The problem with ‘law and order’ approach to criminal justice
To hear Attorney General William Barr and others hostile to recent reforms tell it, the two are incompatible. In their eyes, “tolerance” is a dirty word, and criminal justice is a zero-sum battle between law enforcement and “criminal predators.” This makes for an enthralling story. Too bad it’s fiction.
While “law and order” rhetoric has frequently served as little more than a political dog whistle, to the extent that it implicates actual policy, the position rests on two beliefs. The first is that the rules ought to be inviolate and the consequences for breaking them certain — this is the “law” half of the equation. The second is that public safety should be the paramount concern of the criminal justice system, which represents the “order” half.
But even if we limit ourselves to this narrow perspective, reform is not the boogeyman that the “tough on crime” crowd fears it to be. Indeed, far from undermining law and order, reform tends to enhance both.
Of late, reform-minded district attorneys willing to revisit their charging policies to deemphasize the prosecution of low-level offenses have drawn the special ire of anti-reformers. Opponents castigate these moves as an affront to the law.
The law, as they are wont to tell us, is, after all, the law.
Except that it’s not. In reality, both life and the law are messy and complicated. The criminality of any given conduct is always subject to a judgment call by police and prosecutors. For example, what exactly makes an instance of poor driving qualify as “reckless?”
Further, we expect, and indeed, want, these officials to exercise discretion, too much behavior is potentially criminal for them to do otherwise. Law enforcement acknowledges this fact every day by handing out stern warnings instead of arrests and by allowing people to make up for aberrant mistakes outside of the court system through avenues such as community service.
By announcing policies that favor alternatives to prosecution for low-level offenses, reformers are therefore not really doing anything that is not already being done on a micro level across the country. Such pronouncements simply make these private judgments public and apply them equally across the board.
This adds transparency and consistency, two hallmarks of good law, to the process, while allowing law enforcement to redirect precious resources and personnel from nonviolent misdemeanors to more serious offenses. This is a boon for both public safety and law and order.
Similarly, reformers are wise to consider using money bail and pretrial detention more sparingly, and policies calling for their regular use are not the tough defenses of law and order that they may appear to be. Unwarranted pretrial detentions, especially those reflecting financial status rather than actual risk, fly in the face of our legal presumption of innocence. They can also harm public safety: Detaining a low-risk individual before trial can increase the odds that the individual will commit a new crime upon release.
Likewise, approaching sentencing and prison conditions with an eye toward their effect on incarcerated individuals is not the wanton jailbreak or coddling of criminals that detractors claim.
The overwhelming majority of incarcerated individuals will return to our communities one day. One need not feel any sympathy toward them to recognize that how we treat them while incarcerated will shape how they act after release. The application of draconian sentences and harsh conditions may feel like a righteous response to a violation of public trust, but it often just helps set up a future one. It is not always easy to let the need for rehabilitation rather than the desire to punish guide decisions, but it is the only way to secure long-term fidelity to the law and improved public order.
In the end, the choice is not really one between law and order and criminal justice reform. The two actually go hand in hand, and if Barr and his ilk wish to actually walk the walk rather than simply talk the talk on law and order, they might want to take a page or two out of reformers’ playbook instead of trying to rip it up.
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