Legal Commentary

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:

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.