Since the 1968 presidential campaign of Richard Nixon and especially since Ronald Reagan, the Republican Party has engaged in grievance politics, fearmongering and criminalizing the identities of nonwhite people. Behind the rhetoric of “law and order,” the GOP has successfully weaponized the law against the weak, the powerless and the marginal on behalf of white people, the powerful, and other privileged classes.
When it comes to the rhetoric and practice of “law and order,” as I argue in my forthcoming book “Indicting the 45th President,” the primary differences between the GOP of old and the Trumpian party of today is that the latter has sought to weaponize the law against law enforcement itself, especially the Department of Justice and the “deep state.” Perhaps nothing exemplifies this more than the 147 Republican House members who voted not to certify the 2020 election.
After the three-week hunt for the next House speaker, Republican memberss unanimously voted for Rep. Mike Johnson of Louisiana, who has been called “a Biblical literalist, an unapologetic Christofascist who wants to impose a White Christian theocracy on American society.” Johnson’s rise from obscurity materialized after Rep. Tom Emmer of Minnesota, only a “moderate” in relative terms, abandoned his bid only hours after winning the internal party nomination because Donald Trump issued a fatwa against him for having voted to certify the election. Johnson, on the other hand, played a leading role in the effort to overturn the 2020 election. Now the Trumpian majority in the House and the party of lawlessness and disorder can keep the Big Lie alive as a political tool, to defend the former president and his 2024 candidacy from his 91 felony charges while they go after President Biden’s imaginary “crime family” as well as very real federal and state judicial bodies.
With the exception of the four presidential races in this century (in 2004, 2008, 2012 and 2020) that have followed various high profile white-collar and corporate crimes, Republicans have consistently and disingenuously played the “crime card,” regardless of whether street crime was high and rising, as in the 1960s, 1980s and early 1990s, or was comparatively low during the 2000s and thereafter. Meanwhile, corporate crime scandals have unfolded under Republican rule, involving such now-infamous entities as Adelphia Communications, AIG, Arthur Andersen, Bear Stearns, Dynegy, Enron, IndyMac, Lehman Brothers, Theranos, Washington Mutual and WorldCom, not to mention the massive Trump corruption during his tenure in the White House. In short, the Republican playbook has always been to falsely depict Democrats as “soft” on crime and overly lenient on punishment.
Despite the abundance of evidence to the contrary, these mythic beliefs have hardened in the minds of both Republicans and Democrats. A recent NBC News national poll found that 46% of Americans believe that Republicans will do a better job on crime, while only 20% favor Democrats. As for “protecting our constitutional rights,” the poll also found that Republicans were favored, 43% to 35%. Perhaps most alarming, the parties were even on “protecting democracy,” with 37% favoring Democrats and 36% Republicans.
The social realities with respect to both crime in general and the contrast between “suite crime” and “street crime” can help demystify the belief that the GOP is the party of “law and order.” To begin with, both parties have for the most part been soft on white-collar and corporate criminals and favored lenient punishment for those convicted. On occasion, the Democrats have attempted to regulate if not control securities crimes, for example after the Wall Street implosion with the Dodd-Frank Act in 2010. Meanwhile, when it comes to street crimes, which can be understood as crimes of the powerless, since the 1980s both parties have favored harsh law enforcement tactics and severe criminal penalties.
One year out from the 2024 elections, Republicans are already playing the crime card against Democrats, even though FBI official crime data reveals, year in and year out, that both property crimes and personal crimes are generally worse in red states. In 2020, for example, the average murder rate was 40% higher in Trump-voting states than in Biden-voting states.
As Kylie Murdock and Jim Kessler write in a report for Third Way: “The rate of murders in the U.S. has gone up at an alarming rate. But, despite a media narrative to the contrary, this is a problem that afflicts Republican-run cities and states … more than the Democratic bastions.” In the 25 states that voted for Trump in 2020, the murder rate has exceeded the murder rate in the 25 Biden states during every single year from 2000 to 2020. “Over this 21-year span, this red state murder gap has steadily widened from a low of 9% more per capita” in 2003 and 2004 to 44% more per capita in 2019, “before settling back to 43% in 2020.”
Historically, the myth that the GOP is the party of “law and order” has worked for two primary reasons. First and foremost, both Republicans and Democrats, as already noted, have largely ignored “suite” crimes, as if they do not matter or do not exist, while effectively identifying “street” crime as the only crime problem in America.
Concurrently, liberal and progressive Democrats have periodically embraced “best practices” such as the First Step Act, which had bipartisan backing and was signed into law by Donald Trump in 2018. Unsurprisingly, the FSA has been judged to have little value and does not apply to 90 percent of the inmates in America. Most evaluations have concluded that the act has had marginal impact, and now a chorus of activists calls for three additional pieces of legislation that “would not only improve the effectiveness of federal inmate rehabilitative programming but also bring greater fairness to the federal sentencing scheme.”
Whatever effect these laws might have for some incarcerated people, I do not believe any of them will materialize as law before the 2024 election, despite bipartisan support. They do represent a hypothetical first step in returning the federal prison system and its crime prevention and control policies to those of the 1940s through the 1960s, which were far more effective than the harsher policies put in place in the 1980s and ‘90s — which remain the governing framework of law enforcement and crime control across all 50 states.
