THE MANY WARS ON CRIME
"You may not be interested in war, but war is interested in you" (Leon Trotsky)
The Constitution of the United States prohibits declaring war on domestic social problems. Yet, politicians do it all the time, as do political activists, religious leaders, and just about everyone else. Definitions of war clearly state it is a form of international relations where organized violence is used as an instrument of power by sovereign nation-states (Luttwak & Koehl 1991). So why has the term been used so loosely, for example, by well-intentioned Presidents such as Nixon, Reagan, and the two Bushes? The answer lies in definitional debates about the purpose of war. Karl von Clausewitz (1780-1831), best known for his book, On War, defined it as "an act of violence intended to compel opponents to fulfill our will." The real purpose of war, therefore, is to put an end to any opposition -- to shut down debate, stifle or chill any voices of dissent, rally society around an enemy, seize the high moral ground, and divert resources from one set of solutions to another, usually a military-based solution set. As a political tool for capturing and maintaining power, declaring war is simply too irresistible for power seekers to resist. America's founding fathers, like Thomas Jefferson, regarded it as the number one threat to democracy because war clouds the nation's populace with an anti-intellectual climate, and you can't remain both ignorant and free at the same time.
A federal war on crime is also constitutionally dubious. The Tenth Amendment states that any powers not given to the federal government are reserved for the states, and it must be remembered that the prohibition on alcohol was only made possible by an amendment to the constitution. Congress never asked the American people for additional constitutional powers to declare a war on drugs, for example, with the Controlled Substances Act of 1970. However, waging war on crime is an excellent campaign issue for politicians seeking federal office. Politicians love to make law and order an issue because it so easily plays on sentiments of patriotism and nationalism. Crime has always been on the agenda of state and local politicians, and since 1964, it has been on every president's domestic agenda (Oliver 2003). Modern presidents employ a war room strategy, surround themselves with advisors, and use techniques such as polling, reverse lobbying, media outreach, and interest group mobilization to influence public opinion that they are tough on crime. Through speeches, rhetoric, and a short-term solution set, declaring war on crime reassures the public that something is being done and someone who knows what they're doing is doing something. The war metaphor also provides the public with an enemy, and a target for pent-up American aggression. In the end, the public loses, because crime is a multi-faceted social problem that requires long-term solutions. Conservative political wars on crime are known as “Barry Goldwater’s Revenge", and all it takes is one political party to control the White House, Senate, and House. Such things happen mostly because less than half of all registered voters vote, and less than one-fourth of 18-24 year olds vote. It is an axiom in the Senate that a party needs 60 votes to govern. A determined minority can use a filibuster to stop legislation, and 60 votes are required for cloture, to end debate and force a vote.
The mythology of war is based on manipulation of images and stereotypes. The mentality of war fosters a climate of fear and alarm. Even without propaganda, wartime makes public perception run amok. For example, ask the average citizen how many homicides occur every year, and you'll get guesses as high as one million, when in our worst year, there have never been more than 25,000 homicides. Politicians who fueled the fire in the first place have no choice but to cave into unrealistic public demands for more "get tough" policies. The result is an endless cycle of punitive crime control measures that either don't work or don't work for long, and worse, cause harm for the average citizen. Here's a list of some of those harms:
absence of debate or discussion over the real, root causes of social problems
declining interest in philosophies of punishment other than retribution
diversion of resources from other social problems, such as education, heath care, and welfare
increasing deficits, national debt, and a sluggish economy
filling up prison space with low-level offenders guilty only of minor crimes
focus on street crime at the expense of crimes by the powerful
intolerance of opposition, dissent, and protest over current policies
nationalization or federalization of local and state problems
symbolic, subtle forms of racism justified by crime control policies
There have been numerous wars on crime in American history. Some have been instigated by private citizen groups -- moral entrepreneurs, they're called -- such as the wars on child abuse and abduction, the war against drunk drivers, and the war against gun ownership. To the private list, one could add the wars against rock music, rap music, television violence, and many others, but these home-grown movements (with the exception of gun control) are not discussed here. Instead, this lecture is about wars that have been declared by the U.S. government against its own citizens. Three of them are discussed -- the wars against organized crime, drugs, and terrorism.
WAR ON ORGANIZED CRIME
The FBI defines organized crime as a continuing criminal enterprise involving conspiracy, an organized structure, fed by fear and corruption, and motivated by greed. It typically requires corruption of government officials to succeed, and requires at least public tolerance, if not outright demand for illegal goods and services. From a legalistic perspective, it threatens the very foundations of legitimacy and makes it look like crime pays. The actual extent of organized crime is unknown, but ranges from national and transnational groups like the Mafia to thousands of small time gang outfits across America. Two main law enforcement strategies go to the heart of organized crime -- attempts to deal with money laundering and asset forfeiture.
