Stories of consensual crime enforcement

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.

I was reminded of this on May 23, when Jennifer Abel explained the Patriot Act to the Brits in the Guardian. She had this nice quote from the ACLU:

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:

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.

About Mark:
Mark is a computer programmer, website builder, photographer, and sometimes journalist in Chicago, where he also writes the long-running Windypundit blog.
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