by Derek Gilna

"Security checkpoints with identification scanners guard the train station and roads in and out of town. Facial scanners track comings and goings at hotels, shopping malls and banks. Police use hand-held devices to search smartphones for encrypted chat apps, politically charged videos and other suspect content. To fill up with gas, drivers must first swipe their ID cards and stare into a camera,” according to a recent report by The Wall Street Journal.

Fiction? No, it’s all too real, but fortunately, not in the United States, at least not yet. What was described was the stark reality faced by residents of Urumqi, China, where “citizens and visitors alike must run a daily gauntlet of police checkpoints, surveillance cameras and machines scanning their ID cards, faces, eyeballs and sometimes entire bodies,” The Wall Street Journal reports.

Many criminal justice experts think that America is steadily reaching the point when civil liberties and personal freedoms guaranteed by the U.S. Constitution and the Bill of Rights have given way to the beginnings of a police state. Although one may argue that a comparison with the police states of totalitarian regimes like China is extreme, there are many worrisome trends in that direction that should not be overlooked.

 No one can ignore the steadily increasing power of the federal government and the prison industrial complex that it has enabled and supported with massive financial outlays. Also not to be overlooked are the sophisticated surveillance capabilities of virtually unaccountable internet technology mega-companies that have the capability to put the freedoms many of us take for granted in serious jeopardy with just a few keystrokes. These are the same companies, along with others eager to expand their business contacts in the world’s largest economy, that have provided the software and hardware used by police states like China to control their citizenry.

These troubling developments have taken place with little coverage in the mainstream news media and gone largely unnoticed except by policy analysts and the ever-increasing number of individuals who have been swept up in the criminal justice system.

 Law enforcement agencies today have at their disposal an array of advanced weaponry and invasive technology that were the stuff of science fiction only 50 years ago. Many municipal, county, state, and federal agencies have formed SWAT teams, received surplus military equipment (such as armored assault vehicles), reorganized their agencies along quasi-military lines, and adjusted their policing tactics accordingly. Not surprisingly, as the number of heavily-armed police personnel has increased, so has the number of police shootings of law-abiding unarmed or legally-armed private citizens as well as the incidence of the use of deadly force against unarmed offenders, including juveniles.

Although the U.S. population constitutes about 5% of the world’s population, our prison population accounts for 20% of the world’s prisoners and tens of thousands more are on some form of post-release supervision. Many factors have contributed to our country’s mass incarceration epidemic. Slowly and steadily, state and federal laws, most originally targeting illegal drug activity, have grown more restrictive, and prisoner counts have soared. How did this process begin?

The War on Drugs

The late 1960s in the United States was a time of unrest in the inner cities. An unpopular war in Vietnam and reaction to the assassination of the Rev. Dr. Martin Luther King, Jr. were among many incidents that sparked violence in the inner city. Hundreds of thousands of young American serviceman came home from Vietnam, where they had been introduced to marijuana and other drugs, to an American society in throes of upheaval. At time, the U.S. crime rate had been low and the prisons relatively empty, but neither condition would continue for long.

As the number of drug-related crimes increased, so did the number of violent crimes. Congress reacted by launching its War on Drugs, increasing the severity of punishment for drug-related offenses, introducing the concept of mandatory minimum sentencing, and establishing the U.S. Sentencing Commission. This organization, utilizing virtually unchecked rule-making authority granted to it by Congress, also instituted sentencing “enhancement,” which greatly lengthened sentences, sometimes resulting in life in prison for non-violent offenders.

As sentences got longer and prisoner counts skyrocketed, more money found its way into prison construction and prison staff payrolls. The explosive growth in the prison population and associated funding led to the establishment of an entire industry created to service the ever-increasing incarcerated population. Both major political parties participated in this steady buildup of correctional and law enforcement personnel and facilities. In 2016, the number of people employed in the prison-industrial complex for the first time exceeded those who work in agriculture, topping 2.5 million.

