If you read Radley Balko’s excellent Agitator blog (which you should) or one of the legal blogs which covers the injustices of our legal system, such as Scott Greenfield’s Simple Justice, you’re probably aware of the various ways in which the police, the prosecutors, and the courts are trampling all over our rights. I’m talking about civil asset forfeiture, violent SWAT home invasions, intrusive and often secret investigations of ordinary American lives, along with a general militarization of the police, and erosion of our Fourth Amendment rights against unreasonable search and seizure.
I run into a fair number of people in the blogosphere and in real life who are aware of these problems — and who are angered by them — and yet they think that legalizing consensual crimes (drugs, prostitution, gambling) is a dangerous fringe idea. This surprises me, because I’ve long thought that these two issues were related. Police and prosecutors trample on our civil liberties, in large part, because of the laws on consensual crimes.
It happens because consensual crimes present a unique enforcement problem: There is no complaining witness, no victim. Everybody on all sides of these illegal transactions wants to keep the police from finding out about them. Which means that a big part of any police investigation of consensual crime is proving that a crime happened at all. This requires a style of investigation that evolves with almost no voluntary cooperation from the community. So in order to succeed, police have to use enforcement tactics that are sneaky, deceptive, coercive, and violent. Almost every overbearing tactic introduced by the police in the last 40 years is due to the enforcement of laws against consensual crimes, such as prostitution and gambling. But mostly, of course, because of the need to enforce the war on drugs.
Most of the changes to surveillance law made by the Patriot Act were part of a longstanding law enforcement wishlist that had been previously rejected by Congress, in some cases repeatedly.
This was obvious to a lot of people at the time. Here is Instapundit Glenn Reynolds on the Patriot Act, before it became the Patriot Act:
This stuff isn’t patriotism. It’s bureaucratic opportunism. All sorts of stuff will come out of the closet, get dusted off, and be relabeled a “response to the terrorist attacks” even though it has nothing to do with them and was sought by bureaucrats for their own reasons long before.
Clearly, if these laws were sought after by government agencies and law enforcement long before 9/11, then they had little do do with terrorism and everything to do with our government’s usual obsession: Drugs.
As Jennifer put it:
The first thing you need to understand about the Patriot Act is this: Osama Bin Laden’s destruction of the World Trade Centre wasn’t the reason the act was passed; it was merely the excuse. The real reason dates back to the 1980s, when President Ronald Reagan demonstrated his principled commitment to personal liberty and small government by turning the “war on drugs” up to 11.
Of course, the constitution as it’s written makes drug laws difficult to enforce. Police learn about most crimes – real crimes – when the victims report them to the police. But there’s no victim to complain when a willing buyer purchases a product from a willing seller, so drug cops looking to make arrests and justify their existence had to resort to privacy violations and fishing expeditions instead.
Then came the terrorist attacks of 11 September 2001, the most horrific in my country’s history. But it was also the answer to every drug warrior’s prayers: they finally got the unconstitutional powers they craved, and under a spiffy patriotic acronym to boot.
The Patriot act was only one of many ways the government has trampled our rights in the War on Drugs, and I think the link between consensual crime and our increasingly abusive police state is pretty obvious.
To explore this link a bit, I decided to spend a month keeping track of all the stories I found in my daily reading that were about abuses of our rights in the name of fighting consensual crime. The list is hardly exhaustive, and some of these events took place before the month in question but were reported during it (just as some of the events that took place during the month will be reported later), so think of this less as a proof and more as a demonstration.
Here’s what I read:
- May 23: Jennifer Able reminds Guardian readers that the Patriot Act was really all about the War on Drugs.
- May 23: The AP reported on the use of prepaid cards by criminals, complete with whiny quotes from ICE agent John Tobon. They mention terrorism but when you keep reading it’s all about the drugs.
- May 23: Scott Greenfield posts about civil forfeiture abuse and an investigation into Tennessee’s drug task forces. (Drug task forces are almost always a sign of policing for profit.) They even fight with each other over the money.
- May 23: Reason‘s Tim Cavanaugh writes about the stupidity that lead the Pima County, Arizona SWAT team to shoot and kill a former Marine and veteran of the Iraq war because they thought he might be involved in a drug gang. No drugs found so far.
- May 23: Reason‘s Jesse Walker points us to a story about a two-year undercover sting that nabs “(a) four poker players, (b) some unrelated drug dealers, and (c) an activist pressured by an undercover cop into showing up at a drug deal.”
- May 23: Siddhartha Mahanta at Mother Jones reports that the DEA had someone involved in the 2008 Mumbai terrororist attacks on its payroll as a drug informant.
- May 24: The Institute for Justice and the National Association of Criminal Defense Lawyers proposed model state legislation to eliminate in rem civil asset forfeiture, which is often little more than state-sanctioned theft by police departments as part of the War on Drugs.
