Police Discretion

There's already been a lot of virtual ink spilled about the Gates arrest, and now about the President calling the arrest stupid. Ta-Nehisi Coates has terrific posts, and terrific threads, about both, and I'm using my blog to put together some of the thoughts those threads brought up for me. As someone from a police family, I think that arrest was stupid. It was a glaring piece of bad judgment.

Even according to the arresting officer's report, this is very much a discretionary arrest. There are such things. If every law on the books was constantly enforced with arrest, we'd live in a bizarre and palpably unjust world. Every loiterer should not be fined. Everyone drunk in public should not spend a night in the drunk tank. Every piece of disorderly conduct should not lead to an arrest. Any time a police officer makes one of those arrests, he or she is using her discretion. It's a judgment call.

Should these laws be taken off the books? No. Do they give the police too much leeway? Not necessarily. Police need some tools to manage difficult situations in real time in the interest of public safety. The ability to arrest people, to remove certain parties from a situation that's looking volatile, is an absolutely necessary tool. If you've got some truculent drunks in a crowd after a sporting event, who are on the verge of starting a fight, public drunkenness is a great arrest to make. If you want to keep two large groups of teenagers from brawling, the no-loitering law is perfect. If someone is legitimately creating a public danger, disorderly conduct arrests can defuse the situation.

But here's the thing. Exactly because these arrests are discretionary, they put the burden on the police officer to use discretion and good judgment. These are laws that are basically designed not to be enforced most of the time. The point is that the officer is supposed to apply these laws judiciously, in the interest of public safety. A drunk twenty-something leaning on a designated driver's arm? Not an arrest. A drunk twenty-something screaming threats at a guy in a Yankees cap? Arrest-a-mundo.

Most of all, discretionary arrests should not be used by a police officer to vent spleen or avenge insults. They often are, but that is not policing. That is public bullying. Disorderly conduct should not be charged simply because someone displeased a police officer.

The arresting officer's report, which is by its nature a one-sided and adversarial document, can't really make the case that Gates had to be arrested. It only makes the case that Gates could be arrested. And for a disorderly conduct charge, that isn't enough. Any talk about how Gates comported himself is beside the point. Being a jackass, and we only have the arresting officer's word for that, is still not an arrestable offense. And as for the defense that Sgt. Crowley was "just doing his job," I would point out that his job is to use his discretion. He certainly wasn't protecting anyone when he arrested Gates. And he wasn't using his judgment. He was just being, to put it as charitably as possible, stupid.

I believe that Crowley knew from almost the beginning of the interview that Professor Gates was not a threat to him. The fact that Crowley entered Gates's home (as all parties agree) by himself and without backup, gives that away. If he went into that house without backup (especially when the initial report mentioned two suspects) before knowing that there was not a crime in progress, then he would be an enormous fool. That he walked into Gates's home alone suggests that he knew he was dealing with a safe situation.

After Gates had identified himself as the homeowner, and shown ID (which all parties agree, although they differ on details), and after, as Sgt. Crowley himself reports, Crowley believed that he was dealing with the legitimate resident, there was no further police work to do. (Certainly, he should not have continued to ask the resident questions after that. What reason could there be?) Crowley should have been on his way. Ideally, a few conciliatory words along the line of "Sorry to disturb, just doing our jobs," would have helped, but Crowley was also free to scowl and depart.

What happened next, with Gates being arrested and cuffed on his porch, has nothing to do with public safety. Even if Gates behaved every bit as badly as Crowley claims, Gates's vocal and arguably "disorderly" displeasure was not going to be a threat to anyone else's safety. There wasn't going to be any mayhem on Ware Street. I'm not entirely sure that the laws of physics permit mayhem on Ware Street in Cambridge. If Gates had genuinely lost his temper, then Crowley should have allowed him to sputter on his porch and embarrass himself. Instead Crowley reached for his cuffs and made everything into a bigger deal. Was that stupid? There's no way on Earth to call it smart.

Palin, Douthat, Class and Education

Ross Douthat has an equivocal defense of Sarah Palin, or rather a lyrical defense of the-Palin-that-might-have-been in Douthat's hopeful hypotheses, in the Times. He cops to the damage that Palin has done to herself and to her own political future, but also throws a lot of blame on the media for misrepresenting her. I disagree with Douthat broadly: I do not think that there is another Palin, or that she would have performed better in different circumstances. I think there's one Sarah Palin, here in the phenomenal world, and I think we're looking at her.