Money laundering is the name for the process by which criminals hide the source of their revenues to avoid taxes and disguise any financial evidence of their wrongdoing. It typically involves maintaining a front or making it look like one is losing money in real estate, the stock market, at the racetrack, or in other commodities like gold and diamonds. It cannot be done properly without the assistance of bankers, lawyers, accountants, realtors, brokers, and other professionals. Some estimates put the amount of money laundered every year at $300 billion. American banks report any deposit over $10,000, and make other suspicions known to authorities. However, many foreign banks have secrecy laws, including Switzerland, Panama, Hong Kong, the UAE, and the Bahamas.
Asset forfeiture is where the federal and/or state government seizes all monies or other things of value that is either an instrumentality or fruit of crime. The first forfeiture laws were passed in 1970 and known as the Continuing Criminal Enterprise statute and the Organized Crime Control Act, the latter also containing the Racketeer Influenced and Corrupt Organization (RICO) statute. The power of RICO was made stronger in 1978 when the civil justice standard of just linking proceeds to unlawful activity replaced the criminal justice standard of tracing proceeds to unlawful activity. Today, more than 200 different kinds of forfeiture laws exist in America, and items are often seized on mere suspicion in all kinds of cases -- fraud, drugs, organized crime, and terrorism. Some 80% of people who have their property seized are never formally charged with a crime. Attempts to recover seized property is a legal nightmare for private citizens.
The war on organized crime began with anti-Italian sentiment during 1900 when Americans feared Italian immigrants were bringing with them secret societies known as the Mafia and the Camorra. Organized crime has always had an ethnic theme and another theme in rising from the ghetto. The Irish controlled most of America's ghettos in the 1890s, and were followed by the Jews, the Italians, the Blacks, and the Hispanics as the 20th century progressed. As it happened, five or so Italian and Jewish gangs (La Cosa Nostra) from the lower East side of Manhattan produced the first millionaire criminals in the 1920s, and by 1932, Lucky Luciano (Sicilian-born) and Meyer Lansky (a Polish-born Jew) successfully unified a number of gangs into a national syndicate (the Mob, or Mafia) that consisted of about 25 nationwide "families" or outfits.
The U.S. government responded slowly. J. Edgar Hoover, who ran the FBI from 1924 to 1972, held to a view that "There ain't no Mafia no matter how many corpses line the street." The Federal Bureau of Narcotics (forerunner to the ATF) tried to fight the war from 1930-1962 under the leadership of Harry Anslinger, but it's mandate was limited to drug smuggling. Two U.S. Senators who headed committees took the lead -- Senator Kefauver, who exposed the underground world of illegal gambling in 1951 -- and Senator McClellan, who exposed labor racketeering, and most fortunately, had the testimony of an underworld informant named Joe Valachi in 1963. By the late 1960s, America was forming task forces and special police units. By 1985, officials had put 24 out of 25 organized crime "families" out of business. John Gotti's sentence in 1992 and his son's arrest in 1999 signaled the end for the last of the Mafia icons.
The fact is that there are hundreds of men like John Gotti out there, and smarter ones too, ones that don't let themselves get tape recorded ordering a "whack" on somebody. New ethnic groups are into organized crime, and not all of them are organized along the lines of the Italian Mafia. The truth is that America officials have only had success prosecuting the easy prey, the most visible heads of organized crime, and they've been lucky, not experienced. The headhunting strategy is doomed to failure, as are all other unconventional "harassment" strategies. As long as the root causes of greed and corruption go unexplored and there is a strong market demand for illicit sex, drugs, gambling, pornography, loans, abortions, and special favors, there will be organized crime.
WAR ON DRUGS
UCR figures indicate some 900,000 adults (other sources put the number at 1.2 million) are arrested every year for drug law violations, with the largest proportions of those arrests being for simple possession (81%) of the drug marijuana (42%). OJJDP figures indicate about 200,000 juveniles are processed as delinquents every year for drug law violations (in about the same proportions), but juveniles are three times less likely than adults to go to prison for a first-time drug law violation. Self-report surveys indicate more than half of high school seniors have tried drugs and more than 90% use alcohol. The government spends $19 billion every year to enforce its drug laws, more than the Commerce, Interior, and State Departments put together. In spite of this, the Department of Health and Human Services reports 26.7 million Americans use an illicit drug every month. Every year from 1975-1995, at least 82 percent of high school seniors said that they found marijuana “fairly easy” or “very easy” to obtain.
Alcohol has a stronger connection to crime than drugs. America has 40 million problem drinkers and 10 million alcoholics. Alcohol is a factor in 50% of all homicides, suicides, and accidental deaths. By contrast, drugs are a factor in only 35% of all homicides, and the most frequent cause of death by drugs is not overdose, but death by poisoning from the contaminated, adulterated substances that are cut or mixed into street drug products. The most destructive drugs in society are alcohol and tobacco. Some 30% of high school seniors smoke regularly, and at least 125,000 cases of heart or lung disease are directly attributable to smoking.
