Mimesis Law
27 September 2020

National Review Beclowns Itself For A Crime Tsunami

January 19, 2017 (Fault Lines) — “I won’t insult your intelligence by suggesting that you really believe what you just said.”

That was a frequent retort by William F. Buckley Jr., the renowned author and forefather of the modern conservative movement, who created National Review magazine.

Yet many Buckley fans found themselves reflexively pondering that very quip this past Monday, when National Review Online decided to commemorate Martin Luther King Day by prominently running this anti-civil liberties screed entitled, “How Donald Trump and Friends Can Crush the Great Crime Wave.”  The author, “retired journalist” Karl Spence, is the creator of such riveting works as “Yo! Liberals!

Spence’s piece in National Review Online is basically an extended copy-and-paste of this column at American Thinker.  It’s a long and rambling jeremiad on how crime is supposedly rampant today, and how the only possible solution must be a constitutional amendment to expedite executions of murderers as a way of deterring rapists.

(Yeah, it didn’t make sense to me either.)

The column itself is batsh*t lunacy of the highest degree, and I recommend reading it only as a form of self-flagellation.  But there are some lessons for those of us who find ourselves discussing the modern-day Rube Goldberg machine that is our criminal justice system.

1. “Data” can deceive. Early in his column, Spence drops a trio of graphs that look like copy from an actual newspaper.  The graphs highlight how certain people will go to great lengths manipulating data to make a “point” that doesn’t exist.


Consider this first graph as an example.  It looks like a wave – a tsunami even!  Scary stuff.

Now look at the scale for the graph.  It’s set as a percentage of an earlier per-capita rate, as opposed to just the per-capita rate itself.  Why would someone bother to go through that effort?

Because it makes things look worse than they are.  If you start with $1 and end up with $5, you’ve had a 400% increase in cash – but you’re still poor.  Likewise with crime statistics.  Spence’s choice for scale artificially inflates something that, on a per-capita basis, is still a generally rare occurrence.

2. Read the fine print. Let’s stick with Spence’s “crime tsunami” graph.  The scale is set as a percentage of per-capita rates “as a percentage of rates in 1960.”


Can we agree that artificially picking 57 years ago as the baseline is weird?  Why not 60 years ago?  Or 50 years ago?  Or really any other year on the graph?

Because if Spence made a different choice for his baseline, his “tsunami” wouldn’t be as big.  Here again we have someone manipulating the data to convince you something is there that isn’t.

3. Understand the fine print. Also notice the tsunami graph claims to show “per-capita crime rates.”

“Crime” here is a misnomer:  Spence is tracking arrests, the accusation by an armed taxpayer-financed agent of the government that someone has allegedly done something wrong.  As long-time Fault Lines readers are aware – see here or here or here or here or here – simply arresting someone is a poor gauge of whether they actually committed the crime alleged.

But there’s more.  Not only is Spence mischaracterizing what he’s showing, he also ignores certain societal trends that show up in the data.  For example: the rise in aggravated assaults coincides with states finally criminalizing and prosecuting domestic violence that previously went ignored.

4. Consider the source. At the very bottom of his column, here’s how the folks at National Review Online describe Spence:

Karl Spence is a retired journalist living in San Antonio.  This article is adapted in part from material first published in National Review (1983), the Chattanooga Free Press (1995–2000), American Thinker (2005–16), and at fairamendment.us

Now, I like you. I value your well-being. And out of my appreciation for you I decided to go visit the fairamendment.us website myself so you could be spared the experience.

In the process I actually read this proposed “Fair Construction Amendment.”  And one quickly realizes the proposal is rooted more in racial fragility than anything related to enforcing the law.

Consider Section 2:

No one in the United States shall be either subject to or entitled to discrimination in education, employment, housing, or public accommodations on account of race.

You may notice this has nothing to do, at all, with the criminal justice system.  It’s little more than typical white identity politics tucked into the middle of something else.

The “let’s hang the murderers quickly!” clause is little better:

So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment. Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.

(Underlines as in the original.)

Criminal defense attorneys across the country are forgiven for wondering what grade of weed Spence smoked when he wrote this. “Any mere technicality” is generally reserved for the guilty/innocent phase of trial. Once convicted, offenders sit in prison pending appeal – and to the extent those appeals themselves prevent “swift and certain retribution,” it’s because the judiciary has funding and personnel diverted by politicians to assorted vote-buying schemes rather than ensuring a functional justice system.

5. Stay up to date. Spence’s end-of-column bio helpfully notes that it reflects material “first published in … 1983.” The lazy and hackneyed reproduction of the same material for 34 years explains how Spence is so comically out-of-date on how the law actually works.

Take the Exclusionary Rule as an example. Spence dedicates a middle third of his column to extended whining about how bad the Exclusionary Rule is for preventing prosecutions.

An extended review of the Exclusionary Rule would require a whole separate post (at least) from me, but the TL;DR of it is this: the Exclusionary Rule is a bit like Chuck Norris’s acting career, it’s still “there” but no one really notices.

The Rule was gutted in 1984 in United States v Leon and Massachusetts v Sheppard, twin decisions by the Burger Supreme Court that found the Exclusionary Rule did not apply if an officer relied on a warrant (characterized as the “good faith exception”).

Not to be outdone, the Roberts Supreme Court pissed on the Exclusionary Rule’s ashes in Herring v United States, with a holding best summarized in this post by the UNC School of Government:

Herring stated that (1) the exclusionary rule is not an individual right and applies only when it results in appreciable deterrence, and the benefits of deterrence must outweigh the costs; (2) the extent to which the exclusionary rule is justified by deterrence principles varies with the culpability of law enforcement conduct; and (3) to trigger the exclusionary rule, law enforcement conduct must be sufficiently deliberate that exclusion can meaningfully deter it and sufficiently culpable that such deterrence is worth the price paid by the criminal justice system.

These judicial precedents are on top of state legislators’ statute-writing, many of which have written both the “good faith exception” and the Herring balancing test into state law (see this North Carolina statute as an example, adopted with support from a majority of both Republicans and Democrats).

The reality is the Exclusionary Rule is useless in practice, and Spence’s crying about it as a basis for further changes to the system is thoroughly divorced from anything even vaguely resembling reality.

With a new presidential administration starting Friday, it will be increasingly difficult over the next four years to find any support for meaningful reform to the criminal justice system. Until competent leadership presents itself we all need to be vigilant to the outlandish garbage peddled by aspiring Dutertes like Karl Spence.

5 Comments on this post.

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  • Jason K.
    19 January 2017 at 1:56 pm - Reply

    Nitpick: I don’t think it is reasonable to call the anti-discrimination proposal “white identity politics’ (so not engaging in racial discrimination is racism?). While it is true that crime is running at or near a 40 year low, taking political potshots undermines your credibility, silly ones doubly so.

    • maz
      19 January 2017 at 3:48 pm - Reply

      I dunno — when I got to that “or entitled to” clause, my dog’s ear pricked up….

      • random observer
        19 January 2017 at 5:57 pm - Reply

        Well it’s certainly a clue that the amendment is anti-affirmative action, for the three people who might not have realized that from the get go. But does that make it “white identity politics” and, if so, does that mean that affirmative action is now a permanent feature of the landscape and unopposable on any grounds?

        What conditions would change that, if any?

  • Jim
    19 January 2017 at 2:18 pm - Reply

    The NRO has been deeply troubled since DJT announced last year.

  • DaveL
    19 January 2017 at 8:04 pm - Reply

    So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment.

    That makes it sound so much better than “the State shall have the power to execute citizens, contrary provisions of the law notwithstanding.”