If a neoconservative is a liberal who has been mugged by reality, as Irving Kristol once put it, what do you call a conservative faced with video footage of the chokehold death of Eric Garner, a man the New York Police Department confronted for the crime of selling contraband cigarettes?
In the wake of the shooting death of Michael Brown in Ferguson, Missouri, conservatives and liberals found themselves taking familiar stances. Those on the right were by and large inclined to give a local police officer the benefit of the doubt. Those on the left maintained that use of lethal force against Brown was unjustified, and that the failure to indict Darren Wilson reflected the deeply ingrained racism of the American criminal justice system.
The case of Garner has met with a strikingly different response from conservatives, as Tim Lee of Vox recently observed. Bill O’Reilly of Fox News, a man known for channeling the populist id of older white conservatives, somberly expressed his horror at Garner’s death on Wednesday night. More pointedly, Tim Carney, a leading light of the conservative intelligentsia and a columnist for the Washington Examiner, pointed to Garner’s death of an illustration of the dangers of an unaccountable, excessively strong government.
Having grown up in Brooklyn in the 1980s and lived through the explosion of violence that accompanied the crack epidemic, I came to deeply appreciate the dangerous and difficult work done by the NYPD. Like most conservatives, my gut-level sympathies are with police officers who find themselves in situations that can quickly spiral out of control. And I believe that the most important job of the police is to protect innocent people from harm, a job the NYPD has generally done well. But there is no question that something has gone badly wrong with policing in many of our cities. When high-crime neighborhoods grow to distrust local law enforcement, local law enforcement finds it more difficult to do its job. Anger and anxiety build, and sometimes it explodes.
Of course, conservative fears about law enforcement run amok are different from those invoked by liberals. Conservatives, particularly libertarian-minded conservatives, are far more likely to point to the expansion of government as a driver of police abuses, a claim that at least some liberals find risible, or even offensive. Moreover, they are far less likely to chalk up police brutality to straightforward racism. Fear of the police, a fact of life for young black and brown men—particularly those living in neighborhoods plagued by violent crime, ironically enough—is largely unknown on the American right, which is disproportionately white and either suburban or rural.
Yet it is an oversimplification to see our excessive reliance on punitive crime-control policies through a racial lens. Consider the invaluable work of James Forman Jr., a clinical professor at Yale Law School, who has argued that black Americans played a larger role in the rise of “broken windows” policing and mass incarceration than is commonly understood.
Forman has recounted the role of Harlem-based black activists in the late 1960s in pushing for New York state’s notorious Rockefeller drug laws. Those laws imposed draconian sentences for drug offenses and set the tone for a wave of similar tough-on-crime measures that spread around the country in the years that followed. He details the rise of more punitive policies in black-majority jurisdictions with black-majority police forces, focusing in particular on Washington, D.C. Forman’s work absolutely does not prove that racism played no role in the incarceration boom that has done so much to devastate poor black neighborhoods. Rather, he reminds readers that the fact that young black men face shockingly disproportionate rates of violent crime had led a not inconsiderable number of black Americans to embrace tough-on-crime policies. The fear of crime that drove these policies was not unique to whites, and it is not just whites who bear responsibility for the many ways these policies have gone wrong.
If conservatives accept that the worst excesses of law enforcement need to be reined in, what are the appropriate next steps? And is there room for common ground with liberals who see the roots of the dysfunction of our criminal justice system very differently?
There are grounds for optimism. In 2012, Steven Teles and David Dagan described how a coalition of conservative policy entrepreneurs and GOP elected officials had set out to reduce incarceration levels, having grown troubled by the ugly moral consequences of separating fathers, boyfriends, and husbands from their families. This impulse needs to inform every aspect of policymaking around criminal justice.
What government routinely fails to do is account for the costs the criminal justice system imposes on the civilians who get caught in its web. Mark A.R. Kleiman, a public policy professor at UCLA and author of When Brute Force Fails, made this point vividly in a Democracy Journal essay published last spring. Instead of fixating on the dollar costs of running the criminal justice system, he asks that we also account for “the suffering inflicted by arrest, prosecution, conviction, and incarceration, including all of the residual disabilities that go with the label ‘ex-convict,’ and the fear created by overaggressive policing.”
Imagine if, as Cardozo Law School professor Richard A. Bierschbach has suggested, we had in place a “punishment budget.” Given such a budget, we would accept that the criminal justice system would cause some degree of suffering. At the same time, we’d insist that if you pass some measures that increase suffering in some way—say, by making more arrests—you’d have to reduce the sum total of suffering in some other way, for instance by reducing prison sentences for nonviolent offenders. This would impose a useful check on the creep of new laws, rules, and regulations that steadily increase the government’s coercive powers, as if on autopilot.
Establishing a punishment budget is only the first step that the right can and should rally around. The second is insisting on greater transparency. We need better, more reliable data on policing so that communities have a clear sense of what local law enforcement agencies are doing in their name. The chief resistance to greater transparency comes from police unions. Conservatives, who’ve long been critical of public sector unions for imposing rigid work rules and contributing to soaring compensation costs, should have no qualms about calling for their abolition. When teachers unions fight tooth and nail on behalf of teachers accused of misconduct, it’s a problem. When police unions do the same on behalf of police officers accused of endangering the lives of civilians, and in some cases killing them, it’s a very big problem indeed. Republicans are often wary of curbing the collective bargaining rights of public safety employees, due to their political influence and their conservative sympathies. That has to change.
The third step is to encourage a more localized approach to criminal justice, an idea that’s been championed by Bierschbach and by Stephanos Bibas of Penn Law School. Both have pointed to the encouraging example of the Red Hook Community Justice Center, a court that employs people with a deep knowledge of their Brooklyn neighborhood, and that is more likely to mandate community supervision than to send low-level offenders to jail. Because the men and women who work for the center know the neighborhood so well, they have a better sense of which offenders represent a serious and ongoing threat to law-abiding citizens and which need nothing more than structure and discipline in their lives. Better still, the center’s approach leads local residents to think of it as an ally working to keep the neighborhood safe rather than as an enemy looking to snatch away their troubled young men.
The community court model is no panacea. It works better in some places than others. But it does resonate with many of the things that conservatives care about most: It makes use of the “little platoons” of civil society, it respects local priorities and values, and there is at least some evidence that it’s much cheaper than business as usual. If local law enforcement is ever going to become more humane and more legitimate, becoming more local is absolutely essential.