Over at First Thoughts, Joe Carter has one of the more measured, intelligent responses to the Gates arrest. You should read the whole thing, but the crux of his argument seems to be that maintaining public order is sometimes more important than scrupulously respecting personal autonomy. As a general principle, I tend to agree, and I think that the broad formulation of laws like the now-infamous Massachusetts disorderly conduct statute reflect this perspective.
However, I think it’s wrong to view public order and protecting civil rights as totally irreconcilable tendencies. Police conduct can fall across a wide spectrum of enforcement outcomes, with the absolute, inviolable protection of individual rights on one end and an overwhelming emphasis on maintaining public order on the other. So where should our priorities lie? In the case of Gates, I believe that the circumstances surrounding the incident- the suspect was a old man with a cane, complaining to a police officer on a suburban street isn’t really an imminent threat to public order – militated against a preemptive arrest. A lot of these judgments are context-dependent, however, which is why, for example, I can sympathize with a small town police department’s draconian response to the meth epidemic despite my civil libertarian tendencies.
So while I agree with Carter that maintaining public order is an important goal, I think we’ve drifted too far towards that end of the enforcement spectrum. Responding to spiking crime rates in the 1970s and 80s, law enforcement adopted a more severe approach. This worked (up to a point) – the dramatic reduction in crime rates over the past two decades is no small achievement. Now, however, we’re faced with the consequences of our enforcement policies: we imprison a higher percentage of our population than any other country in the world, our prison system magnifies racial disparities, and it’s no longer clear that mass incarceration is a fair price to pay for quiet on our streets.
So my challenge to those who see the Gates arrest – and, more broadly, our entire law enforcement infrastructure – as prudential investments against the breakdown of public order is this: Have we now gone too far? Are preemptive arrests and mass incarceration too high a price to pay for the maintenance of public order? We now know that when applied consistently, less punishment can be more effective at deterring crime than harsher measures. Given the circumstances, is it time to shift back to an approach that puts greater emphasis on protecting individual rights?