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On Crime and Punishment in Large Cities  

Consent decrees hamper police and lead to increased homicides. Reforms are possible without stopping all minor crime enforcement.

Recent events might lead the uninitiated to believe that, on the crime front, America’s large cities are getting better and better.

Several of the new breed of city prosecutors have announced with pride that the “war on drugs is over” in cities such as Baltimore and, “there is no public safety value in prosecuting low-level offenses.” The Biden Justice Department, with the cooperation of local officials eager for possible federal funds, has launched investigations looking toward “consent decrees” in Minneapolis and Louisville.

But large cities that have toyed with consent decrees like Baltimore and Chicago have higher homicide rates to show for it, since two of their principal effects are to discourage police recruitment and prevent proactive policing. History teaches that competent police commissioners enjoying political support can reform police—insulated and naive federal judges cannot.

The victims of the increased numbers of homicides are the forgotten casualties of well-intentioned crime policies, which both cost lives and damage the efforts of cities to generate opportunities for citizens by attracting new residents, employers, and visitors. Homicide statistics are the most trustworthy and the most visible crime statistics.

One should not question the good intentions of “woke” prosecutors and federal judges. In many cities, there has long been reason to resent “stop and frisk” policing, being pulled over for “driving while black,” and the past excesses of the drug war—including time spent in pre-trial detention for failure to make bail for minor offenses and extraordinarily long sentences for other drug offenses.

But six years after Ferguson, Missouri, and the exaggerated Freddie Gray affair in Baltimore, it is time to take stock of where consent decrees and indulgence of minor criminal offenses and less visible policing have gotten us.

Consent decrees typically not only limit excesses of stop and frisk policing but also effectively suspend the operation of large swaths of the criminal code, including provisions relating to such matters as loitering, public urination, and public defecation. Together with the stated policies of some prosecutors, they brings an end to proactive policing in a city. The authors of some consent decrees undertake to nullify and prevent the use in other cities of the many successful policing practices that, starting in the early ’90s, had produced a nearly 80 percent reduction in the homicide rate in New York City.

The purpose of stop and frisk policing (in N.Y. and elsewhere) was to keep weapons off the streets. (For this reason, it has recently been re-introduced in London, which has much milder problems than most U.S. cities.) The effect of sweeping restrictions on stop and frisk, as well as on enforcement of loitering and other minor “broken windows” offenses, has been to cede inner-city streets and street corners to drug dealers and to facilitate the revenge killings with which they enforce their contracts.

The new breed of elected prosecutors are right to to favor de-criminalization of drugs. But they cannot do this unilaterally. So long as federal criminal prohibitions remain in place, whatever the extent of their enforcement, all contracts in this lucrative but illicit industry are enforceable only at the point of a gun. The late, great statesmen Paul Volcker and George Shultz pointed this out years ago (as did presidents Cardoso of Brazil, Gavrilia of Colombia, and Zedillo of Mexico in the 2005 “Report of the Latin American Commission on Drugs and Democracy”).

But at both state and national levels, those who have fostered restrictions on the police and prosecutors have failed to substitute a controlled, legal industry for an illegal one. Legislators have been slow in legalizing both medical marijuana and recreational marijuana, which have generally come about through citizen initiatives and referenda. Too many legislators have been more interested in the racial identity of present and future distributors than in de-funding the underworld.  The same is true at the national level. Even on the issue of ending a constitutionally questionable federal role in marijuana prohibition, President Biden has waffled and wimped out.

The contrast with the way President Franklin Roosevelt and Maryland Governor Albert Ritchie dealt with alcohol prohibition is instructive. Repeal in 1933 was carried through against the advice of all sorts of “experts,” including all but one of the members of the federal Wickersham Commission—and it dramatically reduced corruption, gangsterism, and the growth of police power. This was accompanied by large-scale youth employment programs, including the Civilian Conservation Corps, which along with repeal was one of the first and most popular initiatives of the Roosevelt administration. Despite depression and war, there were fewer federal law enforcers in 1952 than in 1932.

In the past, it was generally understood that prosecutors and judges must recognize and work within the constraints of the federal and state laws they are sworn to uphold. What they have done instead is reinforce a powerful existing underworld and further demoralize both law-abiding residents of cities and their business communities.

What was done in New York by former Police Commissioner William Bratton and his successors is undoubtedly a “second best” policy. But any potential excesses of proactive policing can be limited without chartering the present regime of lawlessness. Police commissioners whom residents can trust should not be strait-jacketed by extraordinary restrictions in consent decrees, which foster police retirements and discourage recruiting. It is past time for judges, sua sponte, or federal officials and mayors to seek open-ended hearings upon and reconsideration of the more intrusive provisions of decrees, or to forswear new ones. They are not a legitimate way to replace an illegal industry constantly colliding with the police with a licensed and regulated one, nor will they provide needed employment for the youth of the underworld.

George Liebmann is president of the Library Company of the Baltimore Bar, and is the author of works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Looks at Four Failed Administrations.

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