Seize the Eric Garner Moment
Is George Will offering to meet us half way?  When conservative commentators, like George Will and Glenn Beck and others, express outrage at the failure to indict the officer who choked Eric Garner to death we need to pause and take stock:  this could be a time to try to get something done.  This particular conflict might be presenting an opportunity to lead.

Washington Post columnist George Will argues that Eric Garner’s death is an ‘affront’ to our national ‘sense of decency.’  He calls the grand jury’s failure to indict the officer ‘inexplicable and probably inexcusable.’  On this point, perhaps, there appears to be widespread agreement across the country.  

Will points his finger at our criminal justice system as the source of the problem. Again, a surprisingly candid and non-ideological position for a conservative to stake out, suggesting the possibility of common ground.  And Will goes one step further on his journey to meet opponents half way:  a criminal justice system hooked on mass incarceration that is more about politics than crime control is what best accounts for Eric Garner’s death.  In his own words…

“He [Eric Garner] lived and died in a country with 5 percent of the world’s population but 25 percent of its prisoners. In 2012, one of every 108 adults was behind bars, many in federal prisons containing about 40 percent more inmates than they were designed to hold. 

Most of today’s 2.2 million prisoners will be coming back to their neighborhoods and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment’s ban on “cruel and unusual punishments” and is, to put things plainly, torture. 

The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism. This, like Eric Garner’s death, is a pebble in the mountain of evidence that American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.”

Well said, Mr. Will.  But here is where Will begins to go off the rail.  While rightfully pointing to the New Jim Crow of mass incarceration he then uses this as just bait so he can then switch to a focus on the need to reduce government regulation.  Here is how he does it.  He claims addressing mass incarceration requires us to “reach beyond matters of crime and punishment, to basic truths about governance.”  

And from here, it is smooth sailing for him to ignore the policy choices driving mass incarceration—zero tolerance policing in particular—to redirect our attention to taxes.  He claims to be analyzing ‘overcriminalization,’ but he does so by ignoring the types of minor, non-violent, offenses that have long been the bread and butter of our failed War on Drugs, choosing instead to focus on a New York State law criminalizing the sale of single cigarettes.

We know why he does this, of course.  First, like Rand Paul he is always eager to find a soapbox for his anti-government-regulation gospel. Second, he wants to use the Garner killing to advance his attacks on regulation, while also protecting his much-loved zero tolerance approach to policing.  And he does both by providing a folksy metaphor that, upon examination, does not fit—by design.

Will suggests we can help future Eric Garners by rolling back the government regulatory over-reach exemplified by the cigarette tax and preserving his cherished ‘broken windows’ metaphor as a guide for police work. Unfortunately, the folksy metaphor about the importance of tending to broken windows or street lighting is at odds with the police practice that occurs under its banner—by design.

Will and his allies consistently oppose policy and spending that would fix actual broken windows, street lights, or other signs of urban blight and decay.  Instead, he supports policy and spending priorities that move these funds into policing—and there are no police officers I am aware of who are paid to repair the physical deterioration in inner city neighborhoods.  Instead, they ‘tend’ to metaphorical broken windows by arresting (or, in the case of Eric Garner, killing) people in the neighborhood.  In his own words…

“Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So, because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. 

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.”

Will is correct to note that overcriminalization has long been a national plague.  But not because we over-regulate cigarette sales.  Overcriminalization and the mass incarceration that results from it, as Will points out, is rooted in the criminalization (and aggressive zero tolerance policing) of the minor infractions Will insists we must continue to criminalize.  Our prisons are bursting at the seams with the non-violent drug offenders caught in this broken metaphor for police work, not with those arrested for selling cigarettes. 

On a related point, Will reminds us that we ignore the plight of Eric Garner, Michael Brown, Trayvon Martin and others at our own risk.  He tells us that “Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned.”  Since it is very common to be reminded by conservatives like Will that ignorance of the law is no excuse, 70% of us could easily have been in Eric Garner’s shoes, if criminality was the driving force behind zero tolerance policing.

So, George Will might want to meet us half way, but his understanding of half way is strategically designed to be a trap.  We should applaud his recognition of the national plague that is mass incarceration due to overcriminalization.  But we should insist on an actual response, rather than his metaphorical suggestion, that focuses on not criminalizing those minor infractions our police aggressively enforce under the banner of broken windows policing.  And combine this with an effort to provide funding for policy designed to fix the actual broken windows of urban blight.