I occasionally read liberal criminal law blogs to see which aspect of Amerika, a/k/a the Great Satan, deconstructionist legal thinking is criticizing at the moment. A defense-oriented blog called Simple Justice recently had this entry to admonish FBI Director Comey for his "chill wind" remarks I blogged about here.
The point of the entry was that, as Comey of all people should know, the police should expect and receive thorough public scrutiny, since they are bound by the Constitution, law and basic notions of decency. (Of course, if there is any fair-minded person who disagrees with that, I haven't heard about it).
The more difficult question arises when scrutiny becomes bansheeism, and criticism of police behavior adopts an impenetrable presumption of malice, as it did, for example, in the Ferguson shooting. It simply made no difference that, upon actual investigation, it became clear that Officer Darren Wilson defended himself with the same legal force almost anyone would have used in the same circumstances. He was a cop, he was white, his assailant was black, and that was that. The loudest reincarnation of the Cops-are-Nazis movement was hatched from a pack of lies. But that's their story and they're sticking to it. If you dissent, you're a racist.
I was thus interested in a comment to the Simple Justice entry which states (edited for diction):
What to make of this?[A]dditional scrutiny and criticism of police officers in the wake of highly publicized episodes of police brutality may have led to an increase in violent crime in some cities as officers have become less aggressive. If the cops have become hesitant to do their jobs in the wake of people being mad when they find out cops are being violent thugs, then that suggests, to me at least, that the cops don't think they can do their jobs without being violent thugs.
And if that is the case, maybe higher crime is the price we pay for cops not being violent thugs. Frankly, I'm OK with that.
The obvious thing that strikes you is the effortless equation of being a "violent thug" with cops' "doing their jobs." I see similar equivalence all over defense blogs, which is one reason I read them less often. If that is what these people actually think, there is insufficient common ground to have a discussion worth the time.
The second thing that struck me is the similar equation of resolute scrutiny of police work with the sort of "scrutiny" that found its most succinct expression in, "Pigs in a blanket, fry 'em like bacon." This was the chant of self-appointed police "scrutinizers" a few hours after the ambush-murder of a white sheriff's deputy, Darren Goforth, by a black career criminal.
There is an influential segment of both the media and legal academia that wants, not scrutiny of the police, but simply a take-down. Facts don't matter, and will not be allowed to matter. Where it starts and where it stops is with the Ideology of Grievance.
The third and most interesting aspect of the comment was its suggestion that society should, in fact, accept higher crime if that is the price to be paid for restraining police misbehavior. That, I think, is at least a legitimate question.
Getting an answer starts with an assessment of what police behavior actually is, and whether we are talking about aggregate behavior or a few individual instances. In the latter case, it seems obvious that it would be foolhardy to accept higher crime throughout society because of an individual episode, or several episodes, of excessive use of force.
Whether, in the aggregate, police so frequently use excessive force that a system-wide curbing is prudent is, as noted, at least a fair question. And rather than trying to set forth an answer in a blog post (it would take something the length of a law review article), I'll be content to say just two things.
First, I congratulate the Simple Justice commenter for recognizing the concept of trade-off's: That if we act to achieve one desirable thing (less unjustified use of force), there may be a price to be paid in sacrificing a different desirable thing (low crime rates). You'd think that any minimally educated person would understand the concept of trade-off's, but I am constantly amazed at how often this does not happen.
Second, we need to pay more careful attention to a pair of other things -- (1) the law of unintended consequences, and (2) the group from whom the price of reform will actually be exacted.
When we adopt rules to curb unjustified use of force, the certain, though unintended, consequence will be to curb justified use of force as well, since the line between the one and the other is not inevitably clear to very smart lawyers and judges with time to reflect, and still less to a cop who has to make a split-second decision with imperfect (to say the least) information. The failure to use justified force can have catastrophic consequences, both for the cop and for bystanders.
Lastly, we need to ask who will wind up paying the price if, as a result of more restraints on police work, crime rates go back up. It surely won't be the police. If anything, when crime increases, the public will demand hiring more police and giving overtime to those presently on the force.
No, when crime spikes, the people who'll pay the price are the same ones we see paying the price right now, as (for the same or similar reasons) crime is already going up in Baltimore, St. Louis, and dozens of cities across the country. The people who get hurt first and worst are minorities, mostly African American.
We need to think about whether, in trying to solve the problem of system-related harm, we'll wind up making it worse.
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