an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Christopher Glazek's article "Raise the Crime Rate" challenges recent estimates of crime levels in the US. According to Glazek, crime "has not fallen in the United States;" rather, "it’s been shifted. . . .away from urban centers" and into "a proliferating web of hyperhells." If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the "unbelievable brutality unleashed on kids in for-profit prisons." Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:
Under a practice known as "the Program," guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.
These revelations are among many that vindicate Mike Konczal's important essay "Against Law, For Order." Konczal argues that the latter half of the "law and order" slogan has proven far more important in recent decades than the former:
“Law and order” isn’t just the rallying cry of Southern traditionalists[;] it also forms a core of the neoconservative governance project. Take the influential 1982 Atlantic Monthly essay “Broken Windows” by the neoconservative thinker James Q. Wilson. . . . For Wilson, society took a wrong turn when it viewed the ideal role of policing as detectives solving a crime or a system following clear rules agreed on in advance. The real purpose of the policeman was to preserve order, pushing the limits of his or her authority in an improvisational, eternal combat against an almost self-conscious disorder. . . . The concept of the night watchman is re-purposed: instead of the quiet, passive night watchman looking over the rules of property and law, the government is active, participating, constantly at war with disorder, pushing the laws against its constraints to save the system.
Of course, the ultimate victory in such an ideological struggle is to get rid of nearly all legal constraints on the watchman, as the Supreme Court recently did in a range of situations relating to strip searches after an arrest. As Bernard Harcourt has observed, the Court's concerns with liberty and due process are minimal in that context:
[The Court] allow[s] federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy's view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.
As Aaron Bady observes, "the decision accepts the proposition that the rights you have — that the state must obey — don’t need to wait for some juridical process to determine that you’ve forfeited them, that your actions or your situation require a suspension of your default status as rights-bearing citizen." The ultimate rationale for that position is in turn economic, Bady argues: when the Court calls alternatives unworkable, it essentially laments that protecting liberty is too expensive. It also expresses its profound lack of interest in developing a jurisprudence that might carve out certain basic safeguards for the arrested---a view shared by President Obama's DOJ.
When administrative discretion trumps legal regularity, the usual rationale is either scientific or political. Only the latter appears relevant here; the triumphs of order over law proceed apace with scant empirical backing. As Glenn Loury has said of Wilson's approach, "there is little evidence beyond the anecdotal to show that such 'quality of life' policing actually leads to lower crime," however reliably it reinforces "racial stigmata associated with the institutions of confinement, surveillance, and patrol." Justice Breyer's dissent in the strip search case offers a litany of studies with a simple message: basing strip searches on "individualized reasonable suspicion" would do virtually nothing to undermine the penological and public safety goals that are the ostensible basis of the blanket discretion endorsed by the majority.
Without scientific basis, it is pure political power that explains the repeated triumphs of order over law. The closest most of us will come to arbitrary police authority is the TSA---an agency whose wide discretion appears to be strongly supported by the majority of Americans who don't fly much. Until a majority of Americans is directly affected by imprisonment or strip searches, I expect few of the problems mentioned above to abate, or even to be addressed.