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Tuesday, January 27, 2009

Who's "Right" on Crime?

In his NYT column yesterday declaring the era of conservative dominance begun by Ronald Reagan to be over, Bill Kristol offered the following eulogy for that era:

"Conservatives have been right more often than not — and more often than liberals — about most of the important issues of the day: about Communism and jihadism, crime and welfare, education and the family. Conservative policies have on the whole worked — insofar as any set of policies can be said to “work” in the real world. Conservatives of the Reagan-Bush-Gingrich-Bush years have a fair amount to be proud of."

I'm not sure exactly what Kristol means by being right about "crime" but if he is invoking the claim made by conservative politicians starting with Wallace, Nixon, and Reagan in '68, that liberals were dangerously out of touch with voters concerns about crime I wish to dissent.  This claim is and was unfair to both liberal and conservatives.  Liberalism helped launch and sustain the war on crime, and conservatives do not deserve exclusive blame for the resulting hyper-extension of the worst kinds of "big government" carried out in its name.

The historical record shows that liberals saw early and with alarm that rising crime in the 1960s was a threat to their New Deal coalition based in the big metropolitan areas.  LBJ declared war on crime and launched a full scale presidential commission to explore its causes and solutions.  While he imagined the war to be a front in his war on poverty, he began the pattern of massive federal investment in state law enforcement that continued through the 1970s (ironically Reagan largely ended that flow, while investing in other strategies),

The liberal Warren Court, often blamed for handcuffing the police, actually helped promote a national focus on improving local law enforcement, courts, and jails, that probably should be seen as having made possible the enormous expansion of the prison populations that became visible in the 1980s (by pumping up the systems capacity to arrest and convict).  During the 1970s and 1980s, liberal federal judges started imposing 8th Amendment demands on state prison systems, a move that socio-legal scholars like Mona Lynch (in her forthcoming book on Arizona's prison system) and Heather Schoenfeld (in her dissertation on Florida's prison system) suggest probably provoked states to launch major prison construction initiatives.

The war on drugs is the most liberal policy fixation of all.  The public hysteria about crack in the 1980s was animated not by simply by racist fear of black users, but at least as much by misguided concerns for their children(see the article in today's Science Times on a study finding that harm to children born to active crack using others has turned out to be less severe than alcohol and more akin to the harm cigarette smoking).

If  Bill and the other editors of the Weekly Standard were to invite me over to lunch, I would try to convince them that the war on crime has led to a series of results that no true conservative could love including:

  • The creation of a vast population of prisoners, ex prisoners, and soon to be imprisoned again ex offenders who constitute an enormous and growing burden on the tax payers and who are largely locked out of productive labor.  (On prisons see my post on John Stewart's hilarious rant about mass incarceration last night on the Daily Show)

  • The formation of powerful rent seeking public employee unions that have influenced state spending priorities in many states.

  • The production of crime victims as a privileged class of citizens with special rights to influence the legal process.

Indeed, with conservatives out of power, and Obamacrats too savvy to appear soft on crime anytime soon, it may fall to conservatives to lead us out of governing through crime and the culture of control it has led to.

Posted by Jonathan Simon on January 27, 2009 at 03:48 PM in Criminal Law | Permalink


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Thanks to Patrick and the editors for correcting my grammar! I think Larry has isolated a critical point which should weigh heavily in all our analysis of crime policy. With a nod to Rawls (yes I'm a liberal) I would state it this way: Substantial inequities in the racial and class distribution of crime control burdens are justifiable so long as these policies result in proportionate benefits of crime control to these same races and classes. Based on my reading of the empirical record I might support Bratton's policing approach in NYC (although it could have been done with less police brutality and fewer minor drug arrests), but mass imprisonment fails this test as recent work by Bruce Western and Todd Clear demonstrates.

