The Democrats’ ‘Law and Order’ Trap

Joe Biden standing at lectern with American flags in the background
Partisan competition over how punitive criminal justice should be usually ends with poor black people losing. Photo: Olivier Douliery/AFP via Getty Images

Biden advisers and Democratic donors have become bullish about selecting Florida congresswoman Val Demings as his running mate, with several citing her law-enforcement credentials — she was Orlando’s police chief from 2007 to 2011. Some believe that the Democrats need an ex-cop on their ticket to burnish their “law and order” image against a lawless president. This is a mistake. The only sure outcome of outflanking the GOP on punitive optics is suffering among those who get punished, most of whom will probably not be President Trump.

Much of the speculation about Demings’s stock comes from reports and remarks from Biden and Demings herself. In a May 7 interview with WFTV, the former vice-president singled her out as “one of a group of close to a dozen really qualified and talented women who are on the list.” In response, Demings said on MSNBC’s Morning Joe that she’d be “honored to serve alongside Joe Biden.” Multiple pundits have since built the case for her selection. Columnist David Byler at the Washington Post touted her background as a police chief, saying it could “resonate with some of the blue-collar former Democrats who have drifted toward the GOP in recent years.” (This is an unsubtle euphemism for conservative white people.) In another column, the Boston Globe’s Jeff Jacoby touted her presumed ability to help Biden “reassure moderate blue-collar voters, especially independents and disaffected Republicans, that his administration would bring seasoned experience to law-and-order issues.” John Morgan, a Biden donor and bundler, suggested to Politico that Demings “would give the ticket a law-and-order sheen that Democrats often lack.”

These are all versions of the same argument. Demings, at 63, is a seasoned public servant in good standing with House leadership, with a stirring biography to boot — she grew up poor in Jim Crow Florida, and can now boast a singular place in the state’s law-enforcement history (she was Orlando’s first black woman police chief; her husband was its first black chief) and a central one in Trump’s impeachment, having served as House manager of the process. But the optics she’d provide are equally important. She’s a black woman in an election where the presumptive Democratic nominee vowed to choose a woman running mate, and whose success can be credited, in large part, to overwhelming support from black voters. To hear her boosters tell it, Demings would also give the ticket a heretofore lacking degree of “law and order” legitimacy — both a reassurance to conservative white people that the White House’s new Democratic occupants wouldn’t be too “soft” on crime, and a corrective to the notion that they aren’t punitive enough to begin with.

There’s nothing unique about this reasoning as it pertains to Demings, as an individual, that can’t also be said of other rumored Biden veeps. Senators Kamala Harris and Amy Klobuchar are both reportedly on his shortlist; both are former prosecutors with records that any voter looking for a “law-and-order sheen” would no doubt find as appealing as the Florida congresswoman’s. The issue is less the individual than a particular strain of logic used to promote her. This one is faulty on at least two fronts.

First, the notion that Democrats have a reputation for being less punitive toward lawbreakers than the GOP might be true, in the way that political smears often leave their targets with a reputation. But it’s still at odds with reality. America’s zeal for shuffling people in and out of jails and prisons is bipartisan, and long has been. Biden should know. His central role in devising some of the Clinton era’s more punitive criminal-justice policies — including his authorship of the 1994 Violent Crime Control and Law Enforcement Act — marked the apex of several decades spent by his party partnering with Republicans to greet poverty and public-health crises with harsh policing and imprisonment. This partnership often devolved into competition. After George H.W. Bush defeated Democratic presidential nominee Michael Dukakis in 1988, largely on the strength of ads targeting Dukakis’s past support for prison furloughs, Biden spent much of the subsequent presidential term castigating Bush’s war on drugs as insufficiently harsh. The fallout was racially asymmetrical, usually by design. The black share of America’s incarcerated population, already the largest in the world, far outstrips its portion of the general population.

But if there’s little substance to the concerns that Demings’s boosters are trying to preempt by promoting her, then their main worry is comparative optics — whether or not their party appears less tolerant of lawbreaking than the other, reality notwithstanding. And as the Biden-Bush example shows, we’ve seen where that can lead. At a certain point, there’s not much you can do to prove to people that you’re a “law and order” ticket, or administration, other than deploying “law and order” rhetoric and advancing “law and order” policies. This is especially perilous when your competition is as callous and shameless as the GOP. Precious few Republican officials care if President Trump breaks the law; in fact, they regularly dismiss efforts to hold him accountable as partisanship run amok. Countless examples attest to their willingness to subvert law, truth, democracy, and the safety and well-being of their constituents to secure partisan advantage. This is as evident in their lies minimizing the dangers of the coronavirus as in their willingness to force people to vote in-person, in a pandemic, to suppress turnout and secure electoral wins. (This particular gambit, in Wisconsin last month, ultimately failed to deliver them the Supreme Court seat they wanted; undeterred, they soldier on.)

There are plenty of reasons why Val Demings might be high on Biden’s veep list. Her “law-and-order sheen” might be one of them, and it might even be a credential with broad appeal among Democrats. (Despite its well-documented excesses, law enforcement enjoys enduring bipartisan approval, whether in terms of overall positive impressions or polling support for expanded policing.) But this line of reasoning is also a trap. Partisan efforts to outdo the other side through punitive posturing is a recipe for devising more ways to send people to jail. These might include the president. If history is a guide, they probably won’t. More likely, the people who’ll suffer most from any forthcoming “law and order” pissing contest will be the same people — typically poor, typically nonwhite — who always have.

The ‘Law and Order’ Trap