But I really want to take issue with a narrower point, about how Douthat frames Palin's agenda:

Palin’s popularity has as much to do with class as it does with ideology. In this sense, she really is the perfect foil for Barack Obama. Our president represents the meritocratic ideal — that anyone, from any background, can grow up to attend Columbia and Harvard Law School and become a great American success story. But Sarah Palin represents the democratic ideal — that anyone can grow up to be a great success story without graduating from Columbia and Harvard.

That is genuinely a nice distinction on Douthat's part and the tension between small-d democratic impulses and meritocratic impulses go all the way back through our history. (Part of my Independence Day reading has involved the election of 1800; 'nuff said.) But Douthat is collapsing another important distinction: that between hostility toward class and hostility toward education per se.

One can dislike Harvard and Columbia for class-based reasons, as bastions of elitism, and that's an eminently reasonable position, even for Harvard alumni with columns at the New York Times. But some dislike Harvard, Columbia, and the rest of the Ivies because they dislike education itself. There's an anti-elitist position and a know-nothing position. One has merit. One does not. Richard Nixon might legitimately scorn Harvard, where he could not afford to go although he earned admission. But Nixon never scorned learning itself. Lincoln, the greatest of our up-by-the-bootstraps politicians, valued education tremendously.

The question here is whether Palin is the class warrior Douthat imagines or a simpler, less laudable, know-nothing . Douthat feels that she's a failed or incompetent Andrew Jackson:

he’s botched an essential democratic role — the ordinary citizen who takes on the elites, the up-by-your-bootstraps role embodied by politicians from Andrew Jackson down to Harry Truman.

But perhaps she's "botched" this role because she's not trying to perform it. Perhaps she isn't fumbling Douthat's agenda, but has one of her own that Douthat himself could not embrace.

It's very clear from her public words and actions that Palin does not merely resent educational privilege, but education itself. She resents knowledge. She resents learning. She resents anyone who is smarter than herself, which is a very significant slice of humanity. Palin doesn't simply view Harvard and Columbia as elitist; she views state colleges as elitist. She's against knowing stuff.

How can we test this? We could look at her education policy. How does she support the University of Alaska system? Surely, the University of Alaska is not about eastern snobbery or old-money prestige. It's about students learning things.

And while we're at it, we should consider, as the best evidence of all, Palin's hostility to public libraries in her state. Public libraries are anti-elitist education at its purest and best. They give no degrees. They have no cachet. They have no lacrosse teams or school ties. They're just about information, about learning for everyone. They are the places where many of our greatest American autodidacts, and there's a glorious tradition, have begun to pull themselves up by the public bookplates.

Palin, naturally, hates them.

June 20, 2009

The Timetable for Miracles

I was pleased by President Obama's speech in Cairo today. Many of the things I'd praise about the speech, which had many fine moments, will be praised elsewhere, so I'll confine myself to one detail of its purpose and of the expectations about it.

I've already seen some reaction from fairly hard-line Islamist figures rejecting Obama's gestures of reconciliation and mutuality. I have also seen some reaction that is surprised by that rejection, despite how deeply unsurprising it is, and even reaction implying that Obama's outreach has failed, and that his approach was "naive," and so on.

The leader of Hamas isn't buying what Obama's selling? Of course not. He's the leader of Hamas. No speech was going to change his mind. And Obama knows it. The speech is not meant to do that. That is not the sale Obama's looking for.

Yes, the speech presents itself as an invitation to a new beginning of cooperation, and on some level it is. But Obama knows that anti-Americanism won't vanish overnight and be replaced by a new pro-American attitude. That is his stated aspiration, not his genuine rhetorical goal. And anyone who expects him to magically convert all of America's bitterest enemies into allies tomorrow is being naive.

The speech is a beginning: the beginning of a debate. The goal of Obama's address was not to win over America's enemies through his personal eloquence. The goal was to put America's enemies in the Islamic world at a disadvantage in their argument with America's supporters. The leadership of Hamas might come around someday, at least in part, but only in response to political realities on the ground, because other groups are gaining traction against them. Obama wants to lend their opponents some rhetorical traction. Obama is not going to win the hearts or minds of Hamas Hezbollah. But he might put Muslims who share America's goals in a better position to win their own political battles with Hezbollah.

This is a version of what Andrew Sullivan calls Obama's "rope-a-dope" strategy. Obama reaches out an eminently reasonable and conciliatory hand to his opponents, they slap it away, and they make themselves look petty and unreasonable in the process. He's done it to the Republicans over and over again. Now he's done it to hard-liners in the Arab and Muslim worlds, and it's their turn to look bad. Yes, some hard-liners have already denounced Obama's speech. Obama's not interested in them. He's interested in peeling away their supporters. And he doesn't need to do all of the peeling today. This is the fabled Obama long game.

