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Desperately Seeking Consistency

(Anadolu Agency via Getty Images)

“And, as Michael Lind pointed out in Tablet, Washington, D.C.’s Capitol Hill was not the only Capitol Hill taken over by extremists thanks to a lax police presence—witness ultra-progressive Seattle.”

I would never have heard of Colin Chapman had it not been for Top Gear. While I have never been anything close to a motorhead (sorry, petrolhead), I have always found the wit and antics of Jeremy Clarkson, Richard Hammond, and James May (first on the BBC’s Top Gear and now on Amazon’s The Grand Tour) quite amusing. And, while the political dimension of their irreverent impishness is generally limited to their political incorrectness and Clarkson’s rants about the nanny state, their references to Chapman, founder of Lotus Cars, have implications for law, order, and criminal justice in the United States.

“Simplify, then add lightness,” was Chapman’s mantra. It is not necessary for a car to contain a huge number of parts in order to be high-quality. If a company can give its customers what they want—while using fewer inputs than its competitors—it should do so. Apply this thinking to public safety (and the question of when it is necessary to regulate human behavior), and one gets a fairly straightforward, general rule about how much government should involve itself in the lives of its citizens.

When government at any level must curtail freedom for the sake of public health and safety, the law should be easy for citizens to understand and adhere to. Complexity, a long list of details and caveats, goes in the opposite direction. Meanwhile, how much intervention is truly necessary? If an action is not really causing anyone any harm (even granting that the meaning of harm is not always easy to agree on and is being constantly inflated), why prohibit it? To what degree should Americans expect government to make their lives convenient and pleasant, as opposed to secure, especially when that convenience entails the restraint of some people’s freedoms, freedoms that others take for granted? A government that regulates fewer aspects of life but is rigorous and uncompromising in protecting what really matters—human safety—is one that citizens can respect and believe is fair.

When pro-Trump fanatics got past Capitol Police, forced members of Congress to flee for their safety, and disrupted the certification of a presidential election, it was common on the Left to see this not only as a case of law enforcement dropping the ball but, also, as a case of unequal fulfillment of one of the basic duties of government. Comparing the Black Lives Matter protests in the spring of 2020 (and the large security presence summoned to confront them), with the seemingly minimal police presence on Capitol Hill to contain supporters of President Donald Trump, it seemed obvious to progressives that a double standard was at work. While it is natural for humans to assume bad faith and ill intentions on the part of their enemies and, by extension, to assume unfairly lenient treatment of those enemies by arbiters of the public good, an appearance of unequal treatment does not necessarily indicate bias.

There are many factors that go into a decision of how many police officers or troops to deploy—how big a crowd is, for example. If the size of the January 6th crowd is ever determined, it will be interesting to compare it to the late May and early June George Floyd protests, in which between 15 and 26 million people in nearly 550 places took part. While those protests were mostly peaceful, some did spiral downward into violence, making a heavy security presence look more sensible. Meanwhile, the heavily militarized approach to containing the June protests—and President Trump’s callous use of Guardsmen to clear Lafayette Square for his walk to St. John’s Episcopal Church—contributed to officials limiting the National Guard’s role to controlling traffic, rather than guarding the United States Capitol last week. And, as Michael Lind pointed out in Tablet, Washington, D.C.’s Capitol Hill was not the only Capitol Hill taken over by extremists thanks to a lax police presence—witness ultra-progressive Seattle.

Physical safety, the ability of everyone from store owners to Senators to go about their business without fear of having their windows smashed or their skulls broken, is a perfectly legitimate concern for any human being to have.

