This story first appeared on the TomDispatch website.
If all you've got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves "solving" social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago.
By now, the militarization of the police has advanced to the point where "the War on Crime" and "the War on Drugs" are no longer metaphors but bland understatements. There is the proliferation of heavily armed SWAT teams, even in small towns; the use of shock-and-awe tactics to bust small-time bookies; the no-knock raids to recover trace amounts of drugs that often result in the killing of family dogs, if not family members; and in communities where drug treatment programs once were key, the waging of a drug version of counterinsurgency war. (All of this is ably reported on journalist Radley Balko's blog and in his book, The Rise of the Warrior Cop.) But American over-policing involves far more than the widely reported up-armoring of your local precinct. It's also the way police power has entered the DNA of social policy, turning just about every sphere of American life into a police matter.
The School-to-Prison Pipeline
It starts in our schools, where discipline is increasingly outsourced to police personnel. What not long ago would have been seen as normal childhood misbehavior—doodling on a desk, farting in class, a kindergartener's tantrum—can leave a kid in handcuffs, removed from school, or even booked at the local precinct. Such "criminals" can be as young as seven-year-old Wilson Reyes, a New Yorker who was handcuffed and interrogated under suspicion of stealing five dollars from a classmate. (Turned out he didn't do it.)
Though it's a national phenomenon, Mississippi currently leads the way in turning school behavior into a police issue. The Hospitality State has imposed felony charges on schoolchildren for "crimes" like throwing peanuts on a bus. Wearing the wrong color belt to school got one child handcuffed to a railing for several hours. All of this goes under the rubric of "zero-tolerance" discipline, which turns out to be just another form of violence legally imported into schools.
Despite a long-term drop in youth crime, the carceral style of education remains in style. Metal detectors—a horrible way for any child to start the day—are installed in ever more schools, even those with sterling disciplinary records, despite the demonstrable fact that such scanners provide no guarantee against shootings and stabbings.
Every school shooting, whether in Sandy Hook, Connecticut, or Littleton, Colorado, only leads to more police in schools and more arms as well. It's the one thing the National Rifle Association and Democratic senators can agree on. There are plenty of successful ways to run an orderly school without criminalizing the classroom, but politicians and much of the media don't seem to want to know about them. The "school-to-prison pipeline," a jargon term coined by activists, is entering the vernacular.
Go to Jail, Do Not Pass Go
Even as simple a matter as getting yourself from point A to point B can quickly become a law enforcement matter as travel and public space are ever more aggressively policed. Waiting for a bus? Such loitering just got three Rochester youths arrested. Driving without a seat belt can easily escalate into an arrest, even if the driver is a state judge. (Notably, all four of these men were black.) If the police think you might be carrying drugs, warrantless body cavity searches at the nearest hospital may be in the offing—you will be sent the bill later.
Air travel entails increasingly intimate pat-downs and arbitrary rules that many experts see as nothing more than "security theater." As for staying at home, it carries its own risks as Harvard professor Henry Louis Gates found out when a Cambridge police officer mistook him for a burglar and hauled him away—a case that is hardly unique.
Overcriminalization at Work
Office and retail work might seem like an unpromising growth area for police and prosecutors, but criminal law has found its way into the white-collar workplace, too. Just ask Georgia Thompson, a Wisconsin state employee targeted by a federal prosecutor for the "crime" of incorrectly processing a travel agency's bid for state business. She spent four months in a federal prison before being sprung by a federal court. Or Judy Wilkinson, hauled away in handcuffs by an undercover cop for serving mimosas without a license to the customers in her bridal shop. Or George Norris, sentenced to 17 months in prison for selling orchids without the proper paperwork to an undercover federal agent.
Increasingly, basic economic transactions are being policed under the purview of criminal law. In Arkansas, for instance, Human Rights Watch reports that a new law funnels delinquent (or allegedly delinquent) rental tenants directly to the criminal courts, where failure to pay up can result in quick arrest and incarceration, even though debtor's prison as an institution was supposed to have ended in the nineteenth century.
And the mood is spreading. Take the asset bubble collapse of 2008 and the rising cries of progressives for the criminal prosecution of Wall Street perpetrators, as if a fundamentally sound financial system had been abused by a small number of criminals who were running free after the debacle. Instead of pushing a debate about how to restructure our predatory financial system, liberals in their focus on individual prosecution are aping the punitive zeal of the authoritarians. A few high-profile prosecutions for insider trading (which had nothing to do with the last crash) have, of course, not changed Wall Street one bit.
The past decade has also seen immigration policy ingested by criminal law. According to another Human Rights Watch report—their US division is increasingly busy—federal criminal prosecutions of immigrants for illegal entry have surged from 3,000 in 2002 to 48,000 last year. This novel application of police and prosecutors has broken up families and fueled the expansion of for-profit detention centers, even as it has failed to show any stronger deterrent effect on immigration than the civil law system that preceded it. Thanks to Arizona's SB 1070 bill, police in that state are now licensed to stop and check the papers of anyone suspected of being undocumented—that is, who looks Latino.
Meanwhile, significant parts of the US-Mexico border are now militarized (as increasingly is the Canadian border), including what seem to resemble free-fire zones. And if anyone were to leave bottled water for migrants illegally crossing the desert and in danger of death from dehydration, that good Samaritan should expect to face criminal charges, too. Intensified policing with aggressive targets for arrests and deportations are guaranteed to be a part of any future bipartisan deal on immigration reform.
As for the Internet, for a time it was terra nova and so relatively free of a steroidal law enforcement presence. Not anymore. The late Aaron Swartz, a young Internet genius and activist affiliated with Harvard University, was caught downloading masses of scholarly articles (all publicly subsidized) from an open network on the MIT campus. Swartz was federally prosecuted under the capacious Computer Fraud and Abuse Act for violating a "terms and services agreement"—a transgression that anyone who has ever disabled a cookie on his or her laptop has also, technically, committed. Swartz committed suicide earlier this year while facing a possible 50-year sentence and up to a million dollars in fines.
Since the summer, thanks to whistleblowing contractor Edward Snowden, we have learned a great deal about the way the NSA stops and frisks our (and apparently everyone else's) digital communications, both email and telephonic. The security benefits of such indiscriminate policing are far from clear, despite the government's emphatic but inconsistent assurances otherwise. What comes into sharper focus with every volley of new revelations is the emerging digital infrastructure of what can only be called a police state.