Last December, before this blog came to be, I posted a comment to the Slate Fray about the debate over John Walker Lindh, expressing concern that current American law, with its focus on concrete criminal actions, may not be up to the task of prosecuting terrorist "sleeper" agents stationed in the US, quietly awaiting the command to attack. I suggested the RICO statute, used so successfully against organized crime syndicates, as one possible solution to the problem. Well, the idea (which had unsurprisingly crossed other minds before mine) has finally made it into Slate--as a sarcastic, "Modest Proposal"-style critique of the broad reach of federal conspiracy law. Apparently, Stanford law professor Robert Weisberg considers RICO and its ilk such egregious abuses of government power that merely pointing out that they might cover "dirty bomb" suspect Jose Padilla is enough to discredit them completely. (Not everyone caught his sarcasm, and Weisberg ended up having to explain himself. I suggested in response that if he wanted to attack federal conspiracy statutes, he might consider pointing to at least one specific case of an actual not-so-horrible person who was unfairly prosecuted under those laws, rather than shouting, "they're so vague they could even be used to prosecute Al Qaida sleeper agents awaiting the call to commit murderous terrorist acts!")
Of course, a law professor can be expected to view the criminal justice system as a means to the end of satisfying the quasi-religious abstract aesthetic of civil libertarians. But what about the public response to the now-infamous Inglewood videotape? The whole country has now watched Inglewood police officer Jeremy Morse slam arrested teenager Donovan Jackson onto the hood of his car and cuff him in the face--no prolonged beating with batons, just a slam and a punch--and everywhere the reaction is outrage. Michelle Cottle, while defending the police against charges of racism, concedes without argument that "[t]he tape shows some pretty nasty business", and that it's "abundantly clear" that "excessive force was used". Jack Dunphy, the National Review's resident pseudonymous policeman and a stout defender of his profession, also acknowledges that "it seems plain from watching the videotape" that Morse "used excessive force", and suggests that the deputies on the scene of the incident "were troubled by what they had witnessed." And that's what the defenders of the police are saying. Perhaps that's why there are no fewer than five investigations underway, and the surreptitious videorecorder of the arrest can be heard on the tape commenting about the offending officer, "You just lost your job, buddy."
Now, we don't know all the facts of the incident, and it's possible that it was nothing more than an unprovoked display of sadistic brutality. But the officers in question apparently reported--before knowing about the videotape--that they had had to punch a lunging Jackson to subdue him before he was handcuffed. While the rules do supposedly dictate that once handcuffed, a suspect must be treated with kid gloves, it seems to be common knowledge that the police don't normally follow that particular rule. And in fact, I doubt that such a rule is even workable, for the simple reason that if a misbehaving suspect is treated exactly like a quiescent one once the cuffs are on, then the disincentive to "get one's licks in" before the cuffs are applied largely disappears. Although I don't have the statistics at hand, I would be very surprised, for that reason, if the number of "difficult" arrests hasn't skyrocketed since concerns about police brutality have made it harder for the police to deal harshly with those who resist arrest.
But complaints about the Inglewood videotape and the RICO statute are not about the messy practicalities of fighting crime and protecting the innocent. They're about obeisance to a strange American dogma, which requires that law enforcement authorities be assumed to be ruthless, oppressive monsters at all times, however honorable, difficult and carefully-performed their job. The dogma does not make law enforcement any more effective, nor, as the Iglewood incident shows, does it make the police any more gentlemanly towards the public; mostly it just encourages dishonesty and hypocrisy on the part of the authorities, as they struggle to maintain the appearance of adherence to the absurdly unrealistic standards of conduct imposed upon them. But societies are often willing to pay a high price for the sake of clinging to their religious beliefs, and America is no exception.