One Nation, Under Guard (Techdirt)
Sunday February 5th, 2012
Bad news about the impending police state here in America: it's already here. From the indefinite detention (without trial) of terrorism suspects both foreign and American to the escalating militarization of our nation's police forces, there's little to indicate that any level of government is willing to "walk back" the overreach of law enforcement, much of which stems from the Patriot Act's anti-terrorism aims.
The New Yorker recently published a piece on incarceration in America, highlighting some very disturbing facts about the "land of the free:"
The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. So, what's contributing to this continued escalation of imprisonment? (Hint: it's not an increase in violent crime. Those numbers are at their lowest level in nearly a half-century.) No, the problem is that the justice system has been put into the position of redefining "criminal activity" while simultaneously having its sentencing discretion removed by national policies:
More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today-perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system-in prison, on probation, or on parole-than were in slavery then. Over all, there are now more people under "correctional supervision" in America-more than six million-than were in the Gulag Archipelago under Stalin at its height.
William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, "The Collapse of American Criminal Justice," was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, "procedural" nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; "zero tolerance" policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. Exhibit A: The War on Drugs. Nothing has been more ineffectual, for a greater period of time, than the supposed War on Drugs. This is directly linked with the other points on Stuntz's list. "Zero-tolerance" policies have taken any sort of perspective or judgment out of the hands of judges and turned possession of minor amounts of controlled substances into 30-year sentences. Zero-tolerance is creeping into other areas of life as well, evidenced by public schools punishing 4-year-old students for hugging each other ("sexual harassment") or the fact that the highest percentage of additions to sexual offender registries are teen boys between the ages of 14-16. Between the growth of zero-tolerance and the expanding definition of such terms as "cyberbullying," "sexual assault" and "terrorism," it's not likely that our nation's incarceration rate will decline any time soon.
This plays right into the hands of the beneficiaries of draconian, zero-tolerance policies: privately-owned prisons.
The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It's hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men: This is at least as chilling as watching our representatives blithely trampling our civil rights, perhaps even more so as you realize that there is likely some connection between mandatory sentencing and the lobbying efforts of private prisons. The enforcement arms of the US government have been pushing to criminalize more and more acts under ambiguous titles such as "cyberterrorism." There has also been little serious effort made towards scaling back either the War on Drugs or the War on Terrorism, despite all evidence pointing to minimal success in either venture.
Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.
Perhaps as a result of declining violent crime statistics, many law enforcement entities are expanding their surveillance areas with the use of spy drones. It's tough to justify budget increases if you don't have enough arrests to back up expenditures on military weapons and vehicles. The solution seems to be to cast the net wider and worry about sorting out the innocents after a few hours (or days) in lockup.
The collected legislative bodies of the United States are pitching in as well, with 40,000 new laws scheduled to go on the books in 2012 alone. While many simply deal with compliance issues or budget woes, the sheer number of new laws is bound to catch a few more "criminals," if for nothing more than a short stay for misdemeanors. Even existing laws, like the 111-year-old Lacey Act, are being used to criminalize citizens, as Gibson Guitars can attest.
In addition, immigration policies are swelling America's imprisoned ranks. ICE has detained thousands of illegal immigrants under the auspices of "detaining and deporting unauthorized immigrants who've been convicted of crimes." While it may be an admirable aim, the facts don't match up to ICE's claims (big surprise):
The FOIA request for information on all immigrants in detention on Oct. 3, 2011, turned up a list of nearly 32,300. Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial. Despite what the term "illegal immigration" implies, simply being in the country without status is a civil, not a criminal, offense. That's about 13,000 non-criminals sitting in detention centers funded by taxpayer dollars and, in some cases, directly benefiting private corporations. With more and more politicians looking to grab voters by touting tough immigration "reform," this will only get worse.
With the expansion of federal surveillance laws and the increase of so-called "secret laws," the government is slowly turning its citizens into criminals, often with the assistance of local law enforcement. Combine this with the still-existent "Can I see your papers?" provision of the Patriot Act, in which a 100-mile area along the US borders is basically a "Constitution-free" zone, and it's easy to see why a declining prison population isn't in our future.
While we may not be at the point where police are sweeping up so-called dissidents with door-to-door raids or locking people up for political reasons, it's really hard to see this as anything more than inevitable. And at what point do you decide that it's enough of a police state to start taking action? Is everything manageable now, but let's give it a few years? Or do we decide that this has gone too far already and a rollback is needed? Even worse, it may be too late. The Patriot Act is over a decade old and no reduction in its powers has seriously been considered by our representatives. The War on Drugs has 30+ years of increasing power and no politician has actively moved towards anything more than some slight decriminalization for medicinal marijuana (which often gets re-criminalized) or has even broached the subject of ending this so-called war.
The worst part is that we're all paying for it. Our tax dollars are being used to put our friends and neighbors in prison. Our money is used to turn 14-year-old boys into sexual offenders and incarcerate large numbers of minorities. It's extracted complicity and as long as those in power continue to see no reprisal for these actions, it will continue until it's truly too late.