by Michael C. Dorf
In 2004, The Onion ran a headline that read: "Homosexual Tearfully Admits To Being Governor of New Jersey." It was a reference to a sex scandal that engulfed then-Governor-of-New-Jersey Jim McGreevey. The joke was that being a gay man was not embarrassing (as of course it ought not to be, although McGreevey's having been closeted was, at the time, a too-common course of action for gay politicians), that even having an extramarital affair was not especially problematic, but that being governor of the Garden State was indeed shameful.
Yesterday's news reminded me of that Onion headline. In response to news stories linking the ransomware attack on the Colonial fuel pipeline's computers to lax Russian government enforcement or even tacit Russian government encouragement, the hackers responsible for the attack, who operate under the moniker Darkside, apparently released the following statement on the dark web: "We are apolitical, we do not participate in geopolitics, do not need to tie us with a defined government and look for other our motives." In other words, "hey, we are not state actors or terrorists; we're criminals." If this were an Onion story, the headline would be something like "Criminal Hackers Indignantly Deny Patriotic Motives."
This is not an Onion story, however. It's real life. Does it teach us any lessons? Perhaps not, but at the risk of crossing a bridge too far, I'll suggest a connection to another news story: the recent uptick in violent crime has led some on the right to argue that activists decrying police violence against civilians are treating ordinary criminality as no big deal compared with state malfeasance in just the way that the criminal hackers at Darkside do.
I don't share that view of the activists' cause, but it's hard to miss recent references to the notion that attention to police violence downplays the dangers of crime. Consider the sub-headline of a New York Times story about the New York City mayoral race: "Rising concerns over crime have led candidates to issue strong appeals for public safety, less than a year after the city was under pressure to defund the police."
That sub-headline gives voice to a view that tacitly criticizes the last year of protests by BLM and other activists seeking greater accountability for police violence and dramatic reform of policing: doing so carries a cost in the form of increased crime; if you over-deter or defund the police, you will license criminals. Is that criticism right?
In a sense, yes, obviously there comes a point at which attention only to police violence and disregard for private violence will jeopardize public safety. Human nature being what it is, no large society can thrive without some ability to credibly threaten force against anti-social actors who, in the absence of such threats, would victimize their law-abiding neighbors. The Times story quotes Rev. Al Sharpton, who sensibly says this:
We’re in a very precarious position. People are afraid of the cops and the robbers. We have both of them that we’ve got to deal with. And anyone that cannot come up with a comprehensive plan that threads the needle of both should not be running for mayor.
That's precisely right. It's also an old--and deeply American--idea. James Madison, wrote in Federalist No. 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Yes, but how? There is no shortage of ideas afoot from people who are substantially more expert than I am in both crime control and in police reform. I'll offer two thoughts about how a productive conversation about these matters might proceed, one for those who worry more about crime and another for those who worry more about excessive force by the police.
(1) Let's start with the people--mostly on the right--whose main focus is crime control. It's tempting to push back against that focus by quoting Benjamin Franklin, who famously said that those who sacrifice liberty for safety deserve neither. He didn't mean what people assume he meant, but so what? People who quote Franklin do so to make the point that in trying to trade off liberty or privacy for security, one ends up with neither. Yet that's pretty clearly an exaggeration. There are in fact contexts in which trading away some liberty--from surveillance by the police, from stop-and-frisk policies, etc.--could actually reduce crime. It is doctrinaire to assert that more aggressive policing measures are always counterproductive.
Yet the Franklin-quoters nonetheless have a point. Not every restraint lifted from the police results in reduced crime. Some more aggressive police tactics are in fact counterproductive through a familiar mechanism: people who are justifiably afraid of police harassment or brutality will hesitate to cooperate with the police in preventing and solving crimes. Community policing is not a panacea, but it does build on the sensible idea that police who view the civilian population as the enemy will be less effective in controlling crime than police who work in partnership with law-abiding community leaders and members. Thus, even if one begins with the proposition that crime control is paramount, one has good reason to rein in excessive use of force and other abuses by police.
(2) Now let's turn to the view--mostly on the left--that the main focus of concern should be police abuses. To them I would say much the same thing: we needn't choose whether to prioritize crime or police abuse. As Sharpton nicely put it, the goal should be controlling both the cops and the robbers.
Beyond that, I worry that messaging could be leading to a missed opportunity for serious reform. Structural racism in policing is a genuine and serious problem, but BLM and other activists probably undercut rather than build support for real change by focusing on racial bias in policing to the exclusion of excessive force more broadly.
The result is predictable. Conservatives who respond by pointing out that the police shoot a lot of white people too believe that in so doing they have debunked the case for police reform, whereas in fact they have expanded it. For example, in the essay just linked, the author crows that only six percent of the people (of all races) in the U.S. killed by the police in the last six years were unarmed. Yet based on the latest data, that totals over 400 unarmed people killed by the police, or an average of 80 per year. Moreover, police killing of an armed civilian isn't necessarily justified. Some of those armed victims, like Philando Castile, were armed lawfully and posed no threat when they were shot and killed by the police.
The simple truth is that police killings of civilians occur with much greater frequency in the U.S. than in any remotely comparable country. That's a serious problem. The fact that white civilians are being killed in large numbers should present an opportunity for a cross-racial movement, regardless of the fact that race makes policing especially problematic for African Americans.
Whatever else contributes to the underlying problem, it should be clear, as I noted last week, that the widespread prevalence of guns in the U.S. increases the danger to civilians from both the cops and the robbers. Accordingly, any serious effort to combat crime and excessive use of force by the police would include measures to reduce the numbers of people who carry firearms. Insofar as people on the political right who think that crime is a much more serious problem than excessive use of force by police also think that guns should go unregulated, there will be less room for a cross-ideological coalition.
Still, less room doesn't mean no room. One reform, already being implemented in many places, would have police use non-lethal weapons more frequently and lethal ones less frequently. To be sure, that's hardly a perfect solution. Non-lethal and "less lethal" weapons can still cause serious injury and may be used simply as a prelude to police use of deadly force. Better training in use of non-lethal force is also needed, but so long as police carry both guns and tasers, there will be a chance that they shout taser while firing a gun. These and other concerns indicate that reducing the number of hostile police/civilian interactions should itself be a goal--which is, after all, a big part of what activists mean by "defund the police."
As should be apparent, I'm not neutral in this debate. Despite my concerns about messaging, I mostly agree with the activists on the left who urge very substantial reform of policing, in no small part because I think that the best understanding of what they propose can be implemented in ways consistent with crime control. It should be possible to do better in addressing the Sharptonian/Madisonian problem and thus to restrain the cops along with the robbers.