I spend a lot of time on The Graham Factor tearing down bad left-wing ideas for two reasons. First, Democrats control almost everything that matters when it comes to policing. They control virtually all major city governments, including mayoralties, city councils, and prosecutors’ offices. They control the legal academy and are dominant in the legal profession generally (even prosecutors skew Democratic, and conservative lawyers tend to be libertarians). They dominate academia, including criminology and sociology. Democrats dominate every institutional aspect of policing except policing itself, which remains stubbornly Republican. Realistically, if you want to get anything to get better, Democrats are going to have to do it.
Second, Democrats are the ones who, put bluntly, fucked everything up. In 2014, the incarceration rate was declining, violent crime was declining, public trust in policing was as high as it’s ever been, and policing was an attractive profession. Eight years of “reform” later, murder is up by 40%, police officers are fleeing the job, and fake police “reformers” have (by their own admission!) made no gains in terms of accountability, public trust, or public safety. Republicans don’t do stuff like this. Conservatives leave things alone. It’s the Burkean temperament. If fake police “reformers” had told them “change policing!” they would have just said no. And that would have been better. Not perfect, but definitely better.
So why did this happen? How has the left been able to accumulate so much political power that it was able to seriously damage policing? The answer is going to upset some people: It happened because Republicans suck. That’s why today I’m taking some time to go after bad ideas on the political right.
A serious conversation about public safety requires two serious participants, and the GOP’s positions on public safety and policing are often incoherent. The GOP cannot claim to be outraged over rising crime and support police when it is simultaneously sponsored by business-backed libertarians and shot through with populist paranoia and conspiracy theorizing. GOP incoherence means America lacks a major political party that unequivocally supports public safety and the rule of law.
Corporate-sponsored libertarianism
Conservative elites rely on corporations for funding, which generally means that elite conservatives tend to be libertarians. They also tend to be well-educated members of the laptop class for whom (like their liberal counterparts) physical safety is virtually never a personal concern. These folks work in think tanks, like the Koch brothers’ Cato Institute, that are primarily funded by large corporations. Libertarians tend to oppose regulations and taxes, and law enforcement is the means by which government enforces regulations, so they tend to be anti-law enforcement too.
Radley Balko’s career is fairly illustrative in this regard. Balko now claims the mantle of “expert” on the subject of “police militarization” despite having zero experience or education in the areas of policing, criminology, or law. But Balko got his start working for Cato and writing columns for Fox News, where he lobbied for privatizing social security, rambled on at length about the evils of public education, argued roads should be privately owned, and called lawyers who sue tobacco companies “fascists.” He was opposed to higher alcohol taxes and laws against drunk driving. In short, Balko is a libertarian crank who, by virtue of sharing the left’s anti-police sentiments, has succeeded in laundering himself into the political mainstream.
Balko’s book, Rise of the Warrior Cop, leans heavily into the fake idea that police in America are “militarized.” But while leftists worry about militarized police being used to fight the so-called “War on Drugs” and hurting minorities, Balko was concerned that federal agents might hurt companies while trying to protect consumers and the environment. In 2013, the Wall Street Journal was forced to issue a lengthy correction after publishing an excerpt from Balko’s book, in which he falsely accused the U.S. Fish and Wildlife Service, Consumer Product Safety Commission, and Department of Education of operating “SWAT teams” and claimed they conducted “assault-style raids” on fraudsters and corporations caught violating environmental regulations.
These days leftists and libertarians are friends, but five or six years ago people didn’t hesitate to point out that libertarian advocacy for criminal justice “reform” tends to directly benefit corporate sponsors. The Atlantic noted in 2015:
Charles Koch, the company's chairman and CEO, has said he became interested in criminal-justice reform after a grand jury's 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law. The company spent six years fighting the charges and eventually settled with the government for $10 million.
Unsurprisingly, one of the Kochs’ first priorities when it comes to criminal justice reform is so-called “mens rea reform” — which would make it much harder to prosecute companies and business executives who commit white-collar crimes. Other examples of corporate self-interest in criminal justice reform abound:
Jared Kushner, Trump’s son-in-law, advocated for reducing federal prison sentences after his dad went to prison for violating campaign finance rules.
