David R. Henderson  

Is the United States a Police State?

Class Dismissed and Sig... Jackals in Retirement...

In an article today, Lew Rockwell answers yes. See what he has to say.

I'm organizing a session on this at the Association for Private Enterprise Education (APEE) meetings in Las Vegas in April and I've asked people who I expect are on each side of the issue to present. So far, no takers.

A police state, as I understand it, is not necessarily the same thing as a totalitarian state. A totalitarian state is necessarily a police state, but not vice versa. I think of a police state as one in which the government can find a charge to put you in prison even though you did nothing wrong. That's part of my definition. If I need to be one of the people who presents in Vegas, I'll come up with a tighter one.

And in case you reject the idea because Lew Rockwell said it, take a look at a front page story in today's Wall Street Journal titled, "As Federal Crime List Grows, Threshold of Guilt Declines." It's by Gary Fields and John R. Emshwiller.

One excerpt:

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

How about this:
In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.

A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms.

Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013.

And this:
An incident from 2002 illustrates the sometimes messy process of drafting legislation. That year, Congress passed the Sarbanes-Oxley Act, which set new punishments for white-collar crime following the scandals at Enron, WorldCom and other companies. Several legal experts were about to testify on key provisions of Sarbanes-Oxley before a Senate subcommittee when the chairman called a break in the meeting. The reason: The senators needed to vote on the very provisions the panelists were there to discuss.

The hearing resumed two hours later, after the provisions were approved 97-0. The witnesses went on to testify about the dangers of weakening criminal-intent standards, as Sarbanes-Oxley did.

Or how about the behavior of some New York city policemen last weekend? Take a look at this Lawrence O'Donnell segment on MSNBC.

Comments and Sharing

CATEGORIES: Regulation

COMMENTS (25 to date)
yoshi writes:

You do yourself no favors by quoting Lew Rockwell.

David R. Henderson writes:

Stick to the issue. Do you have anything valuable to say about the issue?

joshua writes:

If the best examples for a US police state are hypothetical fretting about a five year old law, exaggerated charges against someone with an extensive criminal record and who was arguably committing a *small* offense, and some confusing story about passing a bill, then I'd say we're pretty good. But I could have sworn there were lots of examples of actual charges being brought against *completely* innocent citizens.

John Hall writes:

Try to see if Radley Balko will do it. I'm sure he'd be good.

nazgulnarsil writes:

"Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked."

The implication is that nothing stops them from putting such laws on the books except tradition. A system that relies on lawmakers having a certain philosophical outlook is laughably fragile. The system should be robust against individuals being maliciously stupid.

polypolitical writes:

As a police officer for over ten years, I can tell you that if the definition of a police state is that they can "find a charge to put you in prison even though you have done nothing wrong" then we *might* be in a police state, but it is an odd one. IMHO the Federal Law Enforcement agencies are worse for this than most states. While most local and state LEOs can find a charge to file against you, it is unlikely that you will either a) end up in prison or b) ever be convicted. On the local level it is actually relatively HARD to charge someone and successfully prosecute them even when they really deserve it. The example given of the individual with the "extensive" criminal record is likely a case of someone who in reality was carrying or in possession of a firearm but was smart enough not to keep it in his home, similar to drug dealers being charged during a search warrant when only trace amounts of the drug are in the home...they keep it elsewhere or hide it too well to be found.

I agree with the premise that we live in a country with tremendous government over-reach, but I think this is because we pass too many laws and lawyers have rendered "normal" (read: "common sense")law enforcement almost impossible. I think the examples given here are weak.

joeftansey writes:

Since the state can make basically any law it wants, it is trivial for them to jail you if they *want* to.

The real question is whether they have an incentive to jail otherwise innocent people. Weigh the benefits of imprisoning their political opponents vs the costs to their public image (i.e. perceived fairness/justice).

Most of the time, the state seems to not gain any net benefit from arbitrarily screwing people over, even though it could.

