Too Big To Jail

Senators Elizabeth Warren and Bernie Sanders, like most progressives, have taken up the populist line that the system is “rigged.” They inveigh against a privileged elite who are not bound by the same rules as the rest of us. In the first Democratic presidential debate, however, Sanders said he was “sick and tired” of hearing about those “damn emails.” Few progressives seemed to notice the contradiction.

Much of the coverage of Hillary Clinton’s latest scandal has been so muddled it borders on malpractice. Calling it an email scandal makes the whole thing sound banal. The relevant context is espionage, which is not something widely understood. John Schindler, an actual expert in counterintelligence who previously worked at the National Security Agency, explained clearly what we “normals” need to understand about our intelligence agencies and their classification systems:

Most, though by no means all, of the Intelligence Community’s output consists of information that’s been purloined one way or the other. As I like to explain to outsiders, the business of any spy agency is learning things that *they are not supposed to know*. Which is really a nice way of saying the core work of every intelligence service is breaking the laws of foreign countries.

How classified any information is derives from a process termed intelligence sources and methods. This is so critical that it’s called “the heart of all intelligence operations” in Washington, DC. All this really means is that *how* intelligence has been obtained determines its classification level, not the information itself.

The same information may reported through different channels at different levels of classification. Schindler gave short summary of these levels here. The level of classification is decided by the agency which produces the intelligence, not its consumer. And the higher the level, the less credible are laments about “overclassification” – especially when made by people who have worked in the federal government and swore to obey the law.

So far, more than a thousand emails Clinton and her staff treated as “unclassified” contained classified information. Of particular concern are those which apparently contained some form of Top Secret intelligence from both the National Security Agency and the Central Intelligence Agency. If any information of this kind was copied and pasted from a separate, intelligence-dedicated system to an unclassified system – and stripped of its markings – then someone committed a felony.

I do not know how this scandal ends, but I expect center-left denials will come at a price. Clever conservatives already have enough material to give progressive populists The Daily Show treatment. In fact, I am surprised there is no video juxtaposing progressive condemnations of the “rigged” system and progressive excuses for Clinton and her staff. Because “different spanks for different ranks” is just another way of saying that some people are too big to jail.

Terror and Liberalism

Islamists are not be an existential threat to the United States. They are, however, an ideological challenge for progressives.

Cultural pluralism is a fact of modern life, but radical deference to other cultures is a choice. Like many political choices, it entails a tradeoff between rival freedoms. Our freedoms, as John Gray said, “are not free-standing absolutes.” They are “fragile constructions that remain intact only under the shelter of state power.”

The progressive narrative in which freedom is advancing throughout the world has left liberal societies unaware of their fragility. Overthrowing despots in the name of freedom, we have ended up facing a situation in which our own freedom is at stake. According to the liberal catechism, freedom is a sacred value, indivisible and overriding, which cannot be compromised. Grandiose theories of human rights have asserted that stringent limitations on state power are a universal requirement of justice. That endemic anarchy can be a more intractable obstacle to civilised existence than many kinds of despotism has been disregarded and passed over as too disturbing to dwell on.

Peace is the precondition of a free society. Its provision is not something no party or movement can afford to neglect:

In recent liberal philosophy, freedom is seen as a fixed system of interlocking and mutually reinforcing rights – the dovetailing liberties of John Rawls, Ronald Dworkin and other liberal legalists. Outside the law courts and the seminar rooms, the reality is continuing conflict. One freedom collides with another and sometimes we have to choose between them. Does it make sense to be uncompromising in protecting privacy, while surrendering the freedom to publish satirical cartoons?

Freedom is not indivisible. Politics is the continuing choice among liberties that comes with the earthy business of rubbing along together. Different faiths, cultures and traditions have to learn to co-exist. Aside from their many benefits, plural societies are an unalterable fact of modern life. But they can be made to work only so long as the state has the means and the will to enforce a common peace. If mainstream parties cannot rise to the challenge, they leave the field open to the far right.

Political failures never occur in a vacuum. When leaders of the progressive left deride even legitimate fears as “racist,” they discredit themselves, and their loss is the nativist right’s gain.

Fortunately, an alternative might be developing. The new book Islam and the Future of Tolerance, which is a dialogue between Sam Harris and Maajid Nawaz, could be its manifesto. A plain-spoken work of candor and moral seriousness, it is well worth your time.

