21 March 2012

Against Patiotism: No Love for an Abusive Nation

Stephen Kershnar
Patriotism and the Criminal Justice System
Dunkirk-Fredonia Observer
March 19, 2012

With Memorial Day, July 4th, and Major League Baseball approaching, we’ll soon see an outpouring of patriotism. The problem with the outpouring is that it doesn’t make a lot of sense when directed at a country that damages millions of people for no good reason.

Here’s the argument. If a country puts large numbers of its people under the control of the criminal-justice system and does so via demeaning dragnet searches, then it is not a free country. If a country is not free, then it is unworthy of its people’s love. The U.S. puts large numbers of its people under the control of the criminal justice system and does so via demeaning dragnet searches.

First, consider the criminal justice system. A 2011 Department of Justice study (using 2010 numbers) found that the U.S. has about 3% (more than 7 million people) under the control of the criminal justice system. This includes people who are locked up in federal or state prisons, or local jails and those who are on probation or parole. Roughly, a third of those under the control of the criminal-justice system are locked up. 3% is a staggering number. By analogy, this is equivalent to discovering that that 30 out of every 1,000 people at a Bills game are under the control of the criminal-justice system.

Being under the control of the criminal-justice is a major roadblock in life. Felons are not allowed to vote or serve on juries. They are locked out of mainstream society by being denied licenses to a wide range of professions and having to check the “felon box” on applications for employment. They are discriminated against by private landlords, ineligible for food stamps, banned from public housing, and subject to numerous restrictions on their travel and behavior. In her book, “The New Jim Crow,” Ohio State law professor Michelle Alexander points out these roadblocks make it unsurprising that in 2000, more than one-third of prison admissions were for parole violations.

Consider next incarceration. Writing in the New York Times in 2008, Adam Liptak points out that the U.S. locks up roughly 1 in 100 adults (about 2.3 million people). Liptak further notes that the United States clearly loves incarcerating its people. The United States has less than 5% of the world’s population but about 25% of its prisoners. We have 700,000 more people imprisoned than China despite its having four times more people. We incarcerate people at roughly 5 times the rate of Great Britain, 8 ½ times the rate of Germany, and 12 times the rate of Japan. In fact, the U.S. imprisons people nearly 6 times more often than do other nations. Even with all this incarceration, the U.S. still has higher rates of murder and assault.

This policy wreaks havoc on blacks. Alexander points out that nearly one-third of black men are likely to spend time in prison at some point in their lives. Consider what that number means to black women.

Alexander argues that the problem is the drug war. She points out that more people are incarcerated today for drugs than were incarcerated for all reasons in 1980. Between 1985 and 2000, she notes, two-thirds of the increase in federal prisoners and more than half of the increase in state prisoners were due to drug offenses. Nor are drug offenders violent. Since the drug war began, she observes, more than 31 million people have been arrested and most arrests were for nonviolent possession. Most people in state prisons for drug offenses have no history of violence or even significant selling history.

Many arrests come about through demeaning and blatantly unconstitutional searches. The courts have in effect ruled that drug searches are not covered by the Fourth Amendment. Police regularly request to search citizens knowing that they feel coerced to consent and without informing them that they have the right to say no. One officer stated that when searching bags at bus and train stops, he had searched nearly 3,000 bags without being refused consent. One estimate of a Drug Enforcement Agency’s traffic-stop program found that 98% of the searches were based only on drivers’ verbal consent and had no other legal authorization. In 95% of these stops, no drugs were found. These are dragnet searches.

Stop-and-frisk searches are widespread and repeatedly upheld by the courts even when merely based on such a loose standard as a police officer’s “judgment and experience.” Pretext-stops allow police to stop and look over cars based on the pretext of a traffic-code infringement, even when they openly admit the traffic violation is a pretext. As Georgetown University law professor David Cole points out, because virtually everyone violates a traffic violation, police can use these stops to search whomever they want. These searches are often combined with aggressive requests to search the driver’s car. The courts have even held that the use of drug-sniffing dogs around cars or luggage doesn’t even count as a search.

One objection to my argument is that people can remain free if they merely avoid activities that society’s schoolmarms have prohibited (drugs, prostitution, gambling, open containers, and so on). Alexander cites one government study that found that 2-5% of prisoners are innocent, so the objection is problematic. Even if this were not the case, criminalizing the lives of millions of people when we know they will engage in recreational activities that victimize no one is hardly the mark of a free society.

A second objection is that the U.S. has other benefits that make up for its outrageous criminal-justice system. This is doubtful. The fact that government at all levels takes more than one out of every three dollars earned suggests that the government’s doesn’t respect economic liberty. Free countries simply don’t take away a third of what you make.

A third objection is that the U.S. is still better than other countries. This sort of argument is the last refuge of a scoundrel. Consider this analogy. A weakling prisoner lives on C-Block and is occasionally victimized by prison rapists. When he reports what’s going on to the warden, the warden tells him that he should love C-Block given the far worse treatment that weaklings get in the A- and B-Blocks. Even if other countries treat you worse, that is no reason to love your abusive country.

A fourth objection is that patriotism is aimed at the U.S. as a country and not its government. The problem is that it is unclear what is left when you subtract the government from the country. Perhaps what is left is love for the people who do not work for the government. It is unclear why our love should be directed at them rather than focused on a smaller group, such as one’s family, neighborhood, or town. In any case, it’s likely impossible to love hundreds of millions of people whom one does not know.

Patriotism toward an abusive country makes no sense. Despite the flag-waving, speeches, and salutes, the U.S. criminalizes oceans of people and is unworthy of such an outpouring of emotion.