Notable back-and-forth on how "conservatives" ought to respond to this moment in crime and punishment
I have put "conservatives" in quotes in this title of this post because I have never really found traditional political labels that helpful in explaining people and positions, and I sometimes find such labels can prove particularly problematic in the criminal justice arena. In fact, it is because of these realities that I found interesting a pair of new pieces from right-leaning sources. First, writing at City Journal, Josh Hammer has this piece titled "Recover the Moral Imperative of Law and Order: Conservatives should lead the way in moving the pendulum back toward the rule of law." Here are excerpts:
[T]he time is ripe for a more aggressive, sustained campaign against the de-carceral, de-civilizational agenda pushed by many libertarians and progressives alike. Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law....
[A] pro-rule-of-law national campaign is now necessary. Activists can start at the local level, getting involved in district attorney races to oppose anti-enforcement, de-carceral candidates. Voters should punish statewide attorneys general and federal legislators alike for throwing law enforcement under the bus and focusing their ire on the “qualified immunity” legal doctrine over substantive commitments to support law enforcement. Citizens should make themselves heard at city council meetings in support of more police officers on the beat, a proven and effective crime deterrent. Conservative commentators must grow comfortable calling out the excesses of light-on-crime libertarianism that come from their own side of the aisle. Republican politicians, cognizant of both the disturbing on-the-ground crime reality and the political truth that the small-government rhetorical emphasis of the Tea Party era is over, must recalibrate and shift back toward a traditional pro-law-and-order political platform. Such a platform would be both proper and popular.
We have reached the point where the pendulum has swung too far back toward decarceration, under-prosecution, and light-on-crime policies. The moral primacy of order and public safety must take precedence over fashionable peddling of pro-criminal “bail reform” and “criminal-justice reform” initiatives. We have been here before; we know what we have to do. Now it’s time to execute the game plan.
But over at the Cato Institute blog, Clark Neily and Shon Hopwood have this response titled "To a Man With a Hammer, Every Criminal Justice Problem Looks Like a Nail." Here is the closing part of their take which questions whether Hammer is really advocating for "conservative" reforms:
[P]uzzling — particularly from a self‐styled “common‐good” originalist — is Hammer’s embrace of qualified immunity, a judicially confected legal doctrine specifically designed to ensure that police and other “state actors” who have been plausibly alleged to have violated people’s rights don’t have to answer for it in court. More thoughtful conservatives, including Justices Antonin Scalia and Clarence Thomas, Judge Don Willett, and University of Chicago Law Professor Will Baude, have challenged the legitimacy of qualified immunity on originalist grounds, while scholars of all stripes have shown what an unmitigated disaster it has been for justice, accountability, and the “moral primacy of order and public safety” that Hammer himself extols in his piece.
Another surprise coming from a conservative is Hammer’s apparent disdain for democracy, at least when it involves electoral majorities choosing reform‐minded district attorneys who entertain the heresy that it might actually be possible — as such notoriously crime‐friendly states as Texas, Georgia and Mississippi discovered — to reduce crime rates while locking up fewer people.
The leave‐no‐prison‐unfilled approach Hammer touts goes well beyond what even Jeff Sessions and William Barr implemented during their respective tenures as Attorney General. There are over 5,000 federal crimes, yet neither Sessions nor Barr tried to charge everyone who violated those statutes. They couldn’t. The federal criminal justice system would be overwhelmed if they did, which is why they used prosecutorial discretion the same way so‐called “progressive” prosecutors have — to prioritize and target the worst behaviors.
Americans should be wary of enthusiastic dilettantes who think a one‐year spike in crime rates during a global pandemic represents a civic emergency for which the only prescription is to abandon decades of progress on criminal justice reform and simply put even more people behind bars. We tried that approach, and we learned that it doesn’t work — those of us who did our homework, anyway.
Comments
Post a Comment