Redeeming Law and Order

American conservatism is floundering. In the wake of Donald Trump’s tumultuous presidency, the right seems to have lost its sense of direction. Everyone sees that the Republican Party needs to reflect, regroup, and reform its platform. It’s difficult to do when conservatives seem to agree about so little. Conservatives complain about the brokenness of health care, education, entitlement programs and the like, but they have no clear plan for fixing these. There is no longer a consensus view on free markets, limited government, or foreign policy. Trump continues to divide us.

In the midst of the Reaganite rubble, one wall at least still stands. Crime has risen significantly over the past few years, especially in the major cities. Voters are becoming concerned. Most city councils across the nation are dominated by Democrats, whose hands are largely tied in this area, thanks to the dominant influence of social justice activists. Crime control is difficult indeed when party loyalists are determined to condemn the entire criminal justice system for its brutality and systemic racism. For people who lived through the 1980s and 90s, this feels like a clear step backwards. Once famous for its innovating crime control techniques, New York City is now embroiled in controversy over rising gun violence and a controversial bail reform measures.

This could be an excellent opportunity for the Republicans. We’ve seen this movie before. From the 1970’s through the 1990’s, conservatives scored some tremendous victories by championing law and order. Now, as in the 1960’s, the Democrats seem ideologically paralyzed in the face of rising crime. Is it time for a redux of tough-on-crime conservatism?

Already, the table is set. The players are moving to their expected positions. There are things to hope for here, and also things to fear. Law-and-order conservatism had its admirable points, but also many failures. Politically, it was pure gold for the Republicans for many years. Policy-wise, it combined some important gains with regrettable failures. Morally and philosophically, we might award it the bronze, combining some genuinely noble sentiments with errors that did to some extent undermine the long-term efficacy of the entire system. To correct those errors, today’s conservatives must do better. We must approach the issue in a way that balances all the legitimate objectives of a criminal justice system.

Beyond Toughness

Tough-on-crime scored its greatest successes at the ballot box. For decades, it was a central pillar of the “moral majoritarianism” that redrew the electoral map and elevated three Republicans to the White House. Intellectuals sometimes forget how crucial crime was to late 20thcentury Republican success. We love the ideological harmony of the Reaganite “three-legged stool,” which paired somewhat awkwardly with tough-on-crime. It’s pleasant to imagine the weapons turned on our communist enemies, while the home front is prosperous and free.

To voters, the war on drugs and crime was enormously important. More visceral than free enterprise, and closer to home than anti-communism, crime was arguably the most important piece of Richard Nixon’s “Southern strategy.” Ronald Reagan built on those successes, cementing once-Democratic states as a solid component of the Republican coalition. Tough-on-crime scored another victory in 1988, when Michael Dukakis’ presidential hopes foundered on the rocks of the Willie Horton scandal. Horton, a convicted killer, went on a shocking crime spree during his weekend furlough from the Massachusetts state penitentiary. Dukakis was governor at the time, and the Bush campaign capitalized in a big way with their devastating “Weekend Pass” ad, which presented Dukakis as a progressive softy who allowed hardened criminals to terrorize American towns.

Even today, we can see evidence of tough-on-crime’s effectiveness in the political records of President Joe Biden and Vice President Kamala Harris. Both have apologized profusely for their 1990’s efforts to toughen criminal sanctions. This was considered smart politics in the 1990’s, when the Democrats were desperate to weaken the formidable right-wing coalition. Today, those legislative achievements are a skeleton in the presidential closet.

People care about crime. If voters feel unsafe, they will reward the party that seems able to address the problem. Even so, tough-on-crime rhetoric may not land as successfully with today’s voters. Republicans in the 70’s and 80’s liked to present themselves as hardened realists, facing off against starry-eyed liberal naifs. Today’s right prefers to smear progressives as corrupt, calculating oligarchs protecting their bubbles of privilege. Right-wing populists suggest that they are the ones protecting the true interests of the common man, in the face of elite indifference. This can be a powerful message, but within this kind of dialectic, hardline rhetoric may not resonate as effectively as it once did. An unyielding criminal justice system can itself look very much like the face of “elite indifference.” In an obvious sense, the justice system normally is the arm of the state. It is difficult, therefore, to make law and order conservatism the centerpiece of a populist, countercultural platform. This may explain why Trump was not able to exploit last summer’s civil unrest to his electoral advantage.

If crime continues to rise, the right can surely win some ground through a renewed embrace of law and order. A truly successful platform needs more than toughness, however.

Elusive Victories

In one sense at least, tough-on-crime was very good policy. Crime was rising nationwide when law-and-order conservatism came into its own. By the 1990s, those trends had been dramatically reversed. Conservatives promised to make America safer, and they did. Even progressives sometimes acknowledge that tough-on-crime largely achieved its most important goal.

