True Conservatives

One of the most surprising results of the "war on crime" has been to redefine conservatism in the US with support for maximum crime control at any cost to liberty. Many assume that governing through crime has been a political strategy of the right. I argue in the book Governing through Crime that the "war on crime" has been more of a competitive alliance of left and right, combining the right's support for traditional practices (like the death penalty) with the left's support for massive governmental intrusion in the name of social betterment (think prohibition).

In the United Kingdom, where the center-left "New Labour" party has embraced an American style "war on crime," some leaders in the center-right "Conservative" or "Tory" party have begun to rediscover their traditional role as protectors of liberty against government intrusion. In today's NYTimes John F. Burns reports on one Tory leader who took the unusual step of resigning and re-seeking his parliamentary seat in a special election in order to demonstrate public support for his campaign against over-reaching in the name of security (against both crime and terror).

Not long ago, Labor critics in the House of Commons had the habit of calling David Davis a “bruiser.” It was a sobriquet he earned as the Conservative Party’s unyielding point man on issues of law and order and as a proponent of bringing back the death penalty last used in Britain more than 40 years ago.

But as he campaigned around the villages and towns of the rolling Yorkshire countryside near here for a by-election he won Friday, Mr. Davis, 59, was embraced by many as an improbable standard-bearer for traditional British liberties.

In a one-issue campaign, he focused on what he called “the steady, insidious and relentless erosion” of individual freedoms by the Labor government. He denounced as especially threatening a six-week detention power the government plans to give the police to help combat the growing terrorist threat it says Britain faces from an underground network of Islamist extremists.

The bill of particulars Mr. Davis cited in his campaign included other measures adopted by the government in recent years to combat a deteriorating law-and-order situation.

If Senator Barack Obama, who often sounds like New Labour's Tony Blair, should lead the Democrats to a sweeping victory in November, defeated Republicans might want to examine Mr. Davis and his campaign for liberty.

Mayor to Governor: The Crime Path to Power

Thanks to Rutger's political science professor Lisa Miller's scholarship we now understand just how different the information world about crime is around those who exercise power at the city level, and those who govern at the state or federal level. City leaders hear about crime from a wide variety of groups, of whom organized law enforcement is only a small part, and most of these groups are multi-issue organizations focused on local communities. State and federal leaders hear about crime from a limited set of hegemonic groups dominated by organized law enforcement and single issue agenda organizations, like the NRA or the ACLU.

Miller studies legislatures but the same imperatives apply even more to executives. Mayors may choose to make crime a greater (Giuliani) or lesser (Dellums) theme of their administration, but their politics and policies are generally checked by the very complex links that both victims and "criminal" subjects have with the vital interests of the community (moms and dads, siblings, children, cousins, etc.). Governors and Presidents, when they focus on crime, do so at a level of remove from these human complexities that allows them to frame it in simplistic ideological terms. The resulting policies (e.g. 3-Strikes) generally sold at the state level appeal to ordinary voters to imagine themselves in the same terms (rather than as the moms, dads, siblings, children, cousins, etc. of the people who will be victimized in crimes not prevented by harsh symbolic policies, or incarcerated).

If you want to watch this transition in process, keep your eye on SF Mayor Gavin Newsom as he gears us to win in what is certain to be a crowded Democratic field for the next governor of California. In today's headlines, Newsom is bowing to a classic governing through crime newspaper firestorm, in this case about the city's practice of not handing undocumented juvenile drug offenders over to the federal immigration detention and deportation system. More about that controversy later (keep in mind that as the New York Times showed in a recent series, federal immigration is the next US detention human rights scandal, with people dying in a appalling conditions), but Newsom's moves after initially denying any control over the situation, are on the path to crime power that leads to the state house.

San Francisco will shift course and start turning over juvenile illegal immigrants convicted of felonies to federal authorities for possible deportation, Mayor Gavin Newsom said Wednesday as he took the blame for what he conceded was a costly and misguided effort to shield the youths.

Newsom said he hadn't known until recently that the city was keeping the juvenile offenders from being deported as part of its sanctuary-city policy, but he added that "ignorance is no defense."

"All I can say is, I can't explain away the past," Newsom said. "I take responsibility, I take it. We are moving in a different direction."

