The central concern of Radley Balko’s new book is what he calls “the militarization of America’s police forces.” The main symptoms of this disease are specialized SWAT teams that were formed to deal with violent emergencies but which now frequently turn “no knock” home invasions in pursuit of drug offenders and evidence into violent and frequently injurious confrontations. The blame for this overkill is shared in Balko’s account by (1) drug warriors creating legislative licenses for no-knock entry, (2) the SWAT team innovation of Daryl Gates in Los Angeles that is now a status symbol in police departments nationwide, (3) the permissive trust of constitutional courts in the motives and veracity of the cops, and (4) public willingness to tolerate excessive force as a law enforcement style against criminals. All of this is encouraged as well by federal programs to share military equipment and provide financial incentives for drug policing.
The angry debate about the proper role of the criminal law in drug control does not organize conveniently around the traditional left-versus-right divisions of political geography in the United States. For a generation now, a civil war of ideas has been waged within the American right between libertarian opponents of state drug control and more traditional law and order conservatives. At the zenith of the American drug war around 1990, prominent conservative and libertarian intellectuals provided leadership for extreme state controls (William Bennett, the first drug tsar) and radical deregulation (Milton Friedman). One of the major amusements that liberal criminologists had when visiting drug conferences at the Hoover Institute back then was to witness the passionate division between distinguished law and order resident fellows like Ed Meese and the libertarian Professor Friedman on the ends and means of the American Drug War. Hoover didn’t have to order out for lively differences of opinion on drugs, then or probably now.
The Criminal Justice System as the Enemy of Liberty
Over the last generation, few legal scholars have been more influential than Harvard Law School’s Professor William J. Stuntz. In a brilliant legal career that began as a student, and later a faculty member, at the University of Virginia School of Law – where I had the privilege of being one of his students twenty years ago – Stuntz consistently blazed new trails in criminal procedure scholarship. Before he entered the scene, much of the literature divided along the usual left-right lines. Liberals generally defended the Warren Court’s activism in criminal procedure as promoting fairness and equality, particularly for minorities and the poor, while the field’s few conservatives bitterly criticized the Court for, in effect, handcuffing the police with improper procedural mandates that made it harder to solve crimes.
Both sides, Stuntz argued, were wrong. Miranda v. Arizona (which made advice of rights a constitutional prerequisite to the admissibility of custodial confessions), Mapp v. Ohio (which required states to exclude at trial illegally seized evidence), and other controversial Warren Court decisions neither handcuffed the police nor made criminal trials more just. To the contrary, they fueled the politicization of criminal law, making law enforcement’s job easier instead of harder. They also worsened problems of unfairness and inequality by giving prosecutors enormous, virtually unchecked power to coerce innocent and guilty defendants alike to waive their constitutional rights and plead guilty.