As the prison-industrial complex began to swell, the American economy was losing its worldwide dominance. According to Forbes, after World War II, well over 50% of the world’s gross national product emanated from the United States. By 1960, that figure had declined to below 40%, and in 2014, it was 20%. China is expected to overtake the U.S. economy before 2040.

Incredibly, while the primacy of the American economy has declined relative to the rest of the world, its financial outlay in overseas military deployments has increased. After the terrorist attacks of September 11, 2001, Congress authorized billions of dollars (many estimate the amount to be more than a trillion) to consolidate domestic intelligence and immigration enforcement in a new federal agency, the Department of Homeland Security, (“DHS”), spawning yet another federal law enforcement bureaucracy. Since 2001, the FBI, National Security Agency, and other federal law enforcement agencies have all increased the number of employees as part of the War on Terror.

While the number of people incarcerated has rapidly increased, another statistic has also increased dramatically over the years—the number of Americans shot and killed by police. In 2015, the latest year for which statistics are available, American law enforcement fatally shot an average of 2.6 people per day. By comparison, the number of people fatally shot by British police in the last three years was two. Quite disturbingly, according to a study by the American Medical Association, “police-inflicted injuries send more than 50,000 Americans to hospital emergency rooms every year.” How did this happen, or more importantly, how was this allowed to happen?

According to Norm Stamper, former Seattle police chief, “Policing is broken…. It has evolved as a paramilitary, bureaucratic, organizational arrangement that distances police officers from the communities they’ve been sworn to protect and serve. When we have shooting after shooting after shooting that most people would define as at least questionable, it’s time to look, not just at a few bad apples, but the barrel. And I’m convinced that it is the barrel that is rotted.”

Many policing experts believe that current police training, policies, and culture encourage aggressive tactics when disengagement might be better for all concerned, especially when members of the public are not in danger.

Officers are also continuously being taught that their lives are in constant threat from the public, when in actuality, according to Newsweek, “it’s safer to be a cop than it is to simply live in many U.S. cities.... It’s safer to be a cop than it is to live in Baltimore. It’s safer to be a cop than it is to be a fisher, logger, pilot, roofer, miner, trucker or taxi driver. It’s safer to be a cop today than it’s been in years, decades, or even a century.” In fact, Newsweek reports that “no matter how you slice it, police work has been getting a lot safer. Fatalities and murders of police have been falling for decades—per resident, per office and even in absolute terms.”

This perception of danger to officer safety is often used to justify the militarization of the police. According to the ACLU, “American policing has become unnecessarily and dangerously militarized, in large part through federal programs that have armed state and local law enforcement agencies with the weapons and tactics of war, with almost no public discussion or oversight.” The ACLU adds, “Across the country, heavily armed Special Weapons and Tactics (“SWAT”) teams are forcing their way into people’s homes in the middle of the night, often deploying explosive devices such as flashbang grenades to temporarily blind and deafen residents, simply to serve a search warrant on the suspicion that someone may be in possession of a small amount of drugs.”

“Using these federal funds, state and local law enforcement agencies have amassed military arsenals purportedly to wage the failed War on Drugs,” the ACLU observes. It also notes: “Aggressive enforcement of the War on Drugs has lost its public mandate, as 67 percent of Americans think the government should focus more on treatment than on policing and prosecuting drug users,” adding, “This waning public support is warranted, as evidence continues to document how the War on Drugs has destroyed millions of lives, unfairly impacted communities of color, made drugs cheaper and more potent, caused countless deaths of innocent people caught up in drug war-related armed conflict, and failed to eliminate drug dependence and addiction.”

What has the public gained from the failed War on Drugs? Certainly not the eradication of drug usage, which has moved from the inner city to rural and suburban areas with the rise of opiod and methamphetamine addiction and deaths. Individuals are unlikely to end their drug use based upon the armament of their local police department, but this has not deterred the continued militarization of American police.

