Nanny Bobo
Or: Is It Still Legal To Breathe?
(Don’t Hold Your Breath)
Once upon a time the functional role of the Republican party in American politics was to act as the tax collectors for the burgeoning welfare state. Throughout the 1950s, 1960s and 1970s, while the Democrats were perfecting their technique for buying power and influence on an ever greater scale (frustrated only by the gaping fissures engendered by Vietnam and the legendary disasters of the hapless and hopelessly incompetent Carter administration), the incessant Republican battle cry was “Balanced Budgets!”, an exhilarating exhortation which compelled them to repeated advocacy of large tax increases and small spending cuts, and relegated them to what seemed likely to be perpetual wandering in the wilderness – permanent minority status. (Not that this kind of Republican is yet extinct – it’s only nine short years since the party nominee was atavistic Bob Dole, and only a little more than a dozen since the administration of George H.W. Bush went down in flames after its disastrous abandonment of principled Reaganism.) To paraphrase one of the leading exponents of this variety of Republicanism, they were all “Fords, not Lincolns.”
It’s unlikely that Republicans will return to this unsavory past, however much goobers like Nebraska’s Senator Chuck Hagel may insist upon it. But there is an equally dismal fate that may befall the present Republican coalition and impel it once again into the wilderness. It is the demand on behalf of such as Representative F. James Sensenbrenner Jr. of Wisconsin that the party trade its old role of ‘tax collector for the welfare state’ for the new perversion of ‘enforcer for the nanny state.’
Sensenbrenner may best be described as the sort who thinks x “ought to be against the law”, where x means “damned near everything.” As the Cato Institute’s Gene Healy notes in "Criminalization Out of Control", “The criminal sanction is supposed to be a last resort, reserved for the most serious offenses to civil peace. But more and more, it’s becoming government’s first line of attack – a way for lawmakers to show that they’re serious about whatever is the perceived social problem of the month.
“Examples of reflexive criminalization abound. [Austin’s new smoking ordinance, e.g.] A bill to prevent the transportation of horses for human consumption has 80 co-sponsors in Congress. If signed into law, it would join such illustrious federal crimes as the interstate transport of water hyacinths, trafficking in unlicensed dentures and misappropriating the likeness of Woodsy Owl and his associated slogan, ‘Give a hoot, don’t pollute’ (punishable by up to six months in prison).”
Sensenbrenner’s latest proposal is “a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours.” This he supplements with “what might be called the ‘Jail Janet Jackson’ initiative. Instead of enforcing the Federal Communications Commission’s indecency regulations with fines on broadcasters, according to Mr. Sensenbrenner, those who violate the regulations should be subject to arrest and imprisonment.
“‘I’d prefer using the criminal process rather than the regulatory process,’ he said. ‘Aim the cannon specifically at the people committing the offenses.’”
In contrast, I’d prefer the First Amendment. “Do we really want to lock people up for bad taste?”
The problem, as Healey explains, is that “because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress.
“And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5-year-old girl.” (For hundreds of illustrative examples of this latter lunacy, see here and here.)
The insanity of the social destruction wrought by our present national experiment with prohibition is but one particularly egregious aspect of the policy sought by nanny bobos. “One of our most destructive overcriminalization binges occurred during the ‘Just Say No’ era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.
“There are eight times as many women in prison as there were in 1980, and the drug war is a key factor in driving the incarceration rate. In 2001, the average federal drug trafficking sentence was 72.7 months, more than double the average manslaughter sentence [my emphasis]. In addition to sending parents to jail for failure to testify against drug dealers, Mr. Sensenbrenner’s bill would extend and enhance mandatory minimum drug penalties, adding to the social costs of the drug war.”
The ultimate effect of criminalizing everything is not universal conformity to the law, but universal contempt for the law – growing disrespect and disdain for a legal regime that is contemptuous of human freedom. “Being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct better handled by fines or civil law, to say nothing of conduct that’s really none of the government’s business. Those who can’t make those distinctions, far from being tough on crime, actually weaken the moral force of the criminal law. That’s a crime in itself.”
And it’s just the kind of stupidity that could send the Republican party back into the wilderness for another fifty years.
