Police reform by conservatives

Dan McLaughlin:

In the aftermath of the killing of George Floyd by Minneapolis police officers, the national conversation is focused on how police treat African Americans. As often happens, the loudest voices are left-wing radicals with impractical slogans and an anti-police axe to grind. But that doesn’t mean conservatives should be shut out of the policy debate. In fact, there are many ways to address police misconduct and brutality and improve our law-enforcement system that fit comfortably within a conservative framework. At the same time, it falls to conservatives to be careful that reforms do not do more harm than good.

What would conservative law-enforcement reforms look like? Here are the foundational principles from which specific proposals should proceed:

1. Respect for Human Life. Death is an unavoidable part of police work, especially in confrontations with armed civilians where the alternative to a killing by the police is often a killing of the police. As discussed below, the number of unarmed African Americans killed by the police in any given year is quite small, and proportion matters in deciding what changes to make and what tradeoffs to accept. But fundamentally, the first principle of policing must be respect for human life.

That means not treating the relatively small statistical size of the problem as a reason to do nothing at all. It means having respect for the lives of those who interact with the police, respect for the lives of those who depend on police protection, and respect for the lives of the police themselves. “Black Lives Matter” has gained currency as a slogan due to a widespread sentiment among black Americans that their lives are not valued equally. There is no single policy reform that can change that overnight, but conservative leaders should recognize that a consistent pro-life ethic and message stand the best chance of acknowledging the historical roots of the mistrust between cops and African Americans, and of making “Black Lives Matter,” “Blue Lives Matter,” and “All Lives Matter” into complementary rather than conflicting sentiments. To respect the lives of all, you must respect the lives of each.

2. Personal Responsibility. The core of conservative thinking about misconduct of any kind, in any line of work, is that individuals are responsible for their own actions. Broad-brush generalizations about “all cops” are just as counterproductive and dangerous as generalizations about “all black people.” When individuals misbehave, abuse their power, or prey on other people, they themselves should bear the lion’s share of the blame and accountability. Conservatives do not believe in the perfectability of mankind: There will always be bad cops, for the same reason that there will always be a need for cops. Moreover, cops exercise government power, which is always prone to abuse and always demands accountability.

The first big step toward individual accountability is to break the power of police unions over the investigation and discipline of individual officers. Conservatives have long argued that unions in general tend to hamstring employers in distinguishing between good and bad employees, and ultimately lead to collective rather than individual responsibility. Public-employee unions in particular are longstanding targets of conservative criticism for undermining democratic accountability in favor of government by the government, of the government, for the government. That is just as true of Republican-aligned police unions as it is of, say, Democrat-aligned teachers’ unions.

Whether or not police reform requires breaking the unions themselves or their political influence, states should change their laws going forward to exclude criminal investigations and the officer-disciplinary process entirely from collective bargaining. Calvin Coolidge famously told striking Boston cops that there was “no right to strike against the public safety by anybody, anywhere, any time.” No union should have a right to prevent the firing of bad cops in the name of the public safety, either. With unions excluded from bargaining over discipline, there would be fewer obstacles to improving, say, transparency about individual officers’ records.

Another way to encourage individual responsibility is to reform qualified immunity, the doctrine that protects police officers from civil suits when they violate individual rights. The doctrine sometimes lets cops off the hook if a right was not “clearly established” in the law. That rule originated with a case where cops got sued for enforcing a statute that the courts later struck down, and in that context, it’s appropriate: Cops don’t write the laws, and they should not be individually responsible for enforcing a law that a court might later find unconstitutional. But the “clearly established” defense has expanded into situations that solely concern police behavior.

Individual responsibility can also be promoted by preventing police officers from covering their badges, and by regular use of body, dashboard, and interrogation cameras. There are some downsides here: Pervasive use of body cameras, for example, increases the surveillance state in general, because wherever there are cops, there are cameras. And police departments should not be saddled with unreasonable policies regarding retention of vast quantities of video for indefinite periods of time. But promoting transparency in every police department is a further step toward separating bad cops from good ones.

3. Proportion and Deliberation. As the Washington Post has noted, while about 1,000 people are shot to death by the police each year, “The overwhelming majority of people killed are armed. Nearly half of all people fatally shot by police are white. Most of these shootings draw little or no attention beyond a news story.” The Post’s own data show that only nine unarmed African Americans were shot and killed by police last year, and the “number of black and unarmed people fatally shot by police has declined since 2015” at a rate faster than the decline among other groups. Heather Mac Donald elaborates, using the Post data:

The police fatally shot nine unarmed blacks and 19 unarmed whites in 2019 . . . down from 38 and 32, respectively, in 2015. . . . In 2018 there were 7,407 black homicide victims. Assuming a comparable number of victims last year, those nine unarmed black victims of police shootings represent 0.1% of all African-Americans killed in 2019. By contrast, a police officer is 18½ times more likely to be killed by a black male than an unarmed black male is to be killed by a police officer.