As the ACLU notes, “Law enforcement agencies have become equipped to carry out these SWAT missions in part by federal programs such as the Department of Defense’s 1033 Program, the Department of Homeland Security’s grants to local law enforcement agencies, and the Department of Justice’s Edward Byrne Memorial Justice Assistance Grant (“JAG”) Program.” According to an ACLU report, “the militarization of American policing is evident in the training that police officers receive, which encourages them to adopt a ‘warrior’ mentality and think of the people they are supposed to serve as enemies, as well as in the equipment they use, such as battering rams, flashbang grenades, and APCs [armored personnel carriers].”

The excessive use of SWAT tactics has eroded public trust in the police. “The routine use of heavily armed SWAT teams to search people’s homes for drugs, therefore, means that law enforcement agencies across the country are using this hyper-aggressive form of domestic policing to fight a war that has waning public support and has harmed, much more than helped, communities,” the ACLU states.

Former Attorney General Eric Holder attempted to curb the militarization of police departments by suspending the delivery of surplus military equipment. But the damage has already been done because many police departments already have an impressive arsenal at their disposal. Holder’s initiative has been reversed by President Trump and his attorney general, Jeff Sessions.

It is difficult to gauge the extent to which America’s police forces are militarized. According to the ACLU, not one law enforcement agency provided records containing all the information it believes are needed to perform a thorough examination of police militarization. Some police departments provided records that were nearly totally lacking in important information. In addition, there aren’t any agencies that monitor and provide oversight over the militarization of policing.

The proliferation of SWAT teams has somehow escaped the notice of the mainstream media and the public. The total number of SWAT teams nationwide in 1995 was 53. In 2013, the FBI alone had 56. The federal agencies that you would expect to have SWAT teams, such as the FBI, Secret Service, and the Treasury Department naturally all have them, but other agencies that you would not expect also have their own SWAT teams. For instance, even the U.S. Fish and Wildlife Service, Consumer Product Safety Commission, National Aeronautics and Space Administration, Department of Education, Department of Health and Human Services, U.S. National Park Service, and the Food and Drug Administration all have their own SWAT teams.

If you have any doubts about the degree of militarization of local police departments, consider the example of Arizona. That state acquired the following military-grade equipment via the Defense Department’s 1033 Program at no cost: 32 bomb units, 64 armored vehicles, 120 utility trucks, 830 surveillance and reconnaissance units,
42 forced entry tools (such as battering rams), 17 helicopters, 13,409 personal protective equipment and/or uniforms, 1,034 guns (712 of which are rifles), 701 night-vision units, and 21,211 other types of military equipment.

As American police agencies have increasingly turned to weapons of war to patrol their streets, it should not be surprising that the mindset of many police officers has also changed. As journalist Daniel Bier stated, “If you tell cops over and over that they’re in a war, they’re under siege, they’re under attack, and that citizens are the enemy—instead of the people they’re supposed to protect—you’re going to create an atmosphere of fear, tension, and hostility that can only end badly, as it has for many people.” Not surprisingly, this attitude has resulted in an avalanche of complaints about excessive force by police.

Arizona is second to Oklahoma in the number of fatal police shootings per one million residents based upon 2015 data and double that of most other states: Oklahoma 4.4, Arizona 3.6, Idaho 2.4, New Mexico 2.4, Colorado 2.2, Louisiana 2.2, Delaware 2.1, and Nebraska 2.1.

There appears to be a high likelihood that SWAT teams are underreporting the incidence of police shootings and fatalities resulting from those shootings. It defies logic to think that police departments and the federal government, with vast resources in personnel, computer technology, and millions of dollars in financing, still have trouble properly tabulating and accurately reporting these statistics. It certainly appears that governmental agencies are intentionally failing to timely disclose statistics that might damage their reputation. It certainly does not help with transparency that the DOJ and the FBI do not require police agencies to report officer-involved shooting data.

It is not just SWAT teams whose excesses have resulted in needless violence against civilians. According to journalist Celisa Calacal, “It is often the case that police shootings, incidents where law enforcement officers pull the trigger on civilians, are left out of the conversation on gun violence. But a police officer shooting a civilian counts as gun violence. Every time an officer uses a gun against an innocent or an unarmed person contributes to the culture of gun violence in this country.” According to The Washington Post, “1 in 13 people killed by guns are killed by police.”