The “Law Enforcement Action Partnership” and “Filter Mag”, which oppose tobacco regulation and favor hard drug legalization, are funded by tobacco companies including Juul Labs, Altria, and Reynolds American.
Corporate defense lawyers recently latched onto the “abolitionist” movement to call for the total elimination of all corporate criminal law.
Corporate-sponsored libertarianism has real influence on the GOP. In 2013, special agents with the EPA’s law enforcement division inspected a mining site in rural Alaska as “a result of lengthy criminal investigations of miners with a history of non-compliance” with the Clean Water Act. The EPA’s agents apparently did nothing but inspect the site and take water samples while wearing uniforms, bulletproof vests, and sidearms—standard police equipment. But the Koch-sponsored wing of the GOP freaked out. FreedomWorks falsely called it a “SWAT raid”, the Governor of Alaska hired someone to write a $50,000 report, and Congressional Republicans held hysterical hearings about the EPA’s “war on mining.”
Corporate-sponsored libertarianism creates at least three major problems for conservatives and others who actually care about public safety.
First, leftists, liberals, and moderates, who are not stupid, notice the hypocrisy at work here. If armed police are going to arrest shoplifters (and to be clear, they should) there is no reason why they should not also arrest Clean Water Act violators.1 The GOP cannot credibly claim to be the party that supports the rule of law when its leaders and intellectuals freak out every time a favored industry or wealthy donors are subject to a criminal investigation or prosecution.
Second, poverty and the need for robust government services to solve it are very real. I don’t buy that poverty and crime are directly related, but I do believe strong informal social institutions — families, unions, communities, schools, churches, etc. — reduce crime in the long term. When deindustrialization destroys communities and an absence of good jobs makes it impossible for working-class people to support a family on one income, these institutions are severely weakened and violence rises. Also, the things that actually make policing better — like the better training and higher staffing I push for — will cost money, which in turn will have to come from higher taxes on corporations and the wealthy.
Third, the merger of libertarian and liberal ideas — “liberaltarianism” — tends to lead to public safety outcomes that are much worse than either libertarian or liberal ideas in isolation. For example: libertarians don’t want the government to regulate sidewalk vendors. Liberals won’t embrace the abolition of health and safety codes, but still worry police are racists who will target minority vendors. So they join forces, not to roll back regulations, but to get the police out of the business of enforcing them. This is actually worse than just repealing regulations outright, because it leaves you with an overly-complex system of vending rules that nobody enforces.
We see something similar in the realm of mental health calls. No liberals have the stomach for a libertarian version of “liberty” in which mentally ill people are allowed to kill themselves or slowly die on the street. But liberals do agree that police should be out of the mental health business. So we get a liberaltarian “solution”: keep the involuntary commitment laws, but make them unenforceable and immediately release everyone who does get detained. The mentally ill people still suffer and die, but we collectively pretend that we are doing something about it.
Cranks and conspiracies
A related but distinct problem for the GOP is the populist crank. Populist cranks and corporate libertarians used to be more closely aligned (Balko wrote about Ruby Ridge and Waco, which cranks also like to talk about). But the populist cranks have become more skeptical of corporate power in the post-Trump era and are now embarrassing, so now the Reason Magazine crowd avoids them.
The number one contemporary example of populist cranksterism is January 6th and the associated conspiracies. The speed at which the crank realignment2 occurred here was simply astonishing — initially, it was liberals who thought January 6th was a conspiracy. The conspiracy on the left, which spread like wildfire based on out-of-context video clips, was that the U.S. Capitol Police had basically “let” the pro-Trump rioters storm the Capitol. Even high-level officials like Vice President Harris flirted with openly endorsing this idea, as seen in this still-undeleted tweet:
Somehow, in a matter of months, the partisan polarity of this conspiracy totally reversed. Populist cranks on the right now regularly suggest January 6th was a “false flag” operation organized by the FBI. Marjorie Taylor Green now makes visits to the “political prisoners” being held in the DC jail. Somebody named Ray Epps apparently told people to go to the Capitol, and now people are accusing him of being an FBI agent or something. I’m not going to pretend I understand this stuff — it all seems to hinge on a misunderstanding of how “entrapment” law actually works. You can’t indulge in this stuff if you care about the rule of law.