He is taking personal responsibility, identifying "crime" as the line that separates those whose humanity must be recognized from those who are not recognized as such, and promising exile and boundary enforcing as the methods of securing the community.

The Feds

Of all the bizarre and disturbing aspects to the story widely report in the media yesterday (read Monica Davies reporting in the NYTimes) about the man impersonating a federal officer who led local law enforcement on a wave of house searches and arrests in a Missouri town this spring, the one that haunts me the most is the following:

Those whose homes were searched, though, grumbled about a peculiar change in what they understood — mainly from television — to be the law.

They said the agent, a man some had come to know as “Sergeant Bill,” boasted that he did not need search warrants to enter their homes because he worked for the federal government.

So, thanks to television!, people have a vague understanding that police ought to have a warrant before they could enter a persons home to arrest them or search through their private belongings. That's good, the right to privacy in one's home (at the very least) is guaranteed by something called the Fourth Amendment to the Constitution which provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But what is truly amazing, is the fact that "Sergeant Bill" was able to brush off such reservations by citing his status as a federal agent. Of course for students of constitutional law that is truly ironic, because for decades the 4th Amendment was believed only to apply to the federal government! (It was not until the 1949 case of Wolf v. Colorado that the Supreme Court recognized that that protections of the Amendment applied against state law enforcement officials).

But while Sergeant Bill's brush off makes no constitutional sense, it does resonate deeply with the constitutional deformation that governing through crime has wrought on the American polity. Indeed, the single greatest problem with our 40-year-old "war on crime" is precisely that it has been "led" by the federal government. The feds, who were deliberately deprived of a "police power" by the framers, should by nature have little capacity to set the agenda for states and local communities as they police themselves.

Criminologically, the federal government's take over of crime control practices in America, beginning in the 1960's (and supported by liberals and conservatives) has been a disaster. Almost all crime is local and requires deliberative strategies based on local knowledge. Instead, our crime policy has been set from the federal level where it is most certain to be dominated by lurid ideological images having little real purchase on local conditions. Indeed, the endless focus on drugs, instead of crimes against people and property, which Sergeant Bill was aggressively pursuing, is the primary projection of the federal government which needs the interstate nature of trafficking to justify its ownership of the crime problem.

Stranger Danger v. Infra Danger

Barack Obama has argued that Americans do not deserve "another election governed by fear" and John McCain promises to talk straight to Americans about the risks we face. But how can we tell if we are getting a really new kind of election in America?

I offer today a simple index by which the degree of change in this election might be measured. Start with the premise (for the arguments, see my book, Governing through Crime) that America between 1968 and 2008 became overly obsessed politically with what might be called "stranger danger", i.e., the threat of malevolent unknown actors out there some where who wait to do us harm. For most the last forty years it has been "criminals" (often racialized as Black or Latino) that lurk out there. Since 9/11 "terrorists" (racialized as swarthy Middle Easterners) have to some extent replaced drug dealers and gang members as the most feared "strangers" (but only to an extent, the other still haunts us).

During the same period we systematically have ignored what might be called "infra danger", i.e., the threat posed by ignoring and underfunding our massive dependence on technical systems that require continuous capital investment. Infra danger came to the surface for a moment during the aftermath of Hurricane Katrina in 2005 when the levee system failed New Orleans, only to be replaced quickly by stranger danger as the media spread false reports of rampant violent crime. In January of this year, Mayor Michael Bloomberg of New York, along with Governors, Arnold Schwarzenegger of California, and Edward Rendell of Pennsylvania, joined in a task force aimed to publicizing infra danger (read Ray Rivera's reporting in the NYTimes).

So let me offer a slightly different hope than Senator Obama. Americans do not deserve another election governed by fear (of strangers). We might deserve an election focused on the risks we face from our own failures of governance (like infra structure). So here is the test. When we add up the sound bytes about danger and risk produced by both campaigns and assign them to either the "stranger danger" or the "infra danger" column, how big will the margin for stranger danger be? It is too much to hope for parity or more attention to infra danger, but if the two are even close, we will have had a different kind of election.