The right to keep and bear arms is enshrined in the Second Amendment of the Bill of Rights, right after the First Amendment protection of free speech. The American colonists were well aware of the danger of disarming in the face of a repressive colonial overlord. Fast forward 250 years, however, and we see that gun rights are under assault from many directions.

As noted by The Washington Post, “While it still technically remains legal to own a firearm in America, possessing one can now get you pulled over, searched, arrested, subjected to all manner of surveillance, treated as a suspect without ever having committed a crime, shot at, and killed. This same rule does not apply to government agents, however, who are armed to the hilt and rarely given more than a slap on the wrists for using their weapons to shoot and kill American citizens.”

The disturbing case of Philando Castile is a prime example of how possession of a lawful firearm can get you killed by the police, while handing a free pass to police officers who do the killing. A Minnesota jury acquitted the police officer who shot and killed Castile during a routine traffic stop. Castile disclosed to the officer that he had a gun in his possession, for which he had a lawful conceal-and-carry permit. He did not make any sudden movements. Nevertheless, Castile was shot four times as he reached for his license and registration. The episode was caught on video by Castile’s distraught companion, yet even video evidence of the seemingly unwarranted shooting was not enough to convict the officer.

In 2017, the U.S. Court of Appeals for the Eleventh Circuit let Florida police officers off the hook for banging on the wrong door at 1:30 am, failing to identify themselves as police, and fatally shooting the homeowner who answered the door with his legally-licensed gun. According to The Washington Post, “Although 26-year-old Andrew Scott had committed no crime and never fired a single bullet or lifted his firearm against police, he was gunned down by police who were investigating a speeding incident by engaging in a middle-of-the-night ‘knock and talk’ in Scott’s apartment complex.”

Not only were the police at the wrong residence, but they were there in the middle of the night investigating a relatively trivial matter—a traffic offense. An innocent man was killed because of the deadly combination of police incompetence and brutality, and the perpetrators are not held accountable.

According to the conservative opinion magazine, National Review, “Shooting an innocent man in his own home because he grabs a gun when an unidentified person pounds on his door or barges through it isn’t just an ‘unreasonable search or seizure.’ It’s a direct violation of his clearly established right to keep and bear arms.”

Thanks to the efforts of literally hundreds of criminal justice reform advocates, organizations, and publications including Prison Legal News, the public has increasingly become more aware of the growing police state in America along with the excesses of the prison-industrial complex.

War on Terror

As the War on Drugs was beginning to wind down, the attack on the World Trade Center in 2001 triggered an even more ubiquitous and invasive domestic war—the War on Terror—with its explosive expansion of the federal security apparatus, further stated justification for huge security-related expenditures, and expansion of any agency with even a tangential connection to “national security.” Therein lies perhaps the greatest threat of all to freedoms in America—the persistent and invasive surveillance by government of its citizens without warrants, judicial supervision, or other meaningful checks.

Persuaded by constant media reports and government pronouncements about the threat of terrorist attacks on the American homeland, Americans have been willing to voluntarily give up personal freedoms and grant the government more policing powers in return for promises of safety. Nowhere is this bargain more evident than the nation’s airports, which have gradually transformed into armed camps. But as many private security experts warn, most of it is just theater. Many of the so-called security measures implemented do very little to actually make the flying public any safer.

The Fourth Amendment protects against unreasonable searches and seizures, but the protections are relaxed at the borders. Customs and border protection agents can take advantage of an exception to this constitutional protection and search our electronic devices at airports without first establishing reasonable suspicion or securing a warrant. It is a problem that is only getting worse as agents continue to search more and more of our electronic devices without a warrant or reasonable suspicion in the name of security. And most Americans acquiesce as the government insists on increasing its police powers—for our own safety.