Another good example of this phenomenon is people arguing Derek Chauvin was actually innocent. I have never heard a cop argue (in real life or online) that Chauvin’s use of force against George Floyd was legal. In May of 2020, the National FOP made a statement condemning Chauvin, and his own union in Minneapolis announced they wouldn’t appeal his termination if Chauvin was acquitted. Bob Kroll, then president of the much-hated Minneapolis Police Officers’ Federation, called Chauvin’s actions “horrific.” Uses of force are judged by what an “objectively reasonable” officer would do in the same situation, and actual police overwhelmingly believe that Chauvin’s force was unreasonable — even his own trainee tried to get him to stop.
But lately, I’ve heard other people argue — apparently sincerely — that Chauvin was not guilty. I also met someone in real life who shared this opinion. I thought this was extremely weird — apparently, some people on the far right are now so far right they are to the right of actual cops on criminal justice issues. It turns out someone actually polled this, and about half of Republicans and one-fourth of independent voters said Chauvin was not guilty even after he was convicted. Between June 2020 and March of 2021 (i.e. the start of the trial), the number of people who told a pollster that Chauvin was a murderer dropped by over one-third.
Some of this is (unfortunately) probably just out-and-out racism. I suspect some is a sort of negative polarization: “Wokeness” exploded in 2020, and since Floyd’s death is the main justification for that, some people became skeptical of any narrative that falls under a “BLM/woke” umbrella. Others seem to be influenced by the fact that Floyd was a bad guy with a criminal record — a fact which is irrelevant under these circumstances. Finally, there are people who don’t understand how felony murder works: In Minnesota, if you commit a felony assault (i.e. an unjustified use of force) that is a “substantial cause” of someone’s death, that is (per the jury instructions) felony murder.3 In other words, it doesn’t matter if Floyd was already dying from a fentanyl overdose — so long as Chauvin contributed too, he’s guilty.
Policing does not need Derek Chauvin. The trigger for de-policing in 2020 was not Chauvin’s prosecution — Minneapolis had just sent a cop to prison over a very bad shooting the year prior to Floyd’s death, and there was no rise in crime or de-policing when that happened. The cause of de-policing was the decision by leftists in 2020 to treat every cop as if they are just as bad as Chauvin, when the reality is that most cops are nothing like Chauvin and their uses of force are nothing like the force he used against Floyd. It does nothing to “help” police when someone on the political right obscures that reality by claiming that Chauvin was innocent.
Outside of a few cranks in the House of Representatives like Marjorie Taylor Green and Matt Gaetz, this particular strain of paranoid thinking seems to have a lot less purchase among actual GOP elected officials, but is at least kind of popular among the GOP base. Elected Republicans should ignore those people and try to primary out the kooks who do get elected (as was done to Madison Cawthorne). Many people — including swing voters — care a lot about public safety and effective law enforcement. But it’s hard to be the pro-police, law-and-order party when you also pander to people who peddle conspiracy theories about the FBI.
Time to be serious
I should add an important caveat: Just as many Democrats now oppose bad far-left ideas like defunding the police, it would be unfair to say that all conservatives have been sucked into the kind of stuff I condemn here. Tom Cotton in particular deserves credit for consistently taking a hard line on rioting while also fighting back against libertarian efforts to end qualified immunity.
Many cops will probably support Republicans in state and federal elections simply because the GOP positions itself as the pro-law enforcement party and Democrats don’t really try. I’m likely an outlier in my skepticism of the GOP. Still, I (and perhaps many other normal people who care a lot about public safety) would be more inclined to vote for GOP candidates at the state and federal level if they showed consistent support for the rule of law — even when that support means prosecuting Capitol rioters, corporate fraudsters, and cops like Chauvin. “Backing the blue” when anti-cop activists want to defund police isn’t going to be enough.
