How Far Down Do You Define Deviancy in Ferguson?

The late Daniel Patrick Moynihan's celebrated phrase "defining deviancy down" first appeared in a 1993 essay in The American Scholar. "I proffer the thesis," wrote Moynihan, "that, over the past generation...the amount of deviant behavior in American society has increased beyond the levels the community can 'afford to recognize' and that, accordingly, we have been re-defining deviancy so as to exempt much conduct previously stigmatized."

What used to be a civil rights movement has drawn a bright line behind the late Michael Brown, whose guilt in two violent felonies (robbing a convenience store while assaulting a store clerk, and assaulting a police officer) is not in dispute. It is sad, to be sure, that Brown died in a confrontation with a police officer, but no legal case can be made that the police officer rather than Brown chose to make the confrontation deadly.

Two generations ago the NAACP chose Rosa Parks as the subject of its anti-segregation lawsuit in Montgomery, AL, because she was a woman of unexceptionable character and reputation. Today the NAACP and its allies have chosen Michael Brown as their poster-boy, precisely because he was a violent criminal. The argument of what now might be termed a "criminals' rights movement" is that the police should not have the right to use force against felons whose crimes do not reach a certain threshold. What that threshold might be seems clear from the repeated characterization of Brown as an "unarmed black teenager." Unless violent felons use deadly weapons, it appears, the police should not be allowed to use force.

To restate the "civil rights" argument in a clearer way: Young black men are disproportionately imprisoned. One in three black men have gone to prison at some time in their life. According to the ACLU, one in fifteen black men are incarcerated, vs. one in 106 white men. That by itself is proof of racism; the fact that these individuals were individually prosecuted for individual crimes has no bearing on the matter. All that matters is the outcome. Because the behavior of young black men is not likely to change, what must change is the way that society recognizes crime itself. The answer is to remove stigma of crime attached to certain behavior, for example, physical altercations, petty theft, and drug-dealing on a certain scale. The former civil rights movement no longer focuses its attention on supposedly ameliorative social spending, for example, preschool programs for minority children, although these remain somewhere down the list in the litany of demands. What energizes and motivates the movement is the demand that society redefine deviancy to exclude certain classes of violent as well as non-violent felonies.

The logic  of the criminals' rights movement is as clear as it is crazy: Because the outcome of the criminal justice system disproportionately penalizes African-Americans, the solution is to decriminalize behavior that all civilized countries have suppressed and punished since the dawn of history.  Because felonious behavior is so widespread and the causes of it so intractable, the criminals' rights movement insists, society "cannot afford to recognize" criminal behavior below a certain threshold.

If America were to accept this logic, civil society would come to an end. The state would abandon its monopoly of violence to street rule. Large parts of America would come to resemble the gang-ruled, lawless streets of Central America, where violent pathology has overwhelmed the state's capacity to control it, creating in turn a nightmare for America's enforcement of its own immigration law.

The solution is stricter rather than looser enforcement of the laws. The borderline between individual criminal behavior and civil insurrection has become fuzzy. If American prisons become too full or too costly, outsource the incarceration of criminals to less expensive venues, as Prof. Reuven Brenner of McGill University proposed some years ago. Out of Moynihan's and other's work came "broken windows policing." The number of violent crimes per 100,000 inhabitants fell from 747 when Moynihan's article appeared in 1993 to 387 in 2012. If we abandon the rule of law we abandon America.