Posted by: Jonathan Simon | Jan 28, 2009 7:50:56 PM


As Paul Horwitz suggests, a little introspection about the class bias in the academy might not be a bad thing. I do indeed believe that law professors approach the balance between liberty and order from a middle class perspective, in which security is taken as a given. If law professors came from the class whose relatives were being shot to death in gang-related murders, I do not think we would see the casual assumption in the post that began this thread that the war on crime has had only costs and no benefits.


Posted by: Larry Rosenthal | Jan 28, 2009 7:03:47 PM

Dan's caution is useful. But I do think it is fair game in general -- not with specific respect to Jonathan or his post! -- for us to wonder what effect the class status of legal academics has on their concerns. I am mindful of Posner's writing somewhere or other, I think in his Public Intellectuals book, about the tendency of liberal writers to write left and live right, and of conservative writers to write right and live left, each in different respects.

Posted by: Paul Horwitz | Jan 28, 2009 4:26:54 PM

Larry, I'm not sure why your comment devolves into generalized attacks on other law professors when your basic point is a reasonable one. It does your argument no service to cast aspersions on liberals or others who may just disagree with you on the merits of what's the best approach here.


Posted by: Dan Markel | Jan 28, 2009 3:22:11 PM

New York's population density probably magnifies the effect of high-intensity policing, making its benefits particularly obvious. That does not mean, however, that those effects were not felt elsewhere. The substantial declines in violent crime since William Bratton came to Los Angeles, for example, argue against the view that New York's policies could have no effect elsewhere. In fact, there is an impressive array of studies around the country demonstrating the efficacy of high-intensity, "hot spot" policing.

Still, it is striking that so many liberals seem to regret an era in law enforcement in which the rate at which poor people of color were victimized declined so dramatically. It may not, however, be surprising. Law professors can afford to live in neighborhoods where their own lives are not in jeopardy. Small wonder that they therefore seem to place little importance on the decline in crime rates in neighborhoods that they assiduously avoid.

Larry Rozenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 28, 2009 10:52:44 AM

Professor Rosenthal is correct that the crime decline of the 1990s was one of the most dramatic and beneficial social trends of the last half century. If any particular policy or set of policies could be fully credited with achieving it, it would be worthy of sever Nobel prizes; the social science equivalent of coming up with a knock down cure for advanced colon cancer. The great difficulty is figuring out just what caused it. Crime rates dropped virtually everywhere in the US, in large cities, and small, even in Canada. States with the highest incarceration rates did not achieve the steepest declines. Mass imprisonment must have some impact on violent crime, if only because you are taking a significant demographic portion of the high risk young male population and putting them in an environment where it turns out to be at least harder to kill anyone, but the aggregate effects appear modest and may well be out weighed by the tendency of imprisonment to lengthen criminal careers. New York is indeed the big apple of crime declines but it depends what Larry means by tough on crime. New York sent relatively few people to prison compared to California and many other states. What NYC did was greatly intensify police pressure on young men on the subways and streets, a practice that may have discouraged many other young men to leave their weapons at home. Because NYC enjoys extraordinary density and concentrated use of public assets like the subway system, that kind of police pressure can have broad effects across the population. It is sadly far from clear that the same strategies will work in LA or Oakland.

Posted by: Jonathan Simon | Jan 28, 2009 10:40:23 AM

If this post is right, it means that liberals somehow managed to initiate tough-on-crime policies without getting any political credit for doing so. Pretty stunning political incompetence, if that's right.

In any event, one result of the "war on crime" that Professor Simon omits is the precipitous declince in violent victimization rates. During the 1990s, the violent victimization rate for nonwhites declined by 36 percent. In perhaps the most notorious tough-on-crime city, New York, the homicide victimization rate for African-Americans declined from 58 per 100,000 population in 1990 to 17 per 100,000 population by 1998. Are these outcomes also to be regretted?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 27, 2009 11:15:34 PM

Well, I wouldn't say there's no hope for the new administration. They don't seem to advocate a "hard on crime" position as a priority: http://californiacorrectionscrisis.blogspot.com/2009/01/law-enforcement-and-corrections-message.html

Posted by: Hadar Aviram | Jan 27, 2009 4:33:34 PM

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