This gets to another principle of fair regulation: consistency. While the idea of allowing public servants discretion in how best to achieve the goals assigned to them is attractive (Philip K. Howard makes strong arguments for this kind of flexibility in his 2019 book Try Common Sense), as soon as you permit discretion, you permit prejudice. Human nature being what it is—and the idea that anyone can “eradicate bias” anywhere being utterly foolish (to eradicate bias, one would have to eradicate the human species)—humans with the power and authority to regulate the actions of others will never do so completely fairly or equally. Room for discretion makes it possible for, to take just one example, a young white female driver pulled over by a police officer to get out of a ticket in a situation where a black male driver may well not have. Demanding consistency—the equally gentle or equally ruthless enforcement of all laws at all times and with all people—at least curtails the possibility of enforcers’ prejudices getting in the way of them doing their jobs.

This consistency will be easier to achieve, however, if there are fewer aspects of life regulated by government, as well as fewer individual laws for police and other officials to enforce. Is it necessary for a locality to regulate people’s ability to gather on street corners? Is it necessary to prohibit anyone from drinking in public, whether that means people “in Bedford-Stuyvesant who may be on their stoop enjoying a can of beer” or “picnickers in Central Park sharing a bottle of champagne”? Some people may be uncomfortable seeing these things happen in their neighborhood, but that does not mean that protecting their comfort is worth deploying people with badges and guns.

The concern for simplicity in law and justice can extend to another contentious area: sentencing. If we are concerned about racial disparities in sentencing, why allow variation in sentencing at all? Why give prosecutors or judges any say in how harshly a person should be punished? Surely, that is just another place into which prejudice is allowed to seep. Why not say, in the case of every law, “if you are convicted of X crime in Y jurisdiction, you will receive Z sentence, no exceptions.” Instead of “five to ten,” let seven years (or whatever government deems appropriate) be the only option. If we seek equal treatment by everyone under the law—and if we believe, as it were, that all lives matter (that no victim is more important than another)—we could simply mandate a single, non-varying sentence for each crime.

Having fewer things to regulate would make clear what police ought to be truly concerned about: law and order. This is not always the right-wing dog whistle that the activist left thinks it is. Physical safety, the ability of everyone from store owners to Senators to go about their business without fear of having their windows smashed or their skulls broken, is a perfectly legitimate concern for any human being to have. Citizens have the right to expect that the armed public servants funded by their taxes will be deployed to protect them from physical harm. They have the right to expect that police will be trained not to be affected by the apparent pro- or anti-cop sympathies of demonstrators they are monitoring, that someone holding a Blue Lives Matter flag will not be favored over someone with a “defund the police” sign. A police officer not assigned to clear street corners or fine public drinkers is an officer better able to focus on protecting the public from genuine harm.

People also have the right to expect that their elected leaders will care about the physical security of all of their constituents. They should be able to expect that officials will not apologize for accurately calling riotersthugs,” and will apply this label to anyone—regardless of race or religion or ideology or anything else—who embraces violence in reaction to a political or legal event they find outrageous. When it comes to mass violent disorder, politicians do not get to pick and choose where they want the police to back off and where they want them to be heavy-handed. Political leaders would be wise to take seriously psychologist Paul Bloom’s argument that empathy, with all its potential for bias enhancement, is a bad thing when it comes to law and policy.

We should expect the same of public health officials, for that matter. Either a mass gathering during a pandemic is a health hazard or it is not, regardless of whether those risking their own health and that of others are armed lunatics in Michigan angry about a lockdown, huge crowds in cities across America protesting “systemic” racism, or anyone else. It is extremely dangerous for medical experts to let their politics into their advice to laypeople about keeping safe. 

Lightening restriction of daily life overall, simplifying the rules that remain, and making enforcement of those rules consistent can improve not only public safety; it can also improve people’s confidence in a government that prioritizes that safety. Given how deeply Americans hate each other’s guts, our leaders would do well to keep their expectations low. Before they try to inspire us with grand notions of what they can achieve through their offices, they should first make sure they can fulfill the most essential duty of government: keeping people’s hatred from turning into bloodshed.

Michael D. Purzycki is a staff writer at Charged Affairs, the journal of Young Professionals in Foreign Policy.

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