- May 24: Reason‘s Jacob Sullum writes about the inconvenience of buying pseudoephedrine, acetaminophen, and aspirin because of laws concerning abuse.
- May 25: Reason‘s Jacob Sullum writes about the Supreme Court’s recent “exigent circumstances” ruling, over a case where cops claimed the had to break in to stop the destruction of drug evidence.
- May 25: Scott Greenfield posts about federal prosecutors screwing with the defendant’s right to counsel in a drug case.
- May 25: Scott Greenfield posts about police attacking a guy in a wheelchair because he had booze in public.
- May 25: Radley Balko’s first piece for the Huffington Post recounts the killing of U.S. Marine Jose Guerena by the Pima County, Arizona SWAT team while looking for evidence of drug smuggling. It appears that no drugs were found.
- May 26: Matt Welch from Reason appears on the Alonya Show to discuss how the war on crime lead to a bipartisan effort that has crushed our Fourth Amendment rights.
- May 27: Radley Balko posts more about the Pima drug raid.
- May 27: Radley Balko posts about a mistaken raid for child porn.
- May 27: Radley Balko posts video from a drug raid where SWAT thugs throw flash grenades and shoot dogs.
- May 27: Immigration and Customs Enforcement agents once again prove they are a greater threat to our way of life than any immigrant by launching a violent SWAT raid, this time for child porn. I’m not sure if they found anything, but one of the occupants miscarried three days later.
- May 28: Radley Balko posts a response to another blogger that directly addresses the issue I’m tracking: “No, It Really Is Because of the Drugs”
- May29: U.S. Citizen arrested in Thailand of insulting the Thai king on the internet. But Radley Balko ties it to the U.S. arresting foreign executives who ran gambling sites used by Americans.
- May 30: Steve Chapman writes about California’s prison overcrowding problem, which is exacerbated by having 25,000 people serving time for non-violent drug offenses. (Even if you think you’re not interested in this issue, read Steve Chapman’s first three paragraphs.)
- May 31: Miami criminal defense lawyer Brian Tannebaum writes about a woman arrested for possession of marijuana before police had any actual evidence of marijuana. Spoiler alert: There was never any marijuana.
- May 31: Indiana Governor Mitch Daniels vetoed a bill that would have allowed police and prosecutors to keep up to 90% of what they take by forfeiture, a legal tactic that began in the war on drugs.
- June 2: Reason‘s Nick Gillespie writes about an armed raid on an Amish farmer for selling raw milk. Not the usual sort of consensual crime, but really, an armed raid on an Amish guy? For selling milk?
- June 2: Reason‘s Jacob Sullum writes about urine testing, which is about as direct a link between consensual crimes and privacy invasion as you can get.
- June 3: California decides to keep charging pot growers as felons despite prison overcrowding.
- June 6: Reason‘s Matt Welch posts about the damage our war on drugs has done to, well, everything.
- June 7: Police do a drug raid, shoot at the dog as usual, but hit a guy instead.
- June 10: Medical marijuana users in Colorado have to give up a lot of privacy rights.
- June 13: Reason‘s Jacob Sullum reports on the fear and uncertainty caused by Attorney General Eric Holder’s position (or lack thereof) on medical marijuana.
- June 15: Lawsuit filed after yet another botched drug raid, looking for someone who was long gone.
- June 17: Cops taking money from people playing online poker. No criminal conviction required.
- June 19: William Cooper, shot dead by drug cops investigating the possibility that he might be selling his pain pills.
- June 15: Reason‘s Jacob Sullum posts about warrentless, causeless, drug testing for school children.
- June 15: Reason‘s Jacob Sullum posts about the damage our war on drugs has done to, well, everything.
- June 15: Reason’s Nick Gillespie and Matt Welch talk about the collateral damage from the drug war.
- June 16: Reason‘s Jacob Sullum posts about Indiana Governor Mitch Daniels’ veto of a bill that would have allowed even more abusive civil forfeiture.
By coincidence, Scott Greenfield at Simple Justice ties it all up for us rather nicely with yesterday’s post:
The linchpin was harm. The priority of law enforcement was to prevent harm to citizens. If the target of their attention was a person who was armed and dangerous, in the real sense rather than the currently presumed sense, the police took extreme action to try to stop their target from doing further harm.
With the initiation of the war on drugs, the priority shifted from prevent harm to eradicating drugs. No longer did police limit their actions toward people who were likely to be violent toward others, but rather toward people who they believed were engaged in selling drugs. Soon, the presumption that drug dealers were armed became part of the justification to employ extreme force
We have become inured to the trade-offs. We have come to accept collateral damage as the price that must be paid, wrapped up in platitudes that rationalize why it can’t be helped. It wasn’t always this way. It doesn’t have to be this way. It can be helped.
I certainly hope he’s right.
Mark is a computer programmer, website builder, photographer, and sometimes journalist in Chicago, where he also writes the long-running Windypundit blog.