THE BLOG
08/14/2014 05:19 pm ET Updated Oct 14, 2014

American Police State(s)

The killing of Michael Brown in Ferguson, Missouri, on Saturday night and the subsequent outcry over police tactics carried out by a force often indistinguishable from an occupying army have brought heightened scrutiny to the militarization of American policing. But a peculiarity of our system of government continues to obscure the extent to which the rights of ordinary Americans are being trampled in ways that we would readily recognize as fundamentally authoritarian were we witnessing it overseas. Because American governing power is constitutionally dispersed, and because our conception of a police state derives more from cultural touchstones like Orwell's 1984 or your standard Schwarzeneggerian dystopia, we remain blasé about what we are becoming. Decentralized predation, however, still tyrannizes, even when the national government isn't directly responsible for it. And police-state federalism is becoming the norm for growing swaths of American inhabitants, particularly overlapping populations of the poor, immigrants (whether documented or not) and African Americans.

To be sure, the government based in Washington, DC is itself presiding over a steadily metastasizing police state, evident in its massive and indiscriminate surveillance program, its intensifying war on whistleblowers, mass deportations (and the government-mandated quotas that confine tens of thousands of those awaiting immigration hearings to harsh confinement, even when they've been convicted of no crime), its non-transparent and widespread program of drone-based assassinations and its illegal treatment of those in its custody, as well as its refusal to bring to account those responsible for committing torture and other crimes in its name. Reflecting how in the dark Americans are about these many transgressions, Senator Ron Wyden, among Congress' most persistent critics of government abuse of authority, has said, "It's almost as if there are two laws in America. And the American people would be extraordinarily surprised if they could see the difference between what they believe a law says and how it has actually been interpreted in secret."

Applicable federal law and constitutional jurisprudence - as in the case of due process rights for criminal suspects - point to a system with well-articulated protections for individuals against abuse by government authorities. But flying below the radar except for the occasional (and typically short-lived) media sensation, like the one now taking place in Ferguson, there continues a steady drumbeat of wrenching personal stories and impossible to ignore patterns and practices that, cumulatively, paint a depressing tableau of a nation whose inhabitants face unaccountable, arbitrary and brutal policing at all levels.

A year ago, The New Yorker published a long and devastating expose on the nationwide practice of civil forfeiture. Local authorities, in some places almost without constraint, are able, in effect, to steal money and other assets from American citizens on threat of incarceration, or destruction of their families, with impunity. Sarah Stillman, who wrote the New Yorker piece, told the story of Tenaha, Texas, a small town near the Louisiana border. Police there have made a nightmarish habit of pulling over passing motorists, claiming to smell pot or to "suspect" the transport of some other contraband, and to threaten arrest or - if motorists are driving with children - forcibly remove kids from the home, unless the driver signs a waiver forfeiting all money or other assets they might be carrying with them. No criminal charge is necessary to effectuate such a seizure. Just the threat of catastrophe for the driver. While Tenaha represented a particular egregious example of the practice (and a clearly racially-slanted one), the phenomenon exists nationwide. Only North Carolina, among the fifty states, requires a criminal charge before property can be seized (Senator Rand Paul recently proposed legislation to try to limit civil forfeitures).

As Stillman showed, a frequent consequence of this practice is that many people who have committed no crime are victims of literal highway robbery. A related phenomenon has been the spread of "internal checkpoints" particularly in the increasingly militarized Southwest, allowing border patrol and other law enforcement - sometimes a hundred miles from any border - to treat abusively drivers suspected of being "illegal aliens," often on the flimsiest of pretexts.

Likewise, prison abuses are at epidemic proportions the length and breadth of the land. It is well known that the United States imprisons more people than any other country in the world. Perhaps half that population is languishing for non-violent offenses and a growing number are spending their lives behind bars. Thousands of prisoners, in many cases for petty offenses, are subject to administrative detention - a euphemism for solitary confinement - each year. To take one egregious example, a 73-year old woman, Carol Lester, was held last year in administrative detention in a private prison for a month. Her "offense?" Lester says she complained about being denied medical care. So how was she punished, in addition to being thrown in solitary? She was denied access to her medication. A steady stream of reports of severe abuse of prisoners, denial of vital medications and death in custody dot the news landscape on a regular basis, though almost always below the proverbial fold.

The racial dimensions of our incarceration crisis are well known. African Americans represent half of all drug-related imprisonments in the United States, despite data showing that they are no more likely to use or deal drugs than whites. Racially-based sentencing disparities often result in African Americans spending two to three times longer in jail than whites for comparable offenses. Younger black men, in particular, face an insidious and pervasive regime of constant arrest and harassment on streets across America. New York City's Stop and Frisk program, which flourished for over a decade, resulted in over 700,000 arrests, overwhelmingly targeting minority males. Matt Taibbi, in his depressing but vital recent book, The Divide, told the story of Andrew Brown, who was arrested repeatedly for such crimes against humanity as "obstructing pedestrian traffic," despite being nailed for the offense at 1am on a deserted street corner. A report earlier this year documented a police practice in MIami Gardens, Florida, of more or less continuously arresting young black men. In one case, Earl Sampson was arrested over a hundred times in a five-year period, including on seventy occasions for trespassing a convenience store. Why was he arrested at that particular establishment so frequently? As it turns out, he worked there, without incident, except for his clockwork-like encounters with police.

The police riot in Ferguson last night received widespread attention in part because intrepid journalists, including Wesley Lowery of the Washington Post and HuffPo's Ryan Reilly, both of whom were arrested, tweeted about it as it unfolded. Each exemplified journalism at its best and most vital by shining a light on abuses by the powerful.

But away from the occasional glare of a media firestorm, we are witnessing an expanding zone of permissible abuse by government authorities. Especially for the less well-off and the improperly skin-toned among us, a looming menace hangs over Americans' interactions with law enforcement - that the consequence of an adversarial interaction with the "law" is increasingly likely to result in the denial of individuals' most fundamental rights.