Certainly drug use is higher than anyone would like, but the government may not have its priorities straight by sending so many first time offenders to prison. Drug criminals account for 75% of new federal prison admissions and 20% of new state prison admissions. The hallmark of these crimes is that they involve willing participants or consenting partners. Few victimless crimes, however, involve no injured party. The best arguments in favor of tough drug control is that where drugs are found, there is poverty, disease, wasted human potential, fragmented families, and support for an underground economy that is linked to the overthrow of democratic governments in the Western hemisphere. Over and above those arguments is the legalistic perspective that drug use threatens lawful authority and the social fabric.
America began its drug war in 1875 in San Francisco by cracking down on opium smoking parlors run by Chinese immigrants. This effort mostly failed, and in 1914, America tried regulating it with the Harrison Act, which only allowed medical professionals to possess opiate derivatives by paying a tax. The idea of taxation was extended to the $100 per ounce fee for marijuana in the 1937 Marijuana Tax Act, but revoked in 1951 with the Boggs Act. Penalties for violations of these acts kept increasing until the Narcotic Control Act of 1956 included the death penalty for sale of heroin to anyone under 18. The current schedules which classify drugs into five types comes from the Controlled Substances Act of 1970, which provides for penalties of life imprisonment for first-time possession of a Schedule I drug -- heroin, LSD, mescaline, peyote, psilocybin, marijuana, hashish, and other hallucinogens. Denial of federal benefits and student loans for drug offenders was part of the Anti-Drug Abuse Act of 1988. That Act, and a number of appropriations bills which followed, also allowed the government to declare some geographic areas as high intensity drug trafficking areas (HIDTAs) where criminal justice officials could conduct joint operations with military officials.
There are four (and only four) ways to fight a war on drugs -- source control, border control, dealer sweeps, and user stings. Source control involves intervention in the affairs of foreign nations to eradicate crops and apprehend drug lords. Agencies involved in this effort include the DOD, DEA, FBI, CIA, IRS, and INS. Border control attempts to interdict drugs as they enter the country, and involve agencies like Customs, INS, and the Coast Guard. Dealer sweeps primarily involve infiltration, investigation, and large-scale busts. User stings make the most use of informants, decoys, and controlled buy-bust operations.
America's drug war has failed to curb demand, and no social system can afford to arrest, prosecute, and punish such large numbers of people. Chances are we are a drug-taking society, enjoying our personal freedom to celebrate any way we choose. We may never become a drug-free society. It's no coincidence that many of our landmark Supreme Court cases regarding basic civil rights involve drug enforcement cases. It's time we turn our attention to other social problems. The $100 billion a year drug war diversion has to stop.
WAR ON TERRORISM
There are 33 major terrorist groups in the world besides al-Qa'ida that mean to do us serious harm, that is, they would stop at nothing to see our nation eradicated from the face of the planet. This list of State Department entities is growing at the rate of about five new groups a year. These aren't just minor groups, but well-funded, keenly sophisticated, and capable organizations who have already demonstrated their reach. Behind them are hundreds of other faceless organizations we don't even know about, or are in the making. Besides attracting foreign terrorism, America tends to breed its own homegrown terrorists -- a lunatic fringe, mind you, consisting of militia nuts, religious zealots, environmental extremists, and computer hackers -- but just as dangerous, nonetheless.
Terrorism can be defined as the illegitimate use of force against innocent bystanders to arouse fear and gain support for some belief system. It's illegitimate because they haven't declared war, and their attacks are always a surprise. Their targeting of innocent bystanders means they don't play by the same rules of engagement that military forces follow. Their use of fear hopes to swell insurrection in our ranks. Their belief systems typically are based on extremism (strongly held political beliefs) or fanaticism (strongly held religious beliefs) -- two underlying causes of terrorism.
Terrorists of every stripe have long ago crossed the line of moral repugnance in their actions. For this reason, standard criminal justice philosophies like deterrence are useless with terrorism. Retaliation only leads to counter-retaliation, and so forth. There is much talk these days about preemptive retaliation, but that's just war vocabulary using a military definition of overwhelming force. Military-based counterterrorism is the wrong way to fight terrorism. It diverts resources from intelligence-based, economic-based, and global-based sanctions. The first two require finding out what the terrorists are pissed off about and how they're organized, something than doesn't matter in the military scenario. Extradition and deportation schemes have always been the traditional global counterterrorism tools. Extradition is the surrender by one state to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender. Political offenses, however, are normally exempt from extradition, and death penalty concerns are an additional complication. Deportation procedures, likewise, rely upon cooperation. States consent to participate in global coalitions, police forces, and international courts on a case-by-case basis.
