongly disagree: The administrative rules and customs governing executive priorities are at the heart of criminal-law federalism. The Constitution is well-nigh irrelevant in this area, and the fact that some federal statute formally allows prosecution is even more irrelevant to the actual operation of the American federal system. Fifteen years ago, Harry Litman and Jamie Gorelick wrote an article suggesting that federalism would be adequately protected through the enforcement priorities as embodied in the U.S. Attorney Manual in its policies defining "federal interests" (for instance, in Petite prosecutions). (See "Prosecutorial Discretion and Federalization Debate," 46 HASTINGS L.J. 967 (1995). I have actually taught the Manual in my federalism seminar, because, disagreeing with Litman and Gorelick, I think that it embodies a disastrous theory of federalism. (Example: The Manual specifies that, if a higher sentence can be secured under a federal statute, then that fact indicates a federal interest in a federal prosecution -- a preposterous view, in my opinion).

Just because a federal criminal statute covers a case hardly means that federalism is irrelevant: We have over-federalized criminal to such an extent that federalism can only be vindicated administratively, by feds' exercising sensible self-control. So, yes, Orin, I'd say that federalism has everything to do with how each level defines its enforcement priorities -- and federalism does a lot better in Hollywood, apparently, than in the real world.

Posted by: Rick Hills | Jan 12, 2009 2:33:47 PM

That's where the difference between descriptive and normative comes into play. Simon shows it as it is, not as it should be based on sensible functional theories of federalism.

Posted by: Hadar Aviram | Jan 12, 2009 2:16:57 PM

"watched it sporadically with my wife."

That's all you needed to say.

Posted by: Anonymous Frustrated Lawyer | Jan 12, 2009 1:27:29 PM

"From any sensible functional theory of federalism, however, the feds in The Wire were right to insist on a genuine federal interest -- and The Wire's own plot shows them to be correct."

You later write:

"That a popular TV show would miss the moral of the importance of limiting federal police power ..."

Why do you assume The Wire 'missed' this? Because the feds turned out to be right to insist on a genuine federal interest? That might indicate The Wire didn't 'miss' it at all.

You also seem to think The Wire's treatment of the feds is critically negative. I don't think the show was in that business as much as you seem to think so. David Simon's point is that institutions -- as a concept -- fail us. The federal government surely is one of them, but not even Simon would say it's the fed's job to intervene in every instance. You seem to think he was saying just that. If I wrote about a 25-year-old who went to his mom for help, and a mom who decided the 25-year-old needed to solve the problem himself, I wouldn't necessarily be criticizing the mom.

Posted by: mike | Jan 12, 2009 12:50:28 PM

It all depends on where the camera is. When the camera is with the feds, the local police are corrupt and/or incompetent.

Posted by: Bruce Boyden | Jan 12, 2009 11:27:26 AM

Rick,

The feds had a statutory authority to pursue the case. They declined to pursue it because it didn't fit with DOJ's announced priorities following 9/11, not because they couldn't take the cases if they wanted to take them. The point was that each institution has its priorities and interests set by its leaders; I don't really see this as particularly related to federalism.

Posted by: Orin Kerr | Jan 12, 2009 11:16:47 AM

Rick -- you should try to make it through season 2. I'm not exactly sure what you'll think of the federalism issues, but the relationship between the feds and the local police are at least complicated by the season 2 plot.

Posted by: D.Schleicher | Jan 12, 2009 9:37:20 AM

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