And where does all that information seized at the airports and elsewhere go? It goes into enormous databases maintained by various agencies within the federal government whose budgets and policies are only superficially monitored by Congress. In 2017, Sidd Bikkannavar, a NASA engineer at the Jet Propulsion Laboratory, was forced by a Customs and Border Patrol (“CBP”) agent to disclose his passcode to his NASA-issued smartphone. The phone was returned after the agent disclosed that it had been scanned by algorithms and found to contain no illegal material.

Bikkannavar’s experience is not an isolated incident. CBP agents are gaining access to massive troves of personal information related to law-abiding Americans who have neither committed nor been suspected of a crime. Their only offense is traveling abroad and returning to the U.S. This exception to the Fourth Amendment is an affront to everyone’s privacy and must be remedied.

There is no question that since the 1977 U.S. Supreme Court case of United States v. Ramsey, the border searches without a warrant or probable cause are deemed reasonable for Fourth Amendment purposes. The Court stated, “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border should, by now, require no extended demonstration.”

In a society where more than three-quarters of Americans own smartphones, which hold our most personal information as well as confidential business data, CBP has the ability to access information on travelers’ phones that reveal intimate details wholly unrelated to alleged terror threats. In the case of Bikkannayar, an American citizen and holder of Border Protection Global Entry program status for pre-approved, low-risk travelers, his preferred status did not prevent him from being forced to give up his smartphone. This suggests that no one is immune from a full search of their smartphone at the border.

While testifying before Congress, former Department of Homeland Security (“DHS”) Secretary John Kelly could not cite a single instance in which a warrantless and suspicionless electronic device search at the border led to a terrorism arrest or conviction. No one questions the wisdom of examining the devices of individuals who are on a watch list or have been served with a warrant, but warrantless searches can lead to invasive and intimidating violations of citizens’ and permanent residents’ constitutional rights.

 It is not only at airports where Americans’ electronic privacy is under assault. The National Security Agency has admitted that it intercepts every telephone call and email for every person, including allegedly encrypted communications, which it stores even if it cannot currently read them, in case it develops the technology to read them in the future. Most Americans quietly accept this massive collection and storage of their private communications in the name of national security.

In yet another post 9-11 development, the NYPD has admitted that it has surveilled law-abiding Muslims while they worshipped in their mosques. Since 2002, the NYPD has profiled and surveilled Muslims not only in New York but elsewhere.

According to the ACLU, “The NYPD’s Intelligence Division has singled out Muslim religious and community leaders, mosques, student associations, organizations, businesses, and individuals for pervasive surveillance…. The NYPD’s suspicionless surveillance program has swept up Muslim communities throughout New York City, as well as every mosque within 100 miles of New York, and extended to Pennsylvania, Connecticut, New Jersey, and more.”

Another issue causing concern is the trend of prosecutors at every level of government to aggressively pursue civil asset forfeitures—seizing money and property even when no crime has been committed. According to The Washington Post, “Agencies often forfeit property without ever convicting, let alone charging, anybody with a crime. Forfeiture proceeds often fund law enforcement officials’ salaries and budgets, giving them a direct financial incentive to abuse this power. In July, United States Attorney General Jeff Sessions rolled back modest reforms to federal involvement in civil forfeiture with the explicit goal of increasing the cash flow to law enforcement agencies from people who are never convicted of a crime.”

There are many alarming trends concerning the erosion of the freedoms guaranteed by the Constitution and the seemingly endless expansion of the police state in America, so there is an urgent need for criminal justice advocates to continue to expose the inconsistencies and abuses of government agencies and police departments. Similarly, there is a dire need to educate the public that the War on Drugs and the War on Terror simply serve as pretexts for the government to acquire more pervasive and invasive power over the daily lives of all Americans. Thomas Jefferson understood at the founding of the country that “eternal vigilance is the price of liberty.” It’s as true today as it was then. 

Sources: www.aclu.org, www.counterpunch.org, www.criminaljusticedegreehub.com, www.forbes.com, www.globalresearch.ca, https://techcrunch.com, www.nationalreview.com, www.newsweek.com, www.prisonlegalnews.org, www.salon.com, www.wakingtimes.com, www.washingtonpost.com, www.wsj.com

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