THE STATE OF OUR POLICE STATE STATE OF MIND:
How Has Law and Order Been Degraded to this Point?
No president in our lifetime has better exemplified the arrogance of power than Donald Trump. There is no better a perfect metaphor for the state of our police state than a picture of the phalanx of armed men - A Praetorian guard - in front of the Lincoln memorial; unidentified, no name tags, terrifyingly ominous. That image now seems tame compared to the double-down brutishness of Trump 2.0.
But we didn’t get here overnight.
The problem cannot be blamed solely on one man or one party. He is the symptom, not the disease. We continue to deal with problems in a visceral way and that often leads to disastrous results. We link even mundane things like window tint restrictions with crime or high school graduation with the privilege of driving. We pass domestic violence gun-control laws but refuse to deal with gun control, sex crimes and drug databases, restrict bond, etc. They’re all linked to some government sanction as a solution, perhaps well-meaning but many times leading to some other problems.
Where Are the Many Points in the Downward Arc?
It’s always been a balancing act between too much government versus not enough. We over-criminalize and mass incarcerate as if incapacitation were the only solution. We dried up social services and government programs and helped birth a major mental health crisis in mental health that, in turn, placed the problems of draconian overreactions by government in play.
Of the panoply of moments, of the myriad acid drips that have steadfastly worn away at the firmament of our liberties, the most cataclysmic has been 9/11, or more specifically, our response to it. That day, we crossed the Rubicon.
Revenge and fear are powerful emotions. The elixir of the two, this deadly potion, yielded the Patriot Act, FISA, Total Information Awareness, and our acquiescence to the spiraling expansion of the police state. The citizenry was no longer presumed innocent. What previously might have been just a routine traffic stop now developed into a full investigation of all of the occupants, secret cameras on the highways, databases, etc. The War on Drugs was now the war on us.
Can’t Have a Police State Without the Police.
Police are the bulwark of the law and order front line. The job is dangerous and underpaid and they must deal with a citizenry that is pampered and privileged, that has a tendency towards violence, and is potentially heavily armed. Understanding this, the law - and all branches are complicit - had already been accommodating Constitutional proscriptions to the “reality” of their work.
In the process, over the past forty years, our rights have taken a beating, the guardrails against overreach weakened, and the actors more brazen. In that regard, Trump's fileting of the law into thin gossamer strips is nothing new. He is Alexander’s solution to the Gordian Knot, simplistic, dangerous, and counter-productive.
I became a lawyer in 1986 at just about the time that there was this tectonic shift in the law. That's when the Federal sentencing guidelines took effect. At that point the rights of the accused were on the ropes and being pummeled into near unconsciousness. Many states, including my own, followed suit.
The guidelines were just manifestations of a long-standing evolution and signaled what had been happening in this country for a period of time. It's how we got here, afraid of our police, suspicious of our government, and putting up with things a few decades ago would have sounded improbable.
Here, too, it would be convenient to talk about race and the impact of the guidelines. They have had a disastrous effect on persons of color. That is an important discussion to be had. The guidelines have a tremendous impact on everyone accused of a crime and on the rest of us whose rights are further diminished by these things.
That it has been a disastrous experiment can be seen by the fact that there have been numerous attempts to mitigate their impact - from making mandatory minimums less Draconian, the safety valve, conversion ratios, to most recently, the First Step Act.
Monetizing Justice
"There's a lot of money in slavery," a client of mine once quipped. He was complaining that he had been housed in a for-profit jail in Florida somewhere and that his rights were now secondary to what some corporation wanted, demanding exorbitant prices for services like telephone calls and commissary. He was right; the exploitation of personal liberties for economic advantage is slavery. Justice delivery is now just another service industry calibrated to maximize those profits. They have monetized justice.
A few years ago while conferring with an Assistant District Attorney in Baldwin County, I noticed a giant building being constructed. "What is that building?" I asked. It was the new jail. "If the largest building in your town is a jail, you're doing something wrong," I told her. They are now constructing an even bigger addition and it's being done on the backs of penalties, fines, programs, video and phone kiosks, and rents paid by the federal government to warehouse prisoners.
When you go to court - and every court systems I have ever been in is the same now - you will face the issue of pre-trial detention or be forced to pay for a cafeteria plan of costly services (court referral officers, specialized courts, leg monitors, traffic school, color codes, etc.), all leveraged by your liberty interest.
The police, also, are part of that gravy train. Not only do government funds flow to police departments, they get to play GI Joe with sophisticated weapons not meant for the civilian population (tanks, sonic weapons, heat-ray devices). Given the new reality, there is infinitely less accountability for the "Warrior Cop" and the folks who ostensibly oversee them. Things like tort reforms that shield municipalities and states from being sued, the evisceration of the EEOC, and Supreme Court rulings providing cover for police brutality have led us to the point that tactics reserved for enemy combatants (e.g. snipers?) are more likely a norm.
Race
Persons accused of crime are a constituency without representation. In any policy debate or judicial decision, severity is usually the wiser course. The law, this hammer, often peens most harshly along racial lines. Race is an enticing topic, the moth to the flames. Not to diminish its importance but let us also look beyond it. Racism is The dark crusty scab on an ugly wound. Yes, it exacerbates the problem of disparate treatment and the use of the most oppressive mechanism available, governmental action.
"Race", however, distracts us from talking about the underlying roots of what is essentially universal oppression. "Black Lives Matter" is countered by those that say that "All Lives Matter" and they're both right, they are not exclusive or contradictory terms. Let's recognize that race is a very important topic but also that it's a veneer and in many ways a barrier that keeps us from looking at many of the underlying causes of the problem. Lurking underneath is the loss of our freedom in general and the transformation of a society that was essentially libertarian to one of a burgeoning police state. I don't know where we're going but I know where we've been. We need to get back there and that requires more than hand wringing.
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