Monday, September 8, 2014

Rand Paul: The Prison Reform Candidate?

Earlier in the summer, when the unrest in Ferguson, MO was beginning in earnest, I recall seeing at least two different commentators make the same point about the Republican response to these events. Namely, they argued that this response was surprisingly favorable to the protestors in Ferguson, given what has been standard GOP rhetoric on race, crime, and law enforcement since at least 1968. Could it be, they queried, that something fundamental has changed in the Republican stance on these issues in the last few years? First it was Peter Beinart in The Atlantic who made the suggestion, then I saw Thomas Edsall in the New York Times saying something similar shortly thereafter. Evidently, conventional wisdom was flying into formation at light speed.

They say that time slows down when you travel near the speed of light -- which is a good thing, since clearly, we all needed more time to think this one out. Beinart and Edsall's suggestion is an intriguing one--  probably even a tantalizing one for many people (though not for me -- I like my Republicans unambiguously evil, thank you very much), but what is it actually based on? Beinart cites Rand Paul on the subject of the Ferguson unrest, and one has to admit, Paul doesn't sound here like any Nixon-era "law and order" conservative. “[W]e must demilitarize the police," Beinart quotes him as saying, and then: "our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences."  Rand Paul enjoys pride of place in Edsall's analysis too, though Edsall finds at least two other examples of the phenomenon to back him up.

Intriguing, for sure. But there is a serious and obvious problem with using Rand Paul as representative of anything other than himself.  I don't deny that he is an interesting, even likable figure at times. But what makes him interesting-- what makes both the Pauls interesting, in fact, both père and fils -- is precisely that they say things that no other politician would ever say. This very interesting-ness is also what ensures that neither of them will ever become president or win a national primary.

The Pauls, for all their faults, think like intellectuals, rather than like politicians. I do not mean by this to compliment their intelligence, which may be minimal (which may, in fact, pale in comparison to the cunning of the most illiterate state representative who knows how to get votes).  I just mean that they adopt political positions based on whether or not they can fit them into some larger philosophical scheme, and not purely based on whether they will prove expedient. So of course Rand Paul, with his thoroughgoing libertarianism, is going to take a line in opposition to the expansiveness of our current prison system-- just as he has been fairly consistent in his opposition to military intervention and the violation of civil liberties in the War on Terror.

I take it, however, that Beinart and Edsall's point is not that there is anything new or astonishing in Paul's words.  What they regard as the new phenomenon, rather, is that the rest of the GOP seems to be condoning his stance, or at least keeping quiet about it. There has been unusually little bloodthirsty right-wing tub-thumping on the subject of Ferguson. No fools are rushing in where the angels have already tread.

Beinart concludes from this that something fundamental has changed in American politics-- there is just not the same kind of political capital to be wrung out of the "tough on crime" message today, he insists, that there was twenty years ago. This is so, says Beinart, for the simple reason that crime rates have fallen dramatically since the '90s. Thus, GOP candidates can afford to speak critically about our criminal justice system, and possibly attract thereby some black and hispanic voters to their cause, without being punished for it by their base in the primaries. (Beinart aptly notes, by the way, that a similar leeway has not been granted to Republican candidates on immigration. There, GOP primaries still tend to flay candidates who haven't hewed to the strict anti-immigrant line).

In some ways, Beinart's point can't be denied. It is clearly true that fear of violent crime plays a much less prominent role in our politics than it did ca. 1988. What is more implausible, though, is his contention that the GOP is now poised to pursue substantially different policies on crime than it has done in the past, or that it will make a sustained effort to win over African American voters by doing so. What seems to me the least convincing line in the whole piece is the following, penultimate one: "Today, demographic change is making some conservative Republicans desperate enough to accept Paul’s embrace of policies that make them uncomfortable."  Fat chance.

There is another way of explaining the fact that Paul made his comments and the rest of the GOP is not shrilling out condemnation of him for it -- one that is much simpler, if more cynical, than Beinart's. This is the fact that the GOP -- just like the Democratic Party -- is most receptive to libertarianism when it is out of power in the White House, and it sounds most in favor of "law and order" when it is in power there. Remember that hawkish neoconservatism was ascendent in the Republican party when Bush was in the White House, and there was very little opposition from Bush's own party to his expansion of presidential powers to abusive extremes. Now that Bush is gone, however, neoconservatism is dying, and large sections of the GOP have retreated to isolationism and to an almost insurrectionary attitude to the federal government.

This point is an old and familiar one-- I saw it repeated most recently in an article by Michael Ignatieff.  The logic of it is simple: Republicans and Democrats alike seek to expand the power of the executive branch so long as they are in control of it. When they are not, they tend to favor the judicial and legislative branches as checks on its authority.

The same basic phenomenon is also visible in the seesaw of rhetoric about crime. I remember seeing an old review in an issue of Commentary of Jessica Mitford's book Kind and Unusual Punishment. The review clearly took issue with Mitford's radical approach to prison abolition, yet it also took it for granted that conservatives at the time (mid-'70s) would share some of her skepticism towards the existing prison system. This was so for the usual libertarian reasons -- prisons, the author pointed out, were large, centralized public institutions, funded by tax dollars, and therefore just the sort of thing that conservatives despise.