(Don’t Hold Your Breath)
Once upon a time the functional role of the Republican party in American politics was to act as the tax collectors for the burgeoning welfare state. Throughout the 1950s, 1960s and 1970s, while the Democrats were perfecting their technique for buying power and influence on an ever greater scale (frustrated only by the gaping fissures engendered by Vietnam and the legendary disasters of the hapless and hopelessly incompetent Carter administration), the incessant Republican battle cry was “Balanced Budgets!”, an exhilarating exhortation which compelled them to repeated advocacy of large tax increases and small spending cuts, and relegated them to what seemed likely to be perpetual wandering in the wilderness – permanent minority status. (Not that this kind of Republican is yet extinct – it’s only nine short years since the party nominee was atavistic Bob Dole, and only a little more than a dozen since the administration of George H.W. Bush went down in flames after its disastrous abandonment of principled Reaganism.) To paraphrase one of the leading exponents of this variety of Republicanism, they were all “Fords, not Lincolns.”
It’s unlikely that Republicans will return to this unsavory past, however much goobers like Nebraska’s Senator Chuck Hagel may insist upon it. But there is an equally dismal fate that may befall the present Republican coalition and impel it once again into the wilderness. It is the demand on behalf of such as Representative F. James Sensenbrenner Jr. of Wisconsin that the party trade its old role of ‘tax collector for the welfare state’ for the new perversion of ‘enforcer for the nanny state.’
Sensenbrenner may best be described as the sort who thinks x “ought to be against the law”, where x means “damned near everything.” As the Cato Institute’s Gene Healy notes in "Criminalization Out of Control", “The criminal sanction is supposed to be a last resort, reserved for the most serious offenses to civil peace. But more and more, it’s becoming government’s first line of attack – a way for lawmakers to show that they’re serious about whatever is the perceived social problem of the month.
“Examples of reflexive criminalization abound. [Austin’s new smoking ordinance, e.g.] A bill to prevent the transportation of horses for human consumption has 80 co-sponsors in Congress. If signed into law, it would join such illustrious federal crimes as the interstate transport of water hyacinths, trafficking in unlicensed dentures and misappropriating the likeness of Woodsy Owl and his associated slogan, ‘Give a hoot, don’t pollute’ (punishable by up to six months in prison).”
Sensenbrenner’s latest proposal is “a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours.” This he supplements with “what might be called the ‘Jail Janet Jackson’ initiative. Instead of enforcing the Federal Communications Commission’s indecency regulations with fines on broadcasters, according to Mr. Sensenbrenner, those who violate the regulations should be subject to arrest and imprisonment.
“‘I’d prefer using the criminal process rather than the regulatory process,’ he said. ‘Aim the cannon specifically at the people committing the offenses.’”
In contrast, I’d prefer the First Amendment. “Do we really want to lock people up for bad taste?”
The problem, as Healey explains, is that “because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress.
“And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5-year-old girl.” (For hundreds of illustrative examples of this latter lunacy, see here and here.)
The insanity of the social destruction wrought by our present national experiment with prohibition is but one particularly egregious aspect of the policy sought by nanny bobos. “One of our most destructive overcriminalization binges occurred during the ‘Just Say No’ era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.
“There are eight times as many women in prison as there were in 1980, and the drug war is a key factor in driving the incarceration rate. In 2001, the average federal drug trafficking sentence was 72.7 months, more than double the average manslaughter sentence [my emphasis]. In addition to sending parents to jail for failure to testify against drug dealers, Mr. Sensenbrenner’s bill would extend and enhance mandatory minimum drug penalties, adding to the social costs of the drug war.”
The ultimate effect of criminalizing everything is not universal conformity to the law, but universal contempt for the law – growing disrespect and disdain for a legal regime that is contemptuous of human freedom. “Being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct better handled by fines or civil law, to say nothing of conduct that’s really none of the government’s business. Those who can’t make those distinctions, far from being tough on crime, actually weaken the moral force of the criminal law. That’s a crime in itself.”
And it’s just the kind of stupidity that could send the Republican party back into the wilderness for another fifty years.
posted by Ken at 4:24 PM
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