Progressing Beyond Liberal Values

It seems the next generation of egalitarians are progressing beyond liberal values. With their mob shaming of regressive individuals, demands for compulsory re-education, and calls for surveillance systems to report speech crimes, the protests on college campuses across the country have devolved into Maoist psychodramas.

In Wendy Kaminer’s judgment, this illiberal turn on campus began decades ago. Kaminer traced its development from “the feminist anti-porn crusades, the pop-psychology recovery movement and the emergence of multiculturalism on college campuses.”

In the 1980s, law professor Catharine MacKinnon and writer Andrea Dworkin showed the way, popularizing a view of free speech as a barrier to equality. These two impassioned feminists framed pornography – its production, distribution and consumption – as an assault on women. They devised a novel definition of pornography as a violation of women’s civil rights, and championed a model anti-porn ordinance that would authorize civil actions by any woman “aggrieved” by pornography. In 1984, the city of Indianapolis adopted the measure, defining pornography as a “discriminatory practice,” but it was quickly struck down in federal court as unconstitutional. “Indianapolis justifies the ordinance on the ground that pornography affects thoughts,” the court noted. “This is thought control.”

So MacKinnnon and Dworkin lost that battle, but their successors are winning the war. Their view of allegedly offensive or demeaning speech as a civil rights violation, and their conflation of words and actions, have helped shape campus speech and harassment codes and nurtured progressive hostility toward free speech.

The recovery movement, which flourished in the late ’80s and early ’90s, adopted a similarly dire view of unwelcome speech. Words wound, anti-porn feminists and recovering co-dependents agreed. Self-appointed recovery experts, such as the best-selling author John Bradshaw, promoted the belief that most of us are victims of abuse, in one form or another. They broadened the definition of abuse to include a range of common, normal childhood experiences, including being chastised or ignored by your parents on occasion. From this perspective, we are all fragile and easily damaged by presumptively hurtful speech, and censorship looks like a moral necessity.

These ideas were readily absorbed on college campuses embarking on a commendable drive for diversity. Multiculturalists sought to protect historically disadvantaged students from speech considered racist, sexist, homophobic or otherwise discriminatory. Like abuse, oppression was defined broadly. I remember the first time, in the early ’90s, that I heard a Harvard student describe herself as oppressed, as a woman of color. She hadn’t been systematically deprived of fundamental rights and liberties. After all, she’d been admitted to Harvard. But she had been offended and unsettled by certain attitudes and remarks. Did she have good reason to take offense? That was an irrelevant question. Popular therapeutic culture defined verbal “assaults” and other forms of discrimination by the subjective, emotional responses of self-proclaimed victims.

This reliance on subjectivity, Kaminer warned, “is a recipe for arbitrary, discriminatory enforcement practices.” Placing subjective allegations of victimization beyond question “also leads to the presumption of guilt and disregard for due process.” These “feeling realities,” she rightly concluded, “belong in a therapist’s office” – not in laws and regulations.

What happens in American universities is unlikely to stay on campus. If the means of punishment on campus are not available elsewhere, activists will seek creative alternatives. The more indulgence and acquiescence they find, the bolder their efforts may become. And making excuses for the illiberal egalitarians is common, even fashionable, beyond academia.

Fringe Fantasies

Norman Cohn was an astute student of dark and marginal fantasies–marginal, that is, until they became popular manias. In his book Warrant for Genocide: the Myth of the Jewish World-Conspiracy and the Protocols of the Elders of Zion, Cohn said:

[I]t is a great mistake to suppose that the only writers who matter are those whom the educated in their saner moments can take seriously. There exists a subterranean world where pathological fantasies disguised as ideas are churned out by crooks and half-educated fanatics for the benefit of the ignorant and superstitious. There are times when this underworld emerges from the depths and suddenly fascinates, captures, and dominates multitudes of usually sane and responsible people, who thereupon take leave of sanity and responsibility. And it occasionally happens that this underworld becomes a political power and changes the course of history.

When exposed to the ramblings of anarchists and conspiracists, most American pundits are impatient to change the subject – unless histrionic fanatics are clearly linked to more familiar and conventionally partisan opponents. Otherwise, they are ignored as mere trolls, not to be fed. But what may first appear as a high-minded self-restraint can prove to be a slothful self-indulgence.