Obama chose to tell some unpopular truths to his audience, and he had a lot of good reasons. It burnished his credibility, as someone who was talking to the Islamic world honestly about the difficult things. It gave listeners a solid outlines of the points that weren't negotiable (with the unstated reminder that the Muslim world will never get a more sympathetic President of the United States, and are looking at the best deal they can expect). But just as importantly, it gave anti-American Islamists a list of talking points that are probably untenable. Obama pushed back on Holocaust denial and calls for Israel's utter destruction, which are real and toxic positions that have to be engaged. But Obama set up the engagements on his terms. If America's opponents want to put all of their chips down on Holocaust denial fantasies, I suspect Obama is looking forward to accepting that bet.

Yes this is a beginning. It's the beginning of an intense argument, in the Muslim world, about Obama and his speech. That argument will be won and lost by Muslims themselves, and not by Obama or any other Westerner, and it has already begun. But Obama has chosen the grounds for the debate, and he's given his supporters the best advantage he could.

The Farrakhan Defense

The response to Dr. George Tiller's death has made me nearly as angry, and more shocked, than even the murder itself made me. It is appalling to see any public figure, no matter how foolish and corrupt, equivocate by condemning a murder but calling the victim of that murder a "monster." It is disgusting to read Megan McArdle's double-voiced paean to vigilantism, which compares the killer's victim to a Nazi, or William Saletan's bankrupt and sophomoric exercise in moral equivalency. Everyone, or almost everyone, makes a token acknowledgment that murder is still a crime, and purports to disapprove. But with that brief obligation dispensed, people evidently feel free to vilify the dead man, the victim of the crime, in the most grotesque and slanderous way, comparing him to Josef Mengele or Pol Pot. The vile O'Reilly actually delivers his pro forma denunciation in a transparently insincere voice, signaling that while "Kansas law" allows what Tiller did, O'Reilly has nothing but contempt for that law. Then he proceeds, much more warmly to repeat his libelous smears on the victim. Then O'Reilly complains of unfair treatment by his critics. Someone has been murdered in a church, and O'Reilly claims that he, O'Reilly, is the victim.

I've never really believed in the decline of our civilization until now. What could be more barbarous, less humane, less civil?

Beyond the indecency of speaking this way while Tiller's widow and family are still grieving, and beyond the rank dishonesty of the smears against him, it is shocking to hear people continue the very demonization that got the man murdered in the first place. Dr.Tiller is discussed, even in his death, as a monster, as someone whose motives with incomprehensibly malevolent, as someone who should not be imagined as real or human. They mouth pious regret for his death, but do their best to erase the life he actually led from the public memory.

Worst of all, they complain about being held accountable for the inflammatory rhetoric that made the crime seem possible, and then sensible, and finally even laudable, to the deranged gunman. They compare a man to genocidal tyrants, and when he is killed they compare him to genocidal tyrants again, and they are shocked, shocked, that anyone would suggest they ought to have spoken differently.

O'Reilly presents, essentially, the Louis Farrakhan defense: He's not responsible for Malcolm X's murder, and should not be blamed for it simply because he was publicly preaching that the Malcolm should be killed. Farrakhan felt he was being unjustly persecuted, too.

O'Reilly, and the other pro-lifers who complain that they are being viewed unfairly, are wrong. They are not being unfairly blamed. They are free from criminal penalty, and from civil suit, because they did not participate in the crime itself. They are free from any censorship of their speech, even their intemperate speech, because they did not explicitly urge the murder. The freedom with which they trash and defile Tiller's memory proves how far from any real fear of censorship they are.

The essence of their position is that it is unfair for others to judge their speech. They will be permitted to say whatever they like, however dishonest or intemperate, however liable to encourage the violent fringe. But it is unfair for listeners to make a judgment about their honesty, their temper, their morals or their wisdom. For the rest of us to listen to them and decide for ourselves is, apparently, a violation of their freedom. Accusing people of murder and comparing them to Hitler is an exercise of their rights. Calling them dangerous demagogues for saying those things is a violation of their rights.

O'Reilly and Carlson and the leaders of Operation Rescue should not be punished by law, or by censorship. But they should be blamed. They have earned an enormous amount of blame. They are free to pose as moral authorities, the rest of us are not obligated to believe it. They can say whatever horrible and morally depraved things they please. But no one has to pretend to like it.