#alegal

“The “war” on crime that began within a few years of the publication of the Model Code is the most recent, and arguably the most radical and broadest-sweeping, manifestation of punishment as an exercise of the police power. Before highlighting some of the policial features of the war on crime of the past fifty-odd years, which since 2001 has been transmogrified and expanded from a domestic program of criminal incapacitation into a global war on terror, let me try to shed light on its policial nature in a different way: by exploring the sense in which it is a misnomer.

Within the framework of the distinction between police and law, the so-called war on crime more properly appears as a police action on crime, or more accurately still as a police action on criminals. (Slippage between crime and criminals—and more recently between terror and terrorists—as objects of penal action is characteristic of police governance.) Wars can be seen—conceptually—as an inter-communal conflict among equals. Wars, unlike police actions, are not essentially alegal; they are governed by a law of war, if only in theory. Modern wars are declared with the consent of the governed; police actions are prosecuted by the sovereign irrespective of that consent. 

To regard another as an enemy in war is to recognize that person, in certain respects, as an equal, governed by common rules, now codified as the law of war. There can be—and has been—talk of “just wars”; there are no “just police actions,” only necessary, prudent, successful, expedient ones.

Consider, for instance, the radically different treatment of regular enemy soldiers and partisans or guerrillas in the event of capture. Much of the law of war is devoted to determining who is entitled to the benefit of treatment as a prisoner of war. The perverse desirability of the classification, and treatment, as a prisoner of war has become explicit in the “war on terror,” which the U.S. has conducted as an extra- or alegal police action against terrorists, labeled “illegal enemy combatants,” who by definition, and by design, are not eligible for prisoner of war status.

The objects of the so-called war on crime likewise, though less explicitly, fall short of the status of enemy in war and, once captured, of prisoner of war. A war on crime would treat the foe as equal to the friend, not radically inferior to him. Take, once again, the law of war governing the treatment of prisoners of war, built on the principle of basic equality of captor and captive. Enemy prisoners of war must be tried “under ... the same court system and . .. the same procedures as members of the armed forces of the Detaining Power.” They are subject to the same “laws, regulations, and orders” that govern the “armed forces of the Detaining Power.”

Prisoners of war “shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” They may keep their uniforms, including indications of rank and medals.  “The Detaining Power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners,” and a prisoners’ representative has a voice in the administration of the facility. Although an escape attempt may give rise to disciplinary measures, as opposed to penal sanctions, “even if it is a repeated offence,” recaptured escapees “shall not be liable to any punishment in respect of their previous escape.”

In general, then, the law of war can be said, at least in theory and within strict limits, to recognize the status of prisoners of war as persons and therefore also of the fundamental equality of captors and captives. Contrast the status of war enemies with that of offenders marked for penal treatment in the so-called war on crime. Penal treatment in American correctional institutions begins with a ritual of differentiation and degradation. Objects of correction are stripped of their connection to normal society. They are assigned a number, their possessions are confiscated, they are subjected to a full body “cavity” search, dressed in prison garb, and thoroughly cleansed. As a confirmed human threat requiring incapacitative isolation, the convict-inmate is prohibited from possessing anything, except as specifically permitted by the warden. 

From the moment they enter the prison, objects of penal correction fall under the virtually unlimited disciplinary authority of the quasi-patriarchal warden to whom authority to control the prison as a quasi-household has been delegated, regardless of whether the operative model of prison governance is the family, the factory, the military unit, or the slave plantation. Convicts are institutionally infantilized; they will depend on the warden for sustenance as well as for correction. They enter the prison not as a person, but as an “inmate” in the “custody” of the “warden,” i.e., as a member of a household subject to the governing discretion of the householder, as policial object, rather than as legal subject.

It is no surprise, then, that—if only to maintain the conceit of equality of status between captor and captive—the law of war takes pains to distinguish prisoners of war from “convict” prisoners. The internment of prisoners of war in “penitentiaries” is expressly prohibited. Not even for “disciplinary punishment” may prisoners of war be “transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.).” As a result, prisoners of war may not be housed in “prisons,” lest they be mistaken for prisoners of the war on crime; instead, they are placed in “camps.”