A basic problem is the questionable status of detainees in a war on
terrorism. Captured terrorists may be held by one nation as "unlawful
combatants" and deprived of POW (prisoner of war) status and Geneva convention
protections. Such protections require viewing the terrorists as legitimate
armies. Rule 117 of the ICC's Rules of Procedure and Evidence provides
for detention in a "custodial state" and allows for a hearing on pretrial
conditional release. By definition, terrorists do not meet the four
requirements necessary for combatant status (wear uniforms
or other distinctive insignia, carry arms openly, be under command of a person
responsible for group actions, and conduct their operations in accordance with
Fighting terrorism with intelligence is an interesting tactic. Even though the cold war is over, countries are still engaged in spying on one another. There's still a lot of secrets out there: military secrets, technology secrets, industrial secrets, computer secrets, and intellectual secrets. There's super-stealth space flying vehicles, advanced avionics, new biogenetic processes, computer security, and scientist-researchers who are always working on something new. These things need protected from allies and enemies alike, and somebody has to keep tabs on what they know (counterintelligence) make them believe that something they think they know isn't really so (deception and denial). There are 13 agencies that make up the IC (see this web site: http://www.intelligence.gov and 8 of them are military, the big ones being the DIA, the NSA, the NRO and the CIA is officially independent, neither military nor civilian, report only to Congress every year how much it spends, not how it spends.
Security at the expense of liberty is no security at all. It leads to oppression, minority disenfranchisement, corruption, bribery, voter fraud, organized crime, militarization, and a diminished quality of life for everyone. The greatest threat of a war on terrorism is the loss of civil liberties. Wartime powers often erode them to the point where they cannot be regained. Protection against intrusive surveillance measures are difficult to win back because technology is put into place. Loosening of the rules of evidence is difficult to overcome because the legal system operates slowly by precedent. Now is the time to carefully scrutinize anything in the name of anti-terrorism. America, has, in the past, been able to reconcile the requirements of security with the demands of liberty, and it is important to have faith, but it is also important to have a healthy dose of skepticism.
WAR ON GUNS
The issue of guns and crime is widely debated on the web, and nothing produces a quicker debate among criminal justice people than gun control. For a pro-gun control viewpoint, visit the Coalition to Stop Gun Violence. For an anti-gun control viewpoint, visit the National Rifle Association's site. Gun control advocates argue that the high rates of violence reflect the ease with which firearms are available. Pro-gun ownership groups argue that a heavily armed society is necessary to protect against a violent one. For at least three decades, the number of total households owing any type of gun has remained stable at about 50 percent. No precise count is available on the exact number of guns (estimates are as high as 200 million), but the number of households owning guns is greatest in rural areas and small towns, higher for whites than for blacks, highest in the South, lowest in the Northeast, and higher for high-income households than for low-income households.
In recent years, sharp increases in the homicide rates for 14-17 year-olds have been linked to the use of guns in juvenile criminal behavior. The rise in gun ownership among gang members in high-crime urban areas is well documented, and there is a rise in gun ownership in suburban areas, as well. For most violent crime, the weapon of choice is a handgun. Handguns only represent about one-third of all known guns, but they are most (80 percent) likely to be used in homicides. Those intent on homicide tend to aim more carefully, fire more bullets, and take more steps to ensure lethality than do criminals who use guns for other purposes, such as to threaten someone in a robbery, to threaten or inflict harm on family members, or to obtain revenge on a casual acquaintance for some perceived slight or chronic harassment. It is possible that merely having a gun encourages some people to commit robberies or to seek out altercations with others who would be considered too invulnerable to engage without the use of a gun. Also, it is possible that guns lead to what is called recreational violence, for example gratuitous murders at the conclusion of a successful robbery.
The difficulty, as any police officer or judge knows, is that establishing the motive for gun use in a particular instance is often a formidable, time-consuming, and judgmental task. When inmates are asked why they fired a gun during their criminal activities, 76 percent will claim they had no prior intent of doing so. Therefore, for gun-related crimes, most jurisdictions have passed what are called penalty enhancements--extra years added on to a sentence, which results in mandatory minimum sentences. In addition to being used in gun-related crimes, penalty enhancements are used with a variety of other offenses, such as drug-related crimes, hate-related crimes, and bias-related crimes. Penalty enhancements are an attempt to deter gun-related violence by assigning a presumed intent to specific criminal acts, thus short-circuiting the problem of determining actual intent in a court of law. Many criminal justice scholars are critical of this approach because of ethical issues: it abandons the traditional distinction between mens rea (criminal intent) and actus reus (criminal act), both of which should be proven in a court of law before obtaining a conviction.
The Supreme Court takes a hands-off approach to gun control strategies. The Second Amendment is subject to a variety of different interpretations. If you are interested in Second Amendment jurisprudence, then you need to be prepared to do some separate and further study.
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