Leave No Crime Victim Votes Behind: Willy Horton's Shadow

Anyone who believes that crime and the fear of crime no longer "rules" American society and politics, better keep your eye on the "change" candidate, and what stays the same. The Supreme Court, by a one vote 5-4 majority, maintained a thirty-one year old barrier against expanding the death penalty to crimes where the victim is not killed. The decision, Kennedy v. Louisiana, overturned laws in several states that make capital punishment an option for the rape of a child. Among its first critics were state legislators in several states that have expanded capital punishment to child rape, and Democratic Presidential hopeful, Barack Obama (read the Washington Post coverage of Obama's statement). That's right, Obama, who saw Illinois fatally flawed death penalty up close, thinks murder is just too narrow a category for this worthy exercise of popular sovereignty. Here are the candidates words hot from the pander:

"I have said repeatedly I think the death penalty should be applied in very narrow circumstances, for the most egregious of crimes," said the Illinois senator, speaking to reporters at a hometown press conference. But he added, "I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution."

I'm still voting for Barack, but let's be clear, no part of our political system has been more transformed by the malignant war on crime than the office of president. No contemporary president will lead us out of the valley of governing through crime. Only a popular uprising against this flawed model of governance will lead Barack Obama or John McCain down the path they both know is correct (McCain knows a little something about the flaws of punishment).

Explaining the Dem's Collapse on Surveillance Bill: The Law of Fear

As Dan Eggen and Paul Kane reported in yesterday's Washington Post, Democrats have handed Bush yet another victory in legitimating his approach to the war on terror.

House and Senate leaders agreed yesterday on surveillance legislation that could shield telecommunications companies from privacy lawsuits, handing President Bush one of the last major legislative victories he is likely to achieve.

The agreement extends the government's ability to eavesdrop on espionage and terrorism suspects while effectively providing a legal escape hatch for AT&T, Verizon Communications and other telecom firms. They face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

How can this be? The President is down to his historic low of 26% approval rating. The Supreme Court has just handed the administration its fourth or fifth consecutive loss concerning the Guantanamo side of its war on terror. Barack Obama has won the right to his party's nomination in August by speaking out forcefully against being "governed by fear" and has managed to move ahead by 15 points over McCain the latest Newsweek poll.

So what is it?

1) The Dems are constitutionally spineless

2) They can't stand to jinx their good luck

3) They really believe an inspector general and one more "report" will deter future Presidents from ordering major corporations to betray their custormers (and having them comply).

Sadly, I conclude, its none of the above, but something worst because even harder to change. Its a continuation of the pattern laid down during the 40 year long war on crime. As I explain in chapter 3 of the book version of Governing through Crime, law makers have long come to understand themselves as representing above all crime victims, who as the idealized citizen subjects of our time define the governable interests of the people. As demonstrated in decades of biannual crime bills, Congress in this mode cannot resist the aggressive exertions of the executive so long as they are directed to protecting the people as crime victims against those motivated wrongdoers who seek to victimize them.

While the Bush administration has cynically exploited the idea that the war on terror is not about crime control to confuse the public, they have actually extended the exact same logic as executives of both parties have during the war on crime. So long as we act in the name of preventing violent victimization of the innocent, we can trample on the liberties of the people and any resistance in the name of freedom is simply identification with the wrongdoers.

The other common theme is the ability of the executive to represent judicial functions (the lawsuits here, the criminal trials of the war on crime) as creating conditions that expose Americans to more risk of violence.

If there is hope (and a logic to Barack deciding not to fight this from the floor of the Senate), it lies in the ability of an executive to help break up this circuit of power. As President, Barack Obama could directly terminate this cycle of declining freedom and begin to a agenda of governing that help break Congress out of its representational dead end as the brainless ciphers of crime victims

The Four Horsemen of the Apocalypse

Thats what they called the four most right wing justices of the Supreme Court during the depths of the Great Depression who continued to overturn FDR's economic recovery measures with the help of the swing voter, Justice Roberts. Today's four hard right justices, Scalia, Thomas, Roberts and Alito, deserve that appellation fully after signing onto Justice Scalia's intemperate dissent in yesterday's 5-4 Guantanamo decision BOUMEDIENE v. BUSH. The difference today is that Justice Kennedy, facing no FDR, has proved himself to have a stronger internal rudder of morality and justice.

Justice Scalia, nakedly invoking the murder victim identity that stands at the heart of governing through crime in America, depicts the five majority Justices as direct threats to the biological survival of their fellow citizens.

On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.