The Politics of Law and Order

A big story going around this last week was the report that 1 in 100 adult Americans is in prison, which is apparently a higher ratio than found in China's authoritarian regime.

I just don't see statistics like this as controversial.

The last few decaces have seen the country law-and-order political movement develop and mature - with state legislatures cracking down with tough sentencing laws - and the numbers are showing the substantial rates of incarceration while crime rates have stabilized.

But I though about the politics of crime a bit more last night, as I was reading Jeffrey Rosen's New York Times commentary, "A Card-Carrying Civil Libertarian." Rosen argues that a Barack Obama presidency would be historic in its commitment to the protection of civil liberties. It turns out that Obama's got a strong record on liberties based on his days as an Illinois state legislature.

Don't get me wrong. There's tremendous criminal injustice in the country, a fact that has historically hit African Americans, so it's good to sort out the legal issues so that all citizens are afforded due process.

But Rosen's piece attacks the tough-on-crime movement simply because more minorities get caught in the dragnet. He picks on Hillary Clinton, suggesting she would be a carbon-copy of her husband, who backed stiffer enforcement during his administration:

The real concern about Hillary Clinton’s record on civil liberties is that her administration would look like that of her husband. Bill Clinton’s presidency had many virtues, but a devotion to civil liberties was not one of them. After the Oklahoma City bombing, the Clinton administration proposed many of the expansions of police power that would end up in the Patriot Act. (They were opposed at the time by the same coalition of civil-libertarian liberals and libertarian conservatives that Mr. Obama has supported.) The Clinton administration’s tough-on-crime policies also contributed to the rising prison population, and to the fact that the United States has a higher incarceration rate than any other country.

Hillary Clinton’s conduct during the Clinton impeachment does not inspire confidence in her respect for privacy. Kathleen Willey, one of the women who accused President Clinton of unwanted advances, charges in a new book that Mrs. Clinton participated in the smear campaigns against her. A federal judge found that the Clinton White House had “committed a criminal violation” of Ms. Willey’s privacy rights by releasing her private letters. (An appellate court later criticized the judge’s “sweeping pronouncements.”)

Whether Hillary Clinton’s administration would, in fact, look like Bill Clinton’s on civil liberties is hard to judge. In many areas, she has demonstrated an impressive commitment. She proposed a privacy bill of rights that would require consumers to “opt in” before their commercial data is shared and would allow them to sue companies for the misuse of data. She has called for the resurrection of a federal “privacy czar” who would balance the privacy costs and benefits of regulations.

She made an eloquent speech in the Senate opposing the suspension of habeas corpus. And she has emphasized the importance of Congressional oversight of executive power, promising as president that she would consider surrendering some of the authority that President Bush unilaterally seized. Clearly, she would be immeasurably better on civil liberties than George W. Bush.

But Mrs. Clinton’s approach to the subject is that of a top-down progressive. Her speeches about privacy suggest that she has boundless faith in the power of experts, judges and ultimately herself to strike the correct balance between privacy and security.
Moreover, the core constituency that cares intensely about civil liberties is a distinct minority — some polls estimate it as around 20 percent of the electorate. A polarizing president, who played primarily to the Democratic base and refused to reach out to conservative libertarians, would have no hope of striking a sensible balance between privacy and security.

This is a standard attack on tough enforcement, not just in the domestic crime arena, but in the war on terror as well, where the Bush administration is alleged to have precipitated the worst crisis in liberties in history.

It's not true, of course (remember the crises of liberties during the Lincoln and Franklin Roosevelt administrations), although the left-wing surrender types aren't going to report the full picture.