But of course, this review, and the attitudes it assumed on the part of its readers, did not prevent the GOP from becoming the quintessentially "tough on crime" party in the next four or five national elections. It didn't prevent the Willie Horton affair or the Kitty Dukakis incident. And neither of these events, in turn, (nor the outrage from Democrats they triggered), prevented Bill Clinton from developing a truly callous stance on crime as a candidate and as president-- shown, for instance, in the sick political calculus that motivated the execution of Ricky Ray Rector (see Beinart).

Beinart is aware of all this history, and guides us skillfully through it. Yet he insists the best explanation for it is simply that voters in those years rewarded candidates who pursued harsh crime policies and punished those who didn't, so politicians in both parties fell into line.

I have no doubt, again, that this is mostly true. But I also think that both parties tend to expand the prerogatives of law enforcement and executive power at all levels of government, so long as they are in the executive seat, and resent them so long as they are not. Thus, politicians come and go, but the prison system has gotten bigger and bigger.

This is the primary reason for my skepticism toward the claim that we are going to see any real shift in GOP crime policy in the years ahead. The situation we are in now is not so fundamentally new as that. From William F. Buckley on, conservative pundits throughout recent history have at times taken a more libertarian position on prisons, drug policy etc. (whether this necessarily constitutes a more "lenient" position is yet another issue-- our modern private prisons have shown themselves, as anyone might have predicted, to be as expansionary and abusive, if not more so, as our public ones)-- but this has not served to reverse the underlying trend toward larger prisons, longer sentences, and harsher penalties under Republican and Democratic administrations.

If anything, in fact, the decline of crime rates in the U.S. may have led voters to conclude that the justice system is working very well and ought to be kept as it is.  (When, of course, it is not working well, at least not for the people in prison, and the decline in crime can be attributed to factors other than the growth of the prison population.)

I am even more skeptical, meanwhile, that Rand Paul's rhetoric is going to win him the support of black, hispanic, or Native American voters. After all, Paul has been known before to expound racial egalitarianism when it suits the libertarian agenda (and I think his words on these occasions are sincere, because Paul is a sincere libertarian)-- yet any goodwill he might generate among minority voters on such occasions is generally quickly dispelled, once the other side of his agenda-- the side that wants to gouge food stamps, say-- makes an appearance. Then Paul's ignorance of the problems such voters face, as well as his hostility to the programs on which many people in their communities depend to survive, become all too apparent.

I'm thinking specifically of a story from 2011 that I unearthed in the course of some unrelated reading. Paul that year was busy calling for the elimination of the Bureau of Indian Affairs (BIA), which he charged with corruption and mismanagement. I'm sure that Paul at the time viewed his words on the subject as romantically anti-colonialist; perhaps he even thought he was affirming a principle of tribal sovereignty. But whatever his intentions, his ignorance of the actual issues at stake deeply alienated people in indigenous communities. The first and most obvious problem with Paul's proposal was that the BIA provides public services on reservations, such as health care, that many people depend on to live. More importantly, as an article in Indian Country pointed out, it provides these services not only for the usual reasons that federal agencies provide services to people, but also-- and primarily -- because it is obliged to do so, under long-standing treaty provisions. The author of the article reminds us that BIA services exist in part as a way of compensating native tribes (inadequately, of course) for the fact that they were compelled to cede land to the United States. Paul's stance therefore amounted to the claim that he would like to abrogate all existing treaties with the Indian tribes. This would take us back to the wildly destructive "termination" policies of the 1950s -- back, in another sense, to the even longer history of broken promises and perfidy on the part of the US government in its treatment of the Indians.

The irony is that the BIA is not an especially trusted institution among Native Americans, to put it mildly, yet it is better than Paul's incredibly arrogant and dogmatic proposal. As the Indian Country article puts it: "One of the cruel twists here is that Indians feel forced to defend agencies that have sometimes betrayed them—it was the BIA  that carried out those termination policy efforts. Some Indians have even called for abolishment of the BIA—but only with a greater remedy for Indians in mind."

Rand Paul, then, is not a likely candidate to garner black, hispanic, or Native American votes. Nor is he a friend to any particular ethnic minority. He is a libertarian, and if you think that libertarianism will be good for minority communities in the U.S., then you are free to vote for him. But most people in those communities have had chances before to vote for libertarian policies, and they have generally refused to do so. I don't think anything will be different in the next election, even in the unlikely case that Paul becomes the GOP candidate.

If I sound pessimistic and cynical in this post, it is because that is how I feel -- at least toward the prospect of mainstream politicians adopting a fundamentally new set of crime policies in the immediate future. Lest I am accused of partisanship, let me say that I don't think Hillary Clinton or any other plausible Democratic candidate for 2016 will be any better than the GOP in this regard-- she or he might in fact be worse. If there is going to be movement toward prison reform (and I think there could be, or is already) it's not going to come from these quarters.

My dark assessment comes in part from being a bystander to one of the saddest lost opportunities of the past summer. I suspect you remember, as I do, that there were three major botched executions in the United States last year that made national headlines -- Joseph Wood in Arizona, Dennis McGuire in Ohio and Clayton Lockett in Oklahoma. After each incident, the media assured us that it was bound to provoke a "renewed national conversation" about the use of the death penalty. But did it, in any of the three cases? If such a conversation did take place, I was not privy to it.

If our country cannot grasp that it is wrong to take the lives of people who have already been jailed and thus rendered helpless and at the mercy of the state, I don't have much hope in the immediate future for the robust success of the prison reform agenda. If we don't even recognize that people in prison have an absolute right to life, we are not likely to begin treating them as human beings in any other regard. Until something changes here, the words of politicians of either party mean very little.

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