Eliminate the Shutdown Threat

Two years ago, shutdowns of the federal government were weaponized. One of the few attempts at disarmament was a proposal to make continuing resolutions automatic. The rationale was simple, as David Frum argued back in 2013:

The United States is not the only country to have budget disputes. Other democracies cope with these inevitable disagreements by the simple rule: If no budget can be agreed, simply carry over the previous year’s budget month by month until agreement is ultimately reached. While politicians negotiate, travelers can still renew their passports. Obvious, no? Why not here?

The fact is, most of the time, Americans already do this. Formal budgeting tends to sputter to a halt in periods of divided government. The continuing resolutions that fund the federal government were invented as exactly the kind of work-around that other democracies use. So let’s ensure that the continuing resolutions continue when they are needed most, when the differences seem most acute.

Republican Senator Rob Portman introduced a bill to do exactly that. If no appropriations are made after 120 days, however, it would cut discretionary spending across the board by one percent. For each additional 90 days that passed without action by Congress, an additional one percent would be cut.

This austerity ratchet is a sop to fiscal conservatives, but Republicans are the ones winning elections. And incremental budget cuts as the fiscal year passed would be better than an immediate shutdown.

Democrats may balk at Portman’s tight-fisted bill. But if they fail to come up with anything better, they deserve to share the blame for future shutdowns.

In Defense of Order-Maintenance Policing

Over the last quarter century, violent crime rates fell. Nowhere was this decline more dramatic than in New York City. Franklin Zimring, a data-literate law professor, has studied the city’s achievements for years. Zimring said:

New York not only became safer than any large city in America, it did so while its population grew and its prison population fell.

Statistics illustrate the dramatic “policing difference” enjoyed by New York. While the homicide rate dropped by half in the nine largest cities other than NYC between 1990 and 2009, it dropped by 82 percent here. Rapes dropped 77 percent in New York, compared with a median rate of 49 percent in those other cities.

New York showed larger declines in every major crime, though particularly in robbery, burglary and auto theft. While robberies dropped 49 percent in other major cities, they fell an astounding 84 percent here.

What exactly changed? According to Zimring, the New York Police Department “rapidly expanded the police force and targeted specific crimes in specific areas, like cleaning up outdoor drug markets.” Following a data-centric strategy, police units were sent where their maps showed a concentration of criminal activity. By focusing on such “hot spots,” they diminished the opportunities for predation and reduced crime. In short, crime has proven to be more situational and contingent than many previously thought. Most crime appears to be opportunistic.

Any one of us could be accused of breaking the law, and any one of us could be the victim of criminal predation. A realistic concern for individual liberties, as opposed to a ritualistic one, must address both. Social norms and moral exhortation provide some restraint of despotic tendencies, but these alone are not sufficient. Punitive measures are also necessary, as the astute eighteenth century philosopher Cesare Beccaria said, “which impress themselves directly on the senses and which, by dint of repetition, are constantly present in the mind as a counter-balance to the strong impressions of those self-interested passions which are ranged against the universal good.”

Something like Beccaria’s insight lies behind “broken windows” policing, which is the practice of maintaining order in public spaces. Two proponents of this practice, William Bratton, the New York City police commissioner, and George Kelling, a professor of criminal justice, recently restated their case for a policy that is widely, and often ignorantly, disparaged. Bratton and Kelling said, “in communities contending with high levels of disruption, maintaining order not only improves the quality of life for residents; it also reduces opportunities for more serious crime.” Failure to do so sends a message that a community “cannot or will not control minor crimes, and thus will be unable to deter more serious ones. A neighborhood where minor offenses go unchallenged soon becomes a breeding ground for more serious criminal activity and, ultimately, for violence.”

Bratton and Kelling have insisted for years that order-maintenance policing is not “stop and frisk,” and it is not “zero tolerance.” They also acknowledged that some neighborhoods are singled out for more intervention than others, which they defended:

A small portion of the minority population drives the street crime and disorder in these neighborhoods, victimizing entire communities. In 2013, for example, 92 percent of murder suspects in New York were African-American or Hispanic, as were 97 percent of identified suspects in shooting incidents. One hundred years ago, the perpetrators might have been Irish, Italian, German, and Jewish, but the underlying social conditions and the patterns of crime and disorder would have been similar.

With modern, data-driven policing—exemplified by Compstat, which uses exhaustive crime data and mapping to identify crime trends and hold precinct commanders accountable for their areas—these patterns, not some determination to target minorities, determine law enforcement’s response. That is, when the NYPD analyzes and maps crime and disorder in the city, and then develops its crime-prevention plans and allocates resources to specific neighborhoods, the effort will necessarily target high-crime areas, and those tend to have a preponderance of African-Americans and Hispanics and are usually the poorest neighborhoods in the city. In neighborhoods without high levels of victimization, crime, and disorder, residents maintain order through informal mechanisms and support networks and don’t need to call 311 or 911 regularly for assistance; in these areas, police presence is far less intrusive.