As one might expect in a police system of “penal treatment” that prescribes “interference to prevent disobedience,” the sanctions for disobedience in the eventual administration of the requisite treatment in peno-correctional settings are varied, comprehensive, and flexible in substance, and discretionary in application, as well as central to the treatmentist enterprise. Prisoners, after all, already have been diagnosed with abnormal obstreperousness as evidenced by their conviction of a criminal “offense,” i.e., an offense against the sovereignty of the state. (For this reason, the term “perpetrator” may be preferable to that of “offender,” at least in a theory of penal law, rather than of penal police; while crime as an interpersonal phenomenon can also be seen as giving offense, against the equal personhood of the victim, the notion of “offense” may be too intimately connected with its traditional usage, as an affront against the sovereign’s superior status, to be retained in a person-based egalitarian account of penal law.) Acts of disobedience, or any manifestation of a disobedient disposition, thus are subject to prison discipline, including the further differentiation and degradation implied in the use of solitary confinement and transfer to so-called “special housing units” within existing prisons, or entire prisons dedicated to the control of “problem inmates” (“super-max”).

More mundanely, prison discipline deprives inmates of “privileges,” which are granted, and denied, at the discretion of the warden. These privileges, say, to possess certain items—such as a television set—or to wear certain clothes or to don a particular hairstyle or to earn money or to leave one’s cell, and so on, represent markers of normalcy and equality, and more specifically of the ability to exercise one’s capacity for autonomy consistently with others’ exercise of that capacity, i.e., to live in a community of equal persons. 

In this sense, to deny these privileges to the prisoner, or to deprive her of them once given, is to reconfirm her sub- or at least apersonal status. More fundamentally, the very rhetoric of discretionary privileges, rather than of personal rights, reflects the alegal nature of so-called correctional institutions in a penal police system. Even a privilege granted remains a privilege, as even a benevolent patriarch remains a patriarch.

In the wake of the events of September 11, 2001, the “war on terror”—or rather the police action against terrorists—continues the policial project of the so-called war on crime on a global scale, and simply redesignates its object, from crime to terror. To the extent the substantive criminal law plays a role in the war on terror it is in the form of enforcement tools long familiar from the war on crime. The crimes are traditional offenses, including standard offenses against the person, ranging from assault to murder and property destruction, along with the likewise familiar staples of inchoate and vicarious criminal liability such as conspiracy, possession, and complicity. These ingredients are combined, and remixed, in the “new” offense of “provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so,” which the U.S. Supreme Court upheld against a specificity (void-for-vagueness) challenge (Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)).

Beginning with the general part of substantive criminal law, American penality in the age of the wars on crime and terror is characterized by the ubiquity of, and heavy reliance on, so-called inchoate (or incomplete) and vicarious criminality. Inchoate criminality comes in various forms, including attempt, conspiracy, solicitation, facilitation, and—perhaps most important—liability for possession in all shapes and sizes, including simple and compound possession (i.e., possession simpliciter or with the intent to use the item possessed) actual (or physical) and constructive possession (i.e., possession through the (potential) “dominion or control” over an area containing the item in question or over a person in actual possession of the item) of scores of items, ranging from firearms and all manner of other weapons, dangerous weapons, instruments, appliances, or substances, including toy guns, air pistols, and rifles, tear gas, ammunition, body vests, and anti-security items, to burglary tools or stolen property, and of course drugs, and everything associated with them, including drug paraphernalia, drug precursors, not to mention instruments of crime, graffiti instruments, computer-related material, counterfeit trademarks, unauthorized recordings of a performance, public benefit cards, forged instruments, forgery devices, embossing machines (to forge credit cards), slugs, vehicle identification numbers, vehicle titles without complete assignment, gambling devices, gambling records, usurious loan records, prison contraband, obscene material, “premises which [one] knows are being used for prostitution purposes,” eavesdropping devices, fireworks, noxious materials, and so on.