Comment Archive (8/1/22):
#1:
My summary on this issue has always been when it comes to policing the left has bad ideas and the right has no ideas.
Reply from another reader:
I think that's a little unfair (even 'steelmanned'), if only because the right _does_ have basically one idea that _is_ actually pretty good:
'Just keeping doing the same thing we've been doing, or, if things are really bad, do what we _used_ to do.'
'Conservatism' is actually _often_ very sensible! Even if that's mostly just because it's almost always easier to fuck something up by changing it at all instead of making a real improvement.
#2:
One of the big problems with capital-L Libertarians is that they are not against pointless and avoidable killings in and of itself but, they are simply against it when the police do it. Balko has defended George Zimmerman and stand your ground laws. Cops killing teens in avoidable situations is bad but, a vigilante killing a teen after provoking a confrontation by stalking and spying on him is apparently fine. These people don't want to end tyranny they simply want to privatize it.
Graham’s reply:
I just noticed Billy Binion ranting on Twitter about Alvin Bragg prosecuting that bodega owner who defended himself (who is, as far as I can tell, innocent.) If Bragg was prosecuting a cop for shooting someone in similar circumstances the libertarians would cheer him on.
The libertarian conceit is that only the state can oppress people. I think that’s an insane take when one surveys the powers that many corporations currently exercise and the impunity street criminals enjoy in many places.
#3:
[E]very time I do a deep dive on incidents involving these groups, there are FBI agents everywhere. The leader of the Proud Boys was an informant. There were almost as many FBI agents in the Whitmer kidnapping group as there were non-FBI knuckleheads. (I want to post NY Times links for both of these, but Substack won’t let me, at least on my phone. I’ve had this problem before. But this can easily be found on Google).
I read Jess Walter’s Ruby Ridge book and there were people joking about the fact that every 2nd or 3rd neo-Nazi was an FBI agent. These groups have been watched closely for years and years, and they don’t tend to be smart guys who make plans quietly. The FBI seems to typically know what they’re up to.
Look, I think the people who believe the FBI was *behind* 1/6 are nuts, but asking “what did the FBI know and when did they know it?” is Accountability 101.
My suspicion is that the FBI thought the protest was no big deal. There was a Reuters story a few months ago (which I also can’t link, unfortunately, but should be easy to find) saying the FBI concluded that there was no conspiracy behind 1/6. So my other suspicion is that they haven’t been questioned because it doesn’t profit Democrats to do so, in any way, and would make the FBI look bad to boot.
Again, I don’t think they planned anything. But every incident involving these groups in the past would suggest that they were aware and probably present, to some degree. Again, Accountability 101. Was the threat assessed properly by the people in charge of doing that?
Graham’s Reply:
I think there's two reasons why you won't get the answers you want, and they're also the reasons why I don't worry about this.
(1) People don't seem to make a distinction between FBI agents and FBI informants. All police use informants, but informants are not law enforcement. In fact most of them are criminals, and you pay them money for info or cut them breaks on minor offenses with the expectation that they probably will continue to do some other minor crime. The classic is flipping drug addicts for info and letting them walk. Of course there are a lot of ways this relationship can go wrong, which is why most agencies including the FBI have guidelines and policy for them. But the bottom line is that just because someone is your snitch doesn't mean you know everything they know. They might be holding out for more money, they might be lying, whatever. Informants are still criminals.
(2) Obviously you can't release information willy-nilly about who's an informant and who isn't, or about what they tell you. Because then your informants end up dead. And this goes double for investigations that are still active.
If you know anything about the self-styled loggers, miners, or ranchers who tend to break environmental laws in the rural American West, you know they are probably a much greater threat to law enforcement than the average urban shoplifter.
Credit for the term “crank realignment” goes to Matt Yglesias.
It seems this rule is something of an odd quirk of Minnesota law. Most states do not allow a conviction for “felony murder” where the only underlying felony is assault.