Hume writes:

"the government can find a charge to put you in prison even though you did nothing wrong."

As a legal positivist, I believe this makes all legal systems at least potentially a police state, and as a libertarian, this would make all non-libertarian (i.e., all) legal systems police states.

One feature I believe important is the ability of officers to effect the behavior of law-subjects whether or not their behavior conforms to legal norms. This is basically a type of "sub-legal" culture. So if officers' extralegal demands/threats are credible ("credible" does not equate to legitimate) in the sense that the law-subject is likely to be harmed without recourse, than we are getting close to a police state. This may simply be the disintegration of the "rule of law" but I dont think they are equivalent.

For example, a police officer may arrest you for "giving him lip" despite the fact that you cannot be charged with a crime. You are taken to a police station, booked, and forced to spend the night in a holding cell. This is "harm." Because officers are known to do this (usually in conjunction with some nonsense charge, such as "disorderly conduct"), law-subjects are less likely to behave in certain ways and the officers' demands and presence makes a difference in the law-subject's practical reasoning despite the absence of legal norms or non-conforming behavior. In this situation, we are starting to get close to a police state.

Vangel writes:

Let us keep this very simple.

In the US you can be fined or imprisoned if your toilet tank holds too much water.

So yes, I would say that any reasonable individual would have to conclude that the US is a police state.

David R. Henderson writes:

Thanks for those thoughts. Honest, I want to be talked OUT of believing that the U.S. is a police state.

PrometheeFeu writes:

How about the abuse of material witness statutes used to throw terrorism "suspects" in jail?

David Boaz writes:

Gary Fields wrote at least one very long earlier piece on this topic.

If a police state is a state where you live in fear of a knock at the door that could take your father away forever, is the United States a police state?

And if so, is it more of a police state than Mississippi before 1964, or than it was for gay people before the 1970s? (My reflections on the beginnings of the gay resistance here: http://www.britannica.com/blogs/2011/05/were-not-going/)

Scott from Ohio writes:

How did Congress pass a law with only six members voting on it?

James C writes:

when law enforcement can break into your home and open fire on innocent people. and the people are up in outrage, but know full well their protest is being ignored and these incidents WILL be repeated, then i have to say, how can we conclude that the US is NOT a police state? this doesnt even take into account the trigger happy officers who love to pull out the tasers, and the people whose hearts stopped beating as a result.

i think the most egregious example of all was a homeless man who shot in the head while crossing the street in broad daylight. i believe this took place in Washington, and the officer claimed it was because he thought the man had a knife. in the youtube video that i watched, the man never acted in a threatening manner, and was just minding his business. and there was a lady who was screaming hysterically after the fact, demanding to know why the cop fired.

when these men and women can take your life whenever they feel "threatened", can we honestly claim we live in a free society?

Noah Yetter writes:

3 words: Civil Asset Forfeiture.

...ok ok, I can't resist 2 more: Extraordinary Rendition.

steve writes:

I think your definition of a police state relies heavily upon "even though you did nothing wrong."

That definition in my opinion is pretty weak resulting in the answer that yes we are in a police state. Nearly, anyone can find a number of laws that they think criminalize things that are not wrong. Libertarians can undoubtedly find many of these (probably why a lot of libertarians say we are in a police state.)

A strong definition is "no matter what you do". I think the answer here is no we are not in a police state. But, this standard is very high. It basically just assumes a complete abandonment of the rule of law. While Hitler and the party elite were clearly above the law, I don't think the rest of Germany really abondoned it. It just had unjust laws against certain religions, free speech, etc. The average worker bee non-political Joe German could live within the rule of law without fearing arbitrary arrest by the police.

Something in between these extremes would be difficult to express. Maybe "are their particular groups of individuals (race, class, proffession) who can be jailed no matter what they do." By this definition I think maybe financial proffessionals but I am not sure. That may be more of a regulatory state then a police state.