The war on terror, if it doesn’t simply draw on it, supplements this list of contraband, with such things as “radiological dispersal devices,” “any funds in which a foreign terrorist organization, or its agent, has an interest,” or, in the U.K., “money or other property” intending “that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism,” and, more broadly still, “an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” (The Australian Criminal Code similarly criminalizes possession of a “thing” that is “connected with preparation for, the engagement of a person in, or assistance in a terrorist act.”)

Possession offenses are significant not only because they expand the concept of inchoacy beyond the already wide boundaries of more familiar inchoate offenses such as attempt and conspiracy (which are likewise prominently featured in the war on terror), but also because they nicely expose the futility and groundlessness of even the most basic of basic principles of Anglo-American criminal law, actus reus. Traditionally, both attempt and conspiracy require the commission of some act, however remote or minute. Attempt liability in theory attaches only once the elusive line between preparation and attempt has been crossed. Conspiracy ordinarily (though in contemporary American criminal law, not necessarily) requires the commission of some overt act in furtherance of the conspiratorial agreement.

Possession requires no act, no matter how framed. Possession is a status, rather than an act, a status that describes the relationship between a person and an object, most obviously through physical contact or at least proximity, but—in the case of so-called constructive possession—also indirectly through another person. Possession liability extends the general project of inchoate criminality beyond the artificial, and notoriously malleable, bonds of the law of attempt and conspiracy by permitting the state to identify and eliminate perceived threats at a still earlier stage. There is no need to await action of any kind once the possessor, through the possession, has revealed himself to pose a risk of offense, where the possession may represent sufficient evidence of dangerousness by itself or, more commonly, in combination with a characteristic of the possessor, including a prior conviction as in “felon-in-possession” offenses. 

The significance of the contraband, after all, lies in its relevance to a diagnosis of the dangerousness of its possessor, rather than of its dangerousness. Judgments about the possessor’s dangerousness are inherently discretionary and drive much of contemporary policing, not merely the war on terror, which is facilitated by a dense and wide net of possession offenses so common that the question ordinarily is not whether a suspect has committed a possession offense but which one, and most important, whether this offense is taken to signify sufficient dangerousness to warrant more intrusive state intervention (beyond the initial observation, investigation, search, and seizure).

Possession offenses combine inchoate with vicarious, or derivative, criminality in at least two senses. In all cases, possession liability is derivative insofar as it is based not on an act, but on the association with a dangerous thing. Liability for possessing contraband flows from the contraband itself, without more. In the case of constructive possession, liability derives from the actual possession of the contraband by another (so that constructive possession in fact is twice derivative, from object to physical possessor and then from physical possessor to constructive possessor). As a result, constructive possession can also be shared, with more than one person being in constructive possession of a thing, particularly when the constructive possession results from “dominion or control” over an area (such as an apartment or a car) rather than over a person (who is in actual possession).

Conspiracy liability, another long familiar feature of American penality that also makes frequent appearances in the American war on terror, likewise can be seen as both inchoate and vicarious, most obviously in jurisdictions that—like U.S. federal criminal law—follow the so-called Pinkerton rule that holds all conspirators liable for any substantive offense foreseeably committed in furtherance of the conspiracy, even absent the ordinary prerequisites for accomplice liability (notably the requirement of intentional facilitation or solicitation).

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A penal regime that is driven by enforcement and regards substantive criminal law as a hindrance at worst and as an imperfect, if technically necessary, facilitator at best, does not favor narrow and precise offense definitions. Small wonder, then, that the war on crime and the war on terror show no particular concern for the principle of legality in general, and the principle of specificity (void-for-vagueness) in particular. Two of the central substantive tools in the federal war on crime, RICO and honest services fraud, are not only marked by great flexibility and breadth, but are championed for that very reason. Their malleability and scope mark them as powerful tools in the hands of state officials who, in their unfettered discretion, wield and mold them as necessary in the penal police action of the moment, against crime, drugs, and terror.”