There’s No Proportionality in American Law and Order

Since the August 9 shooting death of the unarmed 18-year-old Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, the country – and the world – has been captivated by the ensuing local outrage. Also during the past 11 days media, activists, and bystanders have suffered the brunt of an unprofessional, yet exceedingly-armed local police force, then a similar highway patrol, then the dang National Guard. For several days there was even a curfew, a condescending and authoritarian method of dealing with civil unrest if ever there was one. All this, armed cops yelling "I’ll fucking kill you" at protesters and filmers, news helicopters banned, repeated use of teargas (and lying about it) and rubber bullets, and some people are still baffled as to why these folks don’t just "go home."

During the protest, there has been some looting – which is unacceptable and rightfully criminal behavior – and some reports of violence, which is also not good. (Throwing a teargas canister back, however, doesn’t qualify. Neither is throwing a plastic water bottle at cops in body armor enough of an excuse to violate free press and assembly rights, which was reportedly the catalyst for police shutting things down on Tuesday night.)

The thing about protests during contentious times such as these in Ferguson is that they are frequently impeded. Yet, if the right to protest was explicitly for polite, relaxed situations, well, it wouldn’t be much of a right at all. Political summits such as the G-20 or NATO draw in "professional anarchist" protesters who are sometimes the folks in black blocs who are busy making a commotion in hopes of drawing out a confrontation with police. They shouldn’t suffer violent response, but more to the point, peaceful protesters who are in their vicinity especially shouldn’t.

For those of moderate politics, left or right, the implication seems to be that police have the right to send everybody home when a few people get rowdy. Teargas is a reasonable response to peaceful civil disobedience, because of the vague possibility that someone will break something or hurt someone. Being out after curfew is an acceptable reason to arrest an adult, and purposefully violating unjust, collective punishments such as these is somehow not a good use of your time.

The starkly militarized appearance of the police as they respond to upset people is just one of the myriad examples of how American law and order long ago lost any sense of proportionality. The most basic example of this is the no-knock raid. Hundreds of years of British common law that underlined the principle that a man’s home was his castle have been frayed nearly to a breaking point due to a combination of the "vital cause" of stamping out drugs, and a Supreme Court and local judges willing to give police officers the benefit of the doubt. If you know this in theory, try to consider what it means: paramilitary-like squads can bust into your home if a judge decides a jailhouse, anonymous, or paid informant swears you are growing, selling, or possessing a verboten plant. This is rare video of what is sadly not an uncommon occurrence in America (taken, awkwardly enough, in Missouri as well, though in Colombia and back in 2008).

On rare occasions, jurors agree that a homeowner didn’t know that the folks kicking in the door were police. However, in the past, more than a few of the reported 100-150 SWAT raids a day that occur in this country – the majority over narcotics – have ended in death or serious injury for police and the most innocent of victims.The terrifyingly unknown and abrupt quality of these raids undermines homeowners’ right to self-defense. Have they been jolted out of bed at 5 a.m. by robbers kicking in the door, or is it police? Is it therefore more dangerous to grab a weapon, or to hesitate? There’s no way to tell.

When it comes to the sentencing phase of American justice, we have also lost sight of a reasonable response to crime. Both real crime that hurts people and the malum prohibitum violation of consensual actions is punished unduly harshly in America. Theft should be punished by restitution to the victim, not a punishment for violating the state’s laws. Murder should be punished with long imprisonment, with the caveat that the justice system is deeply flawed. There are certainly innocent people in prison who did not rape or murder. But laws against normal behavior – against consensual buying, selling, against walking, stopping, running, and running red lights, whatever, have all increased in the past few decades. We now live in a soft police state; where SWAT teams are a reasonable way to enforce a regulatory issue like improper guitar wood, or a dubious liquor license; where 65 million Americans have some kind of police record, but that is still enough to ruin your life, or at least your employment prospects; where politicians can start wars, or cozy up to the prison-industrial complex, but decades in prison is the punishment for theft.

According to the American Civil Liberties Union (ACLU), the average prison sentence has increased by 36 percent in the past 24 years. It’s not more laws against non-crimes like drug use or selling, it is greater punishment for all 2.2 million people currently behind bars. And we are used to it. It was accepted. Politicians are just now getting around to admitting that overcriminalization was a horrifying thing done to millions of people. Thanks to the attention on Ferguson, we may get enough momentum to remedy or get rid of dreadful incentives for police overreaction, such as the Pentagon’s 1033 program which passes out war gear to police departments. But real reform might require a longer attention span than most Americans have for problems that are not their own. After all, it’s always somebody else who provokes the vicious boot of law and order, and they must have done something to deserve it.

Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.

Read more by Lucy Steigerwald

Author: Lucy Steigerwald

Lucy Steigerwald is a contributing editor for Antiwar.com and an editor for Young Voices. She has also written for VICE, Playboy.com, the Washington Post.com, The American Conservative, and other outlets. Her blog is www.thestagblog.com. Follow her on twitter @lucystag.