These gains notwithstanding, it seems wrong to say that we “won” the war on drugs and crime. More accurately, law-and-order conservatives arrested a 1960’s crime surge, primarily through aggressive policing and the expanded use of incarceration. This was still an important achievement, but it might have been more lasting if the system had been more successful in the areas of deterrence and rehabilitation.

Prisons are expensive, with costs paid both in money and in warped lives. The same could be said of our ubiquitous SWAT teams and DEA task forces. Crime dropped in the 80’s and 90’s, but so did police accountability, and many low-income neighborhoods developed deeply antagonistic relationships with local law enforcement. In some cases, this created a vicious cycle, with police finding it increasingly difficult to enforce the law in neighborhoods where even law-abiding residents viewed them with hostility. The bitter fruits of that bad blood are still very evident in some American cities.

Incarceration likewise began over time to deliver diminishing returns. Prisons filled, and recidivism rates remained high. Law-and-order conservatives always tried to present incarceration as an effective deterrent to crime, but the evidence suggests otherwise. Prisons sound nightmarish to stable, employed people with happy family lives. In general though, those are not the citizens who need to be deterred from a life of crime. Miserable or antisocial people tend not to view incarceration with the same terror, and in any event, a sizable share of crimes are committed by undisciplined people who are not accustomed to thinking about their long-term futures. Too often, the prison system became a revolving door, with the same people cycling through again and again. It is depressing to recall that there was a time when many conservatives opposed, not just job training, but even addiction treatment programs for prison inmates. Law-and-order conservatism did not begin in such an unforgiving and punitive place. Richard Nixon, in the earlier years of his presidency, seemed genuinely interested in exploring rehabilitative efforts that could supplement more rigorous law enforcement. Over time, those policies got shorter and shorter shrift as the energy shifted to “toughness.”

Conservatives must cultivate an approach to crime that is both tough and fair. If we could do that, law and order might once again be a cornerstone of the Republican platform.

The War on Drugs provides an even more dramatic example of how easily short-term victories can wither, in the absence of long-term plans for cultural rejuvenation. This decades-long effort was not wholly fruitless. It showed some success in ending the crack epidemic of the 80’s, and in curbing methamphetamine use in the 90s and 2000s. Still, it is heartbreaking to recall that there was a time in living memory when people really believed that America could actually win a war against illegal drugs. Today, that war seems to be winding to a quiet end. The drugs won.

Law-and-order conservatism stabilized a nation that seemed to be descending into violence and chaos. With crime rising again, it is reasonable to pull some pages from the old playbook. Even so, we should not forget how easily a war on crime and drugs can morph into a war on addicts and impoverished neighborhoods.

A Path Forward

A balanced response to crime must give due attention to all the legitimate objectives of a criminal justice system: retribution, deterrence, rehabilitation, and the protection of public safety. None of these should be emphasized to the exclusion of others. In many cases, a measure that serves one objective may not be effective at addressing the others. Incarceration, for instance, is very effective for protecting the public from dangerous criminals. It is far less effective as a deterrent, and has serious limitations when it comes to rehabilitation. Those are also important objectives, so a well-balanced justice system must pursue a multifaceted approach. Long prison sentences should in general be reserved for truly dangerous people, while lower-level criminals might benefit from drug courts, restorative justice, or swift and certain sanctions.

It is interesting to note that criminal justice was, for a brief time, almost the only issue in American that could inspire bipartisan cooperation and prudent policy reform. In general, the 2010’s were a time of rising anxiety, increasing polarization, and debilitating Congressional gridlock. In the realm of criminal justice, bipartisan reforms sailed along smoothly, with Texas, Georgia, California, and New Hampshire all grabbing headlines for their noteworthy progress in reducing prison populations, without seeing any increase in crime. Barack Obama prioritized the issue in the late years of his presidency. Then Donald Trump did the same. In the midst of the political maelstrom, criminal justice reformers somehow carved out a quiet eddy for themselves, where they could go about the unglamorous business of making good policy.

Sadly, that Cinderella moment seems to be ending. We don’t have to jettison the gains of the last 20 years, however. We’ve seen this movie before, so we can learn positive and negative lessons from our previous viewing. Conservatives must cultivate an approach to crime that is both tough and fair. If we could do that, law and order might once again be a cornerstone of the Republican platform.

Crime control is inevitably difficult in a free society. When people are free, some will use that freedom badly, and it can be difficult to balance our desire for security against the costs of punitive law enforcement. Preserving order is, nevertheless, a core function of government. If the Democrats are unable to take the duty seriously, the Republicans have little choice but to try to pick up the slack.

There is a time and place for hardline criminal justice, but tough is not enough. Our justice policy also needs to be prudent and fair. There may even be room for mercy. Law and order have been redemptive for conservatives in the past. Let us hope that another such chapter is about to begin.