My larger point is that for the past 50 years, our two major parties have both been light on “suite” crime and postured as tough on “street” crime, although the former are understood by all serious scholars to be far more costly and dangerous to the welfare of society.
For example, the bipartisan supermajorities in Congress that passed the Comprehensive Crime Control Act of 1984 (signed by Reagan) and the Violent Crime Control and Law Enforcement Act of 1994 (signed by Bill Clinton) were conspicuously silent about the epidemic of white-collar and corporate crime epitomized at the time by the savings and loan scandals. Those draconian laws not only resulted in mass incarceration of poor and nonwhite people, they also radically altered the directions of those more enlightened crime control policies put into practice when Lyndon Johnson signed the Omnibus Crime Control and Safe Streets Act of 1968.
To state it clearly, those two national pieces of “crime control” legislation are primarily responsible for our repressive systems of criminal justice. Over the past several decades, a rich and growing body of empirical evidence shows that U.S. policies on street crime prevention and criminal control display an exceptional penchant for punitive punishment when compared to our own past practices or to those of other developed nations. As Lila Kazemian wrote in a 2022 journal article:
The imprisonment rate in the United States is approximately four times higher than the average rate in Europe, and nearly eight times higher than in the Netherlands and Germany. American prisons are estimated to hold 40% of individuals sentenced to life worldwide and 83% of those sentenced to Life Without the Possibility of Parole (LWOP). Data suggest that the average sentence length imposed in many U.S. states is more aligned with the criminal justice policies of less developed nations (Latin American countries specifically) than those of more industrialized countries.
Bipartisan strategies of crime control appear similar to bipartisan strategies on social welfare and immigration. From a criminogenic framework these policies are catalysts for crime, and often counterproductive to their alleged goals. Since the mid-1990s, U.S. immigration policy has been based on strategies of “prevention through deterrence.” Making it more difficult to seek asylum or separating family members, for example, was intended to drive down the number of immigrants seeking entrance. That might work to some degree, but the reasons causing people to leave their home countries have not changed, so the increased risks and costs have led to unintended consequences, most notably fueling organized crime activity on the U.S.-Mexico border. Smuggling human cargo has become a highly lucrative industry, up there with selling and buying drugs and weapons.
As U.S. policies have pushed migrants to remain in other countries, and as these strategies have relied on third countries like Mexico for enforcement, official corruption in those nations has exploded. Meanwhile, the U.S. has done next to nothing to halt the flow of guns south to Mexico and Latin America, while Mexico has been doing little to impede the flow of opioids northward to meet U.S. demand. The paradox here is that increased enforcement in either direction, or unilateral U.S. intervention in Mexico — as endorsed by Trump and many other Republicans — would only enhance the political power of criminal cartels against the Mexican state.
The more Republican crime policies change, the more they remain the same. On political and governmental crime, “law and order” Republicans have consistently been on the wrong side of the law. Even putting aside Donald Trump’s historic record for corruption, obstruction of justice and attempted insurrection, we must not forget the ongoing pattern of criminal actions by GOP presidents and their administrations: Nixon and Watergate, Reagan and Iran-Contra, George W. Bush and Abu Ghraib.
There was indeed some modest accountability for the perpetrators of Watergate and Iran-Contra, along with pardons for the men at the top of those criminal pyramids. But there were zero prosecutions for those responsible for Abu Ghraib and other war crimes in Iraq and Afghanistan, approved and authorized by Bush, Dick Cheney, Donald Rumsfeld and numerous legal advisers. Only military grunts serving as prison guards and carrying out direct orders were prosecuted and held to account for these crimes.
One primary difference between Trump and his Republican predecessors is that the latter were eager to conceal their lawlessness and criminality while Trump commits many of his crimes in plain sight. Part of Trump’s gaslighting brilliance has been his ability to get leading Republicans either to go along as accomplices or to look the other way as enablers. They know, after all, that any disloyalty to Trump can result in a sentence of political exile or death, as in the case of former Rep. Liz Cheney.
While political campaigns feature selective and conflated cherry-picking about crime, and often bipartisan agreements about crime control, there is almost never any tangible recognition or substantive public discussion about controlling white-collar, corporate or governmental crime.
Bipartisan normalization of the crimes of the powerful, and the institutionalized non-enforcement of any relevant laws, serve to reinforce the illusion that “suite” crime is not a problem. Actual prosecutions of corporate criminals have declined steadily ever since the 2004 re-election of George W. Bush.
According to an analysis of Justice Department data by the Transactional Records Access Clearinghouse, a nonprofit data-gathering organization at Syracuse University, “business prosecutions fell to a record low in fiscal year 2022 even as there appeared to be no shortage of wrongdoing — from healthcare fraud to large-scale price fixing.” For example, more than 4,000 federal white-collar prosecutions occurred last year. Of those, less than 1%, or just 31 defendants, were businesses or corporate entities. That was “the lowest number of criminal prosecutions of business entities” since TRAC began tracking white-collar crime during the Reagan administration.
Is it any wonder that the party of “law and order” is running, for a third time, a consummate crime boss as its presidential candidate — a narcissistic sociopath who has violated laws of every conceivable category? Even facing four criminal indictments, Donald Trump is still giving law enforcement and the U.S. Constitution the middle finger, while continuing to swindle his supporters out of millions.