Per writes:

Steven Horwitz seems to think so, Yes, It Is a Police State

KristianB21 writes:

No, this is a corporate state! Politicians backed by corporate makes this a police state but not for long. Occupy Wall Street's protest has been censor by main stream media despite it's tremendous support spreading across the US in 16 states thus far.


drobviousso writes:

A police state is like facism and porn, you'll know it when you see it, and it's all in the eye of the beholder.

I think you need a collection of heuristics, figure out where the US is on those, and decide if that means a police state.

Here are some heuristics to start with:

What is the minimum threshold a citizen must pass before Johnny Law* can justifiably* cause you hardship*?

What is the minimum threshold for being monitored or searched?

Are Johnny Law held to the same, higher, or lower standards, legally and in practice, as the pleabs?

Are hardships imposes on citizens to protect other citizens or Johnny Law?

*I'm using these terms because I don't want to restrict it to a LEO, legally, etc. If a private contractor or DA can illegally do this, but it's not corrected, then there's no difference. Hardships aren't just arrests or convictions, but they include intimidation, public statements like webpages with mugshots of people never charged, etc

Hasdrubal writes:
The example given of the individual with the "extensive" criminal record is likely a case of someone who in reality was carrying or in possession of a firearm but was smart enough not to keep it in his home, similar to drug dealers being charged during a search warrant when only trace amounts of the drug are in the home...they keep it elsewhere or hide it too well to be found.

Isn't that exactly the problem the Felix and Emshwiller quotes are trying to point out? That right there is the erosion of the burden of proof: You CAN'T meet the standard of proof to convict someone of a crime, but the law provides some other crime that is much easier to prove that can be substituted to provide the same or similar punishment.

In that case, why have the burden of proof in the first place?

Sure, you can point to examples where these laws are used to put bad people away. But by passing laws like this, you enable the government to imprison non-bad people as well. Look at how the laws against lying to the FBI are getting applied. Or what Caylee's law is intended to do: Ensure a conviction regardless of whether or not the person actually committed the crime they're accused of.

david nh writes:

I am thinking that if you feel the need to ask, it probably already is.

One test might be whether there is widespread criminalization or prohibition of trivial or non-harmful behaviour. Another might be whether punishments are massively out of proportion with the "offence".

Another suggestion would be to educate yourself about Conrad Black's treatment by the US justice system. I know that you are Canadian so perhaps you are already familiar with it. I was particularly astounded by Posner's role.

PrometheeFeu writes:

I think the US can be considered a police state based upon 3 tests:

1) You can be harmed without having broken any laws. Civil asset forfeiture means your property is taken and you have to fight to get it back. Abuse of material witness statutes means you can be imprisoned without any charges. "Contempt of cop" can land you in jail overnight. A cop claiming they smelled drugs authorizes them in many places to enter and search your property. Courts have even started to rule that you do not have a right to resist an unlawful arrest or search. In most of these cases, you have little to no remedy.

2) Very vague laws can be used against anyone. Doing just about anything can land you a "disturbing the peace" charge. "Community standard" obscenity laws can be used against anyone making even vaguely unpopular speech if the speech is on the Internet and therefore accessible from any "community".

3) There is an ever-growing body of laws making it impossible for any one person to know what laws are on the books. Given that many of these laws prohibit behavior most people would find perfectly acceptable, we all break many laws all the time. As a result, a dedicated DA will always find something to charge you with. We are effectively in the situation of the Plebians before the First Sessessio.

We do live in a police state. Things are overall not that bad, but they are getting worst. Ultimately, people only support and respect social institutions while they are doing well. Slowly, the economic crisis is undermining support for existing social institutions and making a violent uprising more likely as more people start thinking: "Maybe this system is not working out for me." Hopefully, we'll get rid of the police state to alleviate pressure.

PrometheeFeu writes:


Your argument is similar to the old story of Al Capon being taken down for tax evasion. That's not reassuring in the least. What it tells me is that if the cops want to throw someone in jail, they will be able to no matter what the evidence says. In fact it's terrifying and extremely angering.

Allen foster writes:

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