The Libertarian vs. Conservative Impulses in G.O.P. Policy on Crime

In 2018 President Donald Trump signed the First Step Act, a law intended to improve prison conditions and get more people out of the federal system sooner. He did so at a time in which criminal justice reform was a rising concern among conservatives and top Republicans. But five years later, many conservatives seem to have rapidly changed direction, fighting against marijuana legalization and urging stricter penalties and an end to bail-reform practices.

The shift represents to me another battle in the long war over criminal justice reform on the right, between advocates for reform at the local, state and federal level and Republicans who argue that the answer is to get “tougher” on crime (and criminals). But what does that mean for conservative policymakers, criminal-justice-reform advocates and the rest of us? I spoke with Charles Fain Lehman, a fellow at the right-leaning Manhattan Institute — who argues for a bigger, more federalized response to crime using “sentinel cities” to collect crime data — about the changes in the right’s politics on the issue over the last decade.

This interview, which has been edited for length and clarity, is part of an Opinion Q. and A. series exploring modern conservatism today, its influence in society and politics and how and why it differs (and doesn’t) from the conservative movement that most Americans thought they knew.

Jane Coaston: There seem to be two schools of conservative thought on criminal justice. One I would call Tom Cottonism and the other I’d call Koch brothersism. Tom Cottonism, as defined by his view that there aren’t enough people in jail. Koch brothersism, as defined by a more libertarian approach and a belief in the prospect of criminal justice reform, particularly on the sentencing end. How did the latter emerge? How did the pro-criminal-justice reform right emerge?

Charles Fain Lehman: One reason is what appeared to be a durable decline in crime and violence in particular. There’s this dramatic reduction and everyone said, “Well, things are pretty good right now. We could tolerate a little bit of a reduction on the margins in the use of the criminal justice system.”

And then this overlapped with an ideological shift, right? You can’t get criminal justice reform without the libertarian movement, the Dr. Ron Paul movement. If you need to be making arguments about fiscal stability and austerity in the wake of the Great Recession, saying that we’re going to reduce incarceration — and that’s going to be a huge cost savings — ends up being both generically persuasive and also very conservative. The libertarian movement has been the weird cousin of the conservative movement for 70 years. And the question is just like, why was the moment ripe in the mid 2000s for that type of influence? I think the answer is basically: Public safety was pretty good, and we were in a dire fiscal position and de-carceration seems like a way to save money.

Coaston: What do you think the influence of libertarian views on criminal justice reform has been on the right? There’s been a push by some on the right, including some people who are running for president, to dismantle multiple federal policing agencies. The Bureau of Alcohol, Tobacco, Firearms and Explosives, for example.

Lehman: You can get this sometimes bizarre double think on policing. There’s a way to speak to conservatives and say, “I’m very skeptical of the state. I’m skeptical of state power, skeptical of state abuse. Stop sending cops in to force me to get a vaccine.” Or whatever. I’m sure there’s people who tweet like that. And at the same time, “No, we need to back the blue. We believe in public safety, we believe in strong enforcement.” That is an intrinsic tension.

I don’t have strong opinions on, for example, whether the F.B.I. is systematically bad or systematically good. I bluntly don’t think people who are calling for the dismantling of the F.B.I. are making a persuasive case that it is systematically bad, as opposed to engaging in some actions that they don’t like. A lot of what the federal criminal justice system does is very boring day-to-day enforcement stuff that is extraordinarily important for public safety, public well-being.

We can talk about dismantling the F.B.I. all we want, but a lot of what the F.B.I. does is provide supplemental support for state and local government. If you profess a belief as a conservative that law enforcement is good and important, you should understand that these agencies are doing the same stuff.

Coaston: Drug policy has been an issue on which many people have changed their minds, particularly with regard to marijuana. About 70 percent of Americans are supportive of legalization. Why do you think that happened?

Lehman: Americans are really bad at doing things halfway. If you look at the history of drugs in the United States, we go through periods of abstinence and periods of excess. Through the ’60s and early ’70s, we went through a period of excess. We consumed huge quantities of drugs, not just marijuana, not just psychedelics. Large quantities of amphetamine, cocaine, often to substantial social harm. Then we went through a period of aggressive social abstinence. We did what I think many Americans today regard as: We went too far in that direction.

[Tracking drug use in the United States is complicated in part because it is often illegal, and may differ from popular conception of different eras. In the late 1960s, for instance, only 4 percent of American adults told Gallup they had tried marijuana.]

I am sympathetic to, although not completely persuaded by that view, but I think there’s merit to it. And in response to that, we are swinging back in the other direction. That we are entering a period where we’re going, “Well, actually they weren’t so bad. And marijuana is fine and mushrooms are fine. And maybe a little cocaine is fine.” We are returning to that.

The other factor is that prior periods of excess have not been characterized by the same commodification of addiction as we are experiencing today. The social media sites that everybody use are built on the commodification of addiction — getting you to compulsively consume something even when it’s bad for you in order to boost profit.

And then there’s the legalization of sports gambling. Sports gambling is totally destroying lots of people’s lives. We’ve started to build decent evidence. We know it’s what happened in the U.K. But that is, again, part and parcel of this broader, not just we are growing, we are naïve to the harms of addictive goods and we are consuming them. But also they’re big industries.

Coaston: You’ve argued for a federalized approach to policing called “sentinel cities,” which would involve increased federal data collection. What does that mean?

