The monetization of infraction
What if the state’s manner of dealing with traffic offenses were applied to all crime, and punishment consisted solely in monetary fines instead of jail time? Let’s start with the humble parking ticket and work our way up to more serious crimes. What interests me about this particular infraction is that everyone, the most conscientious car owners included, gets ticketed sooner or later. There are many otherwise perfectly law-abiding citizens who, whether due to sheer carelessness or obsessional necessity of some sort, get ticketed quite often. There are those who accumulate so many parking tickets they give up and stop paying them altogether. Or let’s take the speeding ticket. Sooner or later everyone receives one of these too, unless you regularly smoke pot while driving and are too paranoid to venture out of the slow lane.
While it would surely be interesting to see how drivers collectively conducted themselves in the absence of any rules of the road (spontaneously forming posses of autos converging on reckless drivers?), I doubt there is an anarchist or libertarian out there who doesn’t support some basic traffic laws. Yet as everyone knows, traffic penalties are imposed not primarily for the common good but to generate cash for city budgets. In the U.S., some 25-50 million moving-violation tickets are issued each year, amounting to $3.75-7.5 billion in revenue, and another $3.75-7.5 billion in profits for insurance companies, who gleefully hike the premium of their ticketed customers. As the National Motorists Association puts it, “No other class of ‘crime’ is as profitable for state and local governments as is that of traffic tickets.” Parking tickets generate a hefty cash flow as well. I haven’t tracked down the national figures, but New York City alone earned $565 million in parking fines in 2015.
Delinquent driving is the perfect cash cow and the penalties are evidently increasing year by year. They would probably skyrocket if it weren’t certain constraints, such as the law of the marketplace. When costs rise beyond a certain point, consumers stop cooperating. In the face of exorbitant fines, drivers tend to show up in traffic court, where they often succeed in having charges dropped, as courts feel a certain moral obligation to hold municipal avariciousness in check. Alternatively, drivers might simply start behaving themselves, causing an unacceptable plunge in public revenue.
More serious traffic offenses are monetized as well — speeding 25 mph over the limit, driving under the influence, leaving the scene of an accident, manslaughter while DUI, etc. – though obviously the incidence rate drops off significantly with misdemeanors and felonies, along with the profits they potentially bring in. The number of DUI arrests annually is one million, a fraction of total traffic offenses. Still, the best of us get tripped up now and then. I have a friend who never had a traffic violation in his life until he got pulled over recently after a couple drinks and was booked for DUI. He was exactly at the 0.08% blood alcohol limit (for Illinois) and not over. He fell below the limit when he was again breathalyzed at the station a few hours later while handcuffed to a chair, and with the help of a lawyer managed to get the charges dropped. However, he still ended up with some $5,000 in administrative and legal fees. He’s lucky he wasn’t charged, which would have eaten up much more in jail or probation fees, not to mention a license suspension and a record.
In theory at least, financial penalties for minor offenses are a logical, fair and transparent form of punishment. Like the “sin” tax on cigarettes and liquor, they provide added revenue for government at no extra cost to the well-behaved citizen, placing the burden instead on those who take risks. A capitalist perspective takes things a step further and considers all possible means of monetizing and profiting off unlawful behavior. You could even describe risk as the ultimate product a punitive capitalist regime sells to the public: “Today we live in a world in which risk is manufactured and made quantifiable by new technologies and new forms of expert knowledge. Risk now inheres in everything we do, from eating, investing, and driving a car to simply breathing. Risk is, simply put, ideological” (Gregory Tomso, “HIV Monsters,” in Halperin & Hoppe, The War on Sex). The focus of interest here is not so much the petty or the professional criminal (theft, burglary, fraud). Less than 5% of the population ever ventures into this territory, while less than 1% commit assault and robbery, and far fewer still rape or homicide (for more detailed crime statistics see Statista). As we’ll see, the American state does indeed capitalize on all these crimes, increasingly so. But a more profitable enterprise would concentrate on the predictable manifestations of human weakness which the general population cannot help but fall prey to again and again – the irrepressible infraction or offense. Traffic violations are one. Debt is another. Illicit drug use and sexual misbehavior are two more. These are the real cash cows.
American capitalists and politicians understand this all too well and this accounts for the bloated, wasteful, and horrific U.S. prison-industrial complex. Incarcerating people is needlessly expensive and accomplishes nothing except to be a drain on the state and a drag on the economy. Each day spent in jail is a lost day in earnings and a worker’s productivity, not to mention it often entails loss of job and career; such is gravely demoralizing to the convicted and abets a vicious cycle of recidivism. It is both possible and highly feasible to drastically reduce the prison population without compromising public safety; Finland and Norway are notable examples, with incarceration rates of only 52 and 74 per 100,000 respectively, compared to 680 for the U.S., the world leader.