Walking up to a person and pulling a trigger, as as cop-turned-sociologist Peter Moskos said, “is something some people choose to do and others do not. Somehow, lots of poor people—even in Baltimore—manage to live decent and even joyous lives without killing somebody.” It is “a strangely insulting concept,” Moskos said, “that criminals somehow represent the community more than the police.”

For years, the role played by the police in reducing violent crime has been dismissed by activists and academics. Instead, critics cite an aging population, fewer unwanted pregnancies, less use of crack cocaine, the phasing out of lead paint, etc. Other factors probably contributed something to the decline in crime rates, but I find it hard to believe that changes in policing contributed nothing. In fact, there is independent research to support Bratton and Kelling’s claim that policing matters:

Until recently, Broken Windows critics could dismiss New York’s success in fighting crime as anecdotal, suggesting correlation without causation. But in recent years, at least three randomized experiments, published in refereed journals, attest to Broken Windows’ impact on crime. Rutgers criminologist Anthony Braga and his colleagues conducted two field experiments: the first in Jersey City, New Jersey; and the second in Lowell, Massachusetts. In each case, multiple high-crime areas of the city were identified and randomly assigned to experimental and control conditions. Police in the control areas continued routine policing. In the experimental areas, police took a problem-solving approach that, in both cities, involved aggressive order maintenance. Crime declined in the experimental areas at greater rates than in the control areas and was not displaced to adjacent neighborhoods.

In the Netherlands, experimenters took a different approach. Their findings support the central social insight of the Broken Windows theory: that disorder breeds crime. University of Groningen social scientist Kees Keizer and his colleagues conducted six field experiments in which they artificially created opportunities for crime in both orderly and disorderly environments. In one case, they placed an envelope containing visible cash so that it was hanging out of a postbox. The baseline condition was a clean postbox; the experimental condition was a postbox covered with graffiti and surrounded by litter. In the baseline condition, 13 percent of those who passed the postbox stole the money. In the experimental condition, 27 percent stole the money. The other five experiments had similar outcomes.

Better policing can be an alternative to, rather than a source of, mass incarceration. “Imprisonment in New York State penitentiaries has declined by 25 percent since 2000,” Bratton and Kelling noted, “driven by a 69 percent decline in the number of New York City court commitments. Likewise, the Gotham jail population has declined 45 percent since 1992.” Fewer crimes committed means fewer people sent to jail or prison. “Young men may be receiving summonses and desk-appearance tickets for quality-of-life misdemeanors, but early and swift intervention has likely kept some of them from more serious criminal behavior that would result in lengthy incarceration.”

Apart from the deterrent effect that minor arrests may have on individual offenders, the management of public spaces to reduce disorderly behavior also lessens daily opportunities for crime. Just as disorder encourages crime, order breeds more order. As bullies and shooters get driven off street corners and the risks of being killed or terrorized diminish, the law-abiding community reemerges and starts to exert the kind of informal social control common to more prosperous neighborhoods. In these transformed public spaces, people—especially young people—are subject to more restraint and are less likely to wind up in jail. It’s important to note, too, that quality-of-life arrests represent only a portion of the overall total of misdemeanor arrests in the city. About 35 percent of misdemeanor arrests in New York City are for assault and larceny—crimes that most people would not consider minor. Traffic offenses account for 16 percent. Another 12 percent are for theft of service in the subway (fare jumping) and frauds involving MetroCards. Steady increases in these categories have been primary factors behind rising misdemeanor arrests in recent years. Taken together, traffic-related offenses, fare jumping, and crimes against persons, including domestic violence and theft of smartphones and other electronic equipment, account for 63 percent of all misdemeanor arrests in New York City. Broken Windows critics tend to overlook the fact that fewer than 10 percent of misdemeanor arrestees, of any type, are actually sentenced to jail time in New York City, and few of those for Broken Windows offenses.

Bratton and Kelling concede that some misdemeanor arrests, like for possession of small amounts of marijuana, are “unnecessary and of limited utility.” They also recognize that there are other cases where “a summons could prove just as effective a deterrent as an arrest.” Efficient penalties should be the policy goal, not theatrical severity.

Make no mistake, there should be no impunity for police officers who abuse their authority. When an officer harms or kills a suspect who posed no plausible threat to anyone’s life, they should be held to account (with due process, not by vigilante fanatics). But there can be no common cause between liberals and police abolitionists.

David Frum had a sage warning to overzealous reformers. “The first task of government is to protect the lives and property of citizens. Governments that cannot or will not perform that task forfeit their legitimacy—as will, by the way, any cause or movement that argues that citizens must accept a higher risk of violence or robbery as their contribution to somebody else’s ideal of justice.” Frum and I may not agree on whether to legalize marijuana or how far incarceration reform should go, but he speaks to something that no liberal can afford to forget. In most people’s ideal of justice, freedom from murder and predation is not negotiable.

UPDATE (August 26, 2015): Criminologist William Sousa argued that order-maintenance policing “should encourage proper discretion on the part of officers.” Many minor offenses can be handled informally, and arrests should be the last resort.

In a pithy summary of what he meant by “broken windows,” George Kelling said, “small things matter in a community and, if nothing is done about them, they can lead to worse things.” Kelling attributed his own views on “the importance of maintaining order” to his research on police foot patrol:

Starting in the early 1970s, in churches, social centers, living rooms, and walking the streets, I listened to citizens talk about their problems and demand action. If you asked them to list their five greatest concerns, at least three, but more likely four, would be “minor problems:” graffiti, youths drinking in parks, “homeless” peeing on their stoops, prostitutes attempting to hustle fathers in front of their children, “johns” hustling their teen age daughters, abandoned homes, unkempt properties, and so on. These complaints came not from white suburban or middle class areas, but from poor residents, usually minorities, in the heart of inner cities.

Kelling insisted that community policing is a necessary compliment to the maintenance of order. He also said, in a democracy, the responsibility for maintaining order is a shared one between police and citizens.

Hayek’s Progressive Hubris

There is a crippling hubris in Friedrich Hayek’s political project. It was explained well by John Gray:

Keynes’s own experience told against Hayek’s theories. As one of the 20th century’s most successful speculative investors, playing the markets on behalf of his college from a phone at his bedside before he got up for the day, he understood—in a way that the inveterately professorial Hayek did not—the ineradicable uncertainty of economic life. As a member of the British delegation at the Paris Peace Conference in 1919, Keynes had been horrified at the punitive conditions imposed by the Allies, which he forecast would destroy the German economy and lead to an upheaval that would “submerge civilisation itself”. Keynes had an acute sense of the risks posed to social stability by misguided economic policies. In contrast, Hayek consistently ignored these hazards.

Hayek’s blind spot with regard to politics was clear in the early 1980s when the first Thatcher government, in an attempt to reduce inflation and bring the public finances closer to a balanced budget, was raising interest rates and cutting public spending. As he had done during the 1930s, Hayek attacked these policies as not being severe enough. It would be better, he told me in a conversation we had around this time, if Thatcher imposed a more drastic contraction on the economy so that the wage-setting power of the trade unions could be broken. He appeared unfazed by unemployment, which was already higher (more than three million people) than at any time since the 1930s, and would rise much further if his recommendations were accepted.


Though he witnessed at first hand the collapse of liberal civilisation in interwar Europe, Hayek had little sense of the fragility of freedom. He observed how the Habsburg regime was destroyed, first by war and economic ruin and then by nationalism, but his response was to look for what he called in his book Individualism and Economic Order (1949) “a permanent legal framework”, which could serve as a guarantor of liberty in the economy and society. Here Hayek disregarded the principal lesson of the interwar years, which is that a liberal regime cannot be secured by legal diktat.

Geopolitical conflict and war, economic upheavals and new social movements have repeatedly damaged or destroyed liberal regimes. No ideal constitution can overcome the permanent threats to liberal values.

Yet throughout his writings Hayek invoked the mirage of a legal order in which vital freedoms are protected by being insulated from the political process. Something like this protection was provided by the Austro-Hungarian empire during the reign of the emperor Franz Joseph, and it is almost as if Hayek were trying to reconstitute the Habsburg realm in a new form that would last for ever.

The same objection could be made against what Gray called “anti-political liberalism,” which is “the ruling illusion of the current generation of progressive thinkers.” Gray made this argument (and convinced me) in his book Two Faces of Liberalism. If you want to know why the tag line for this blog is “liberal, but not progressive,” read his book.