Lehman: We don’t know how much crime happens in the United States. Local police departments report to the state and then the state reports to the F.B.I. and the F.B.I. aggregates. The police departments don’t use the same standards. It’s an incredible lag: we don’t know how much crime happened last year. We won’t until maybe this month, maybe next month. It’s a huge mess. And it’s unreliable.

My argument is, look, you should expand that reporting. You have a bunch of big cities that routinely report at a daily or weekly tempo to the F.B.I. And the F.B.I. releases this data on a daily, weekly tempo.

And then policymakers at the state and national level can have real time information about where crime actually is, what is the crime rate doing. Because I can still find out how many people died of Covid yesterday. If I wanted to find out how many people died by homicide yesterday, I would need to wait months and months and months. That’s ridiculous.

[The C.D.C. tracking of Covid deaths is now weekly.]

Coaston: What tactics do you think actually lower crime? We saw a big drop in crime in the 1990s and 2000s. We’ve seen a recent rise in certain kinds of violent crime, but we’ve now in many cities seen again a decline in that crime. And there was a rise in homicides in rural areas too, for example. So what if the rise in crime was just related to the pandemic and declines are to be expected? And again, what actually causes crime to drop? Do we actually know?

Lehman: There are what I might call fundamental inputs and policy inputs. So for example, the business cycle, as it turns out, at a correlational level, predicts property crimes, not violent crimes. It’s like when the economy is worse people do a little more stealing on average. But also the level of violent crime is unaffected.

But to me, you also want to say, what are the policy inputs that control crime? So the way I think about the crime increase from 2020 up through today is that very broadly, there was a dramatic reduction in what criminologists talk about as social control. Social control is just this idea of the formal and informal institutions of society are stopping people from committing crime. And so that means there’s a reduction in police activity on the street, for example. And I think we have fairly solid evidence that those things control crime. On the other hand, it’s also the case that people not being in work and not being in school increases their propensity to offend and their tendency to offend.

[Violent crime remains elevated compared to before the pandemic in the United States, but there has been a reduction in many types of crimes compared to last year, according to the Council on Criminal Justice, with the notable exception of vehicle theft.]

So closing schools and closing businesses also probably contributed to the crime increase. But that is also a social control phenomenon, right? It’s like you’re not at work, you’re not being watched over by your colleagues or by your principal. You are marginally more likely to commit crime.

We are fairly certain that there are a bunch of non-policing interventions that help at the margins. That’s like greening vacant lots and cleaning up houses and putting up lights. That stuff really does seem to help, although you can only do it once, so it doesn’t have the same elasticity as policing. And then some of it is just how you think about coincidental factors. Have you followed the phenomenon with Kias and Hyundais being stolen?

Coaston: Yes.

Lehman: On one level, that’s about, there are more juvenile offenders who are out, who are less surveilled and they’re out stealing cars for fun and occasional profit. But it’s also the case that if it weren’t so easy to steal Kias and Hyundais you wouldn’t have this problem.

[Certain kinds of Kias and Hyundais lack a device that helps to prevent theft. Thefts remain elevated all over the country. The carmakers have released a software fix.]

Coaston: Wesley Skogan from Northwestern told FiveThirtyEight in 2020 that all of the homicides in Chicago occur in about 8 percent of the city’s census tracts. So for everybody else, the crime you hear about is crime somewhere else, even if it’s in your own city. How should we rethink urban crime, given that in many cities it is not endemic to the entire area, but it is to those specific hot spots. How should we think about that and how should policymakers respond to that?

Lehman: The policy response is, you want to concentrate efforts in those areas. Hot-spot policing really does work. And I think that there are legitimate procedural justice, legitimate racial justice concerns there. And the way that you get around that is basically caring about community outreach and community coordination. Caring that police officers treat people with respect. And that’s a challenging ask. We have better knowledge about how to do that well than we used to. Procedural justice is a significant step forward in that regard. Justice training is a big step forward in that regard. De-escalation training is currently a decent step forward, too.

From a communication perspective, on the other hand, I think there’s a tendency to jump from, “crime is highly concentrated” to, “therefore people are irrational and unreasonable in worrying about crime.”

Coaston: The Republican Party is trending back in a very strong way toward a tougher view of policing and crime. Do you worry about the G.O.P. or conservatives getting things wrong, and how do you try to make sure that doesn’t happen?

Lehman: You can be tough on crime and smart on crime, and you can be tough on crime and dumb on crime. And while in general, I’m in favor of being tough on crime, I would also like people to be smart on crime, and it’s hard to get that right. “We want to increase severity, we want to increase intensity of punishment” — and my response is not, I’m morally alarmed by that. But rather, that’s not necessarily the margin on which you’re going to have the most success. So the formula that I generally try to talk about is, criminal offending is highly concentrated. Most people don’t commit crimes, most places don’t have a lot of crime. We now have the capacity to identify those people and places in a way that we didn’t even 30 years ago. Modern technology lets us do that. You want to focus on identifying who the problem actors are, where the problem places are, and remediating those problems to the most efficacious solution. Let the evidence, let the data guide your behavior.

I think it is entirely possible to let your policymaking not be guided by the evidence and data. It’s not going to accomplish what I think is a very reasonable goal, which is trying to reduce the level of crime in our society. I think politicians, left and right, are always going to posture. I would like them to posture as little as possible on this issue, even though that’s a big ask.

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