In a more rational system of justice, no one would go to jail for any offense except violent acts. If punitive fines replaced jail time, the convicted could continue to work and be productive members of society. Fines would be graded according to the severity of the crime and wages garnished in proportion to one’s ability to pay. That in itself would be enough of a punishment and a strong disincentive to repeat the offense, and of course repeat offenses would be punished more severely. Offenders would also be required to undergo some form of rehabilitation and community service. Violent criminals who must be sequestered for the community’s safety should be put to work in prison for reasonable wages to pay for the cost of imprisonment and support their families. And if I may jump ahead and adumbrate a few points I’ll return to below, no one should be jailed for non-violent sex crimes committed against adults but rather educated and fined; prostitution should be legalized, and the sex offender registry abolished. Dangerous, high-potency drugs should be controlled but drug use should be decriminalized across the board, and addicts provided with government-funded treatment regimens. The medical, pharmaceutical and insurance industries meanwhile have no business profiteering off those who are ill or hospitalized. Nor — now that we’re on the subject of American-style profiteering — should higher education have the right or means to plunge students into lifelong debt.
This is not to say all forms of punitive profiteering are evil or wrong. As with any business, those running it are naturally entitled to profits in return for producing a quality product or service, in this case devising effective, just and humane crime-reduction solutions. But for a monetary-based punitive system to work, people must have money to pay the fines imposed on them. The U.S is unique in its bizarre, schizophrenic approach to punitive justice, in that it simultaneously fines and incarcerates the convicted, who thus lose the means to pay their fines once prison deprives them of employment. The U.S as well, particularly since the 1980s when the prison population ballooned, locks up more and more people for a greater variety of offenses and keeps them locked up longer than anywhere else. There are, of course, nefarious regimes elsewhere in the world which are extremely brutal toward their citizens, but such tends to be reserved for political prisoners. U.S. domestic policing, by contrast, directs its brutally toward a much wider swath of the population.
When a government resorts to extreme forms of retribution out of all reasonable proportion to the crime and well beyond any civilized standards, we call this symbolic punishment. Symbolic punishment serves to show off the sovereign’s or the state’s power. It functions to instill fear in the populace, sending the message, “Watch out, you may be next.” Its historical analogue is the burning of witches at the stake and the public beheading of infidels and traitors, spectacles which magnify the agony of the condemned for the sake of moral education and general catharsis. Today it survives in the cruel mental and physical humiliation of the modern dungeon — U.S. prisons. The display of symbolic power is the prime activity of authoritarian regimes, as an intimidated population is easier to control and more amenable to fascism.
The United States increasingly stands apart from the world in its harsh attitude toward those who break the law. Ever more inventive ways are devised to place an extreme punitive financial burden on the offender – known in the parlance as “offender-funded justice” – while depriving the offender of the means to pay. The United States leads the world by far in incarceration rates: 6,800,000 under some form of correctional control in 2018, or about 3% of the adult population. This breaks down into 465,000 in pre-trial detention in local jails, 150,000 convicted in local jails (2019 update: 700,000 in jails), 1,316,000 in state prisons, 225,000 in federal prisons, 840,000 on parole, and 3,700,000 on probation; one fifth of the incarcerated population is locked up for nonviolent drug offenses. An additional 34,000 are in indefinite immigration detention (15,000 per day) at the hands of ICE, 22,000 in so-called civil commitment (mental institutions where sex offenders deemed violent are kept for life after serving their sentence in prison, even if released early for good behavior), and 859,500 on sex offender registries (in 2016), which includes many convicted of sex offenses but no longer paroled or on probation; one fourth of those convicted of sex offenses are juveniles age 11-17 (Judith Levine, The War on Sex). Turning to minors: 48,000 are in juvenile detention, adult jails and prisons, while some 400,000, many involuntarily, are in out-of-home foster care. Meanwhile, 13,000 migrant children are being held in privately run tent cities following Trump’s anti-immigrant crackdown, and there are indications many of them will given up for adoption and thus severed from their parents, who will have no way of knowing what happened to them.
A common refrain is that those in jail deserve to be there because they have a debt to pay to society. And as for those who get off lightly with only a probation sentence, it can’t be that bad, can it? Well, it is pretty bad, in fact. The system milks anyone who makes one false step – and their families – to the max. The reader is directed, for instance, to a New York Times article recounting in depressing detail how one Baltimore woman, a nurse’s aide, incurred thousands of dollars in fines and repeated jail time for a single DUI offense which caused no accident or injuries; and to an equally depressing New Yorker article about an Alabama woman, a day-care center custodian, who experienced similar financial hell from a single driving on at expired license conviction. Both were poor and Black but gainfully employed until they lost their job due to jail time, which prevented them from paying their various fines, pushing them deeper into the hole and back into jail – an almost inexorable vicious circle for people at the