Shootings are not the only source of death, as the George Floyd case illustrates, but this gives a sense of the scale of the problem, and that is always relevant in crafting solutions. Again, the relatively small number does not mean that people who value human life should conclude there is no problem. But it does suggest that radically altering law-enforcement practices could easily lead to more deaths than it prevents. Seventeen people were killed just this past Sunday in Chicago alone. Withdrawing police protection from our cities bears a very real cost in black lives, too, a cost that far too many progressives are willing to ignore.

For all the hullabaloo about “Defund the Police,” American policing has actually grown more slowly than the population: between 1997 and 2016, the number of full-time law-enforcement officers in the United States increased by 8 percent, while the U.S. population increased by 21 percent. A good deal of experience and data show that regular, visible neighborhood beat cops can improve trust, and clustering of police in high-violence hotspots can meaningfully reduce murders. Hamstringing the ability of police departments to use these kinds of proven tactics is simply sacrificing human lives to score political points.

4. Small Government. Small government has never meant “no government.” Conservatives have long argued that governments that try to do too many things end up doing more of them badly. That should apply to policing as well. The core of criminal law is predatory behavior: murder, rape, robbery, fraud, arson, vandalism. The further we get from those things, the less we should involve the cops. Historically, the laws that have been most easily abused in racially disparate ways are vague, low-level crimes: loitering, jaywalking, disturbance of the peace. On the other hand, a great deal of disturbance of public order comes from the homeless population, many of whom are mentally ill and should be locked up not as criminals but for their own protection. Reducing criminalization of some of these offenses is more workable if cities are not teeming with disturbed street-dwellers.

Policing should also focus on protection, not raising revenue for the government. The broad use of civil-asset forfeitures that were meant to be confined to major criminal cases, busting people for selling single cigarettes, and other forms of “revenue policing” would all have been recognized by the Founding Fathers as excessive uses of government power.

Then there’s drugs. Rolling back the laws on hard drugs would be a mistake, but it’s reasonable to rethink the amount of money, time, and manpower that police departments devote to low-level drug crime. And at a minimum, Congress should give states more leeway to experiment with decriminalizing marijuana, given the thorny conflicts that have developed between state and federal laws on the issue.

Proposals to “demilitarize” the police should be on the table, but they should be carefully designed: There is a big difference between police departments’ having military vehicles and cops wearing riot helmets. Riot gear is, after all, designed to discourage police officers from seeing their guns as the only line of defense against death or severe injury from thrown bricks and bottles.

5. Federalism and Democratic Accountability. Law enforcement is the quintessential local issue, one that affects people and communities directly. There are more than 15,000 police departments in the United States, and the conditions and communities in which they operate vary widely. The federal government can use its economies of scale to study the matter — e.g. by collecting national data on police violence and misconduct — and promote best practices. But one-size-fits-all solutions are apt to misfire and cause more trouble than they solve. Perhaps just as importantly, it’s much easier to get legislation passed in state capitals than it is in today’s Congress.

States have a role to play in supervising local authority. The most obvious ways to do this are to put state attorneys general in charge of police investigations in the first instance — thus removing the inherent conflict of interest that arises when local prosecutors are asked to investigate local cops — and to enact statewide legislation on officer discipline.

Federalism and democratic accountability are connected: When police report to an elected official such as a mayor or sheriff, the voters know who to hold accountable for their behavior, whether that means police overreach or police failure to protect citizens. Democratic proposals to expand the Justice Department’s oversight of local departments are a step in the wrong direction, leaving local voters nobody to complain to who can be held to account at the ballot box.

States can also step in to provide remedies more tailored to specific problems where federal law is an awkward fit. The qualified-immunity debate, for example, has an unreal quality because the Constitution was not actually written as a manual to micromanage local police officers. Federal courts have repeatedly expanded what qualifies as a “constitutional right” against the police, and then turned around and let cops off the hook by admitting that the courts were making the law up in unpredictable ways. Civil or criminal liability for cops, like civil or criminal liability for any citizen, should in the first instance be governed by clear, written rules made by state legislatures, not by common law fashioned by federal courts.

In the words of Edmund Burke, “a state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to preserve.” In that spirit, we should welcome debate about how laws are enforced in America. We have made a lot of progress by not standing still: Violent-crime rates have been greatly reduced in much of the country over the past three decades, for example. Conservatives should wish to preserve those gains in crime-fighting and public safety. Improving accountability for law enforcement is part of how we can do that while promoting respect for limited government and the rule of written law. It’s also the right thing to do.

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