Tough Love for Law Enforcement Requires Reform

Every parent has had to dispense some “tough love” -- a course correction to make sure a child grows up to be the best person possible. The same is true of our criminal justice system.  Over time, getting the results we want sometimes requires a course correction. If we don’t hold police and prosecutors accountable when they err, the public loses confidence in the law enforcement system, making their jobs not only more difficult, but more dangerous as well.

Conservative criminal justice reforms are not about defunding the police or abolishing prisons. Those who swear an oath to protect and serve are heroes.  But one important thing we can do for the people who put their lives on the line every day is to bolster public confidence in law enforcement. Unfortunately, a recent survey of perceptions about our criminal justice system shows that confidence in our police has fallen to the lowest level in two decades. Blind deference to law enforcement by policymakers and judges only makes things worse.  If we are to re-instill faith in the heroes who make up the “thin blue line,” legislators need to change our approach to policing and rein in the excesses that make headlines all too often.

Take qualified immunity, for example. It was created by the Supreme Court to protect police officers from frivolous lawsuits.  However, it has become a shield that regularly prevents real accountability in egregious cases of misconduct. Officers have been given immunity from lawsuits in clear-cut cases of theft, assault, and even death, creating public outrage and cynicism. When citizens cannot hold government officials accountable for credible allegations of wrongdoing, the Constitution becomes just another piece of paper. If that becomes the case, our liberty will exist in name only.        

Civil asset forfeiture is another example of government run amok.  Originally intended to target drug kingpins, asset forfeiture laws are now routinely used against businesses and individual property owners, many of whom are never even charged with a crime.  To do so, all law enforcement needs is “suspicion” that the property is somehow connected to criminal activity.  Even worse, the owners must sue to get their property back and somehow prove a negative -- that the property is “innocent.”  Because these proceeds are poured into government slush funds and used fill budget holes, asset forfeiture has earned the moniker  “policing for profit.”  In 2014, law enforcement seized more property from Americans than burglars stole. A bit of the shine on every badge is worn off when police seize cars or houses from law-abiding property owners, or cash from small businesses.   

Like qualified immunity and asset forfeiture, the idea of mandatory minimum sentences sounded good. Largely the brainchild of Sen. Ted Kennedy (D) and Rep. Charlie Rangel (D), mandatory minimums were intended to make sure judges evenly applied criminal penalties, regardless of race. But mandatory minimums merely take power away from judges and give it to prosecutors.  The result has been an explosion of the incarceration rate with little public safety benefit. Along the way, overincarceration has destroyed countless families and fed a cycle of crime and poverty going from generation to generation. 

Even more disturbing is how mandatory minimums are used to coerce people into taking plea bargains.  Prosecutors routinely threaten to file charges with hefty mandatory minimums to pressure defendants into accepting a plea deal.  If a defendant decides to go to court and is convicted, the so-called “trial penalty” can result in decades behind bars. With their livelihood and families in the hands of overburdened public defenders, even innocent defendants will take the deal. Who wouldn’t accept a five-year plea bargain when facing a twenty-year minimum penalty if convicted? With that kind of power, it should surprise no one that between 94%-97% of all criminal cases end with a plea bargain.

We all want the same thing from our justice system: safety, accountability, transparency, and fairness. But too many judges and legislators refuse to consider common-sense reforms when our justice system overreaches or appears to condone misconduct. Their lack of action merely feeds citizen resentment of police and prosecutors. It is no wonder the number of police officers killed in the line of duty has surged 28% this year.

As a society, we hold people accountable for their behavior through the criminal justice process. But the government must also be held accountable for how it treats its citizens. Anything less than that “tough love” deepens divisions, sows mistrust, and ultimately, does a disservice to those sworn to protect and to serve.

David Safavian is the General Counsel of the American Conservative Union.  Zoe Taylor is with the American Conservative Union Foundation’s Nolan Center for Justice.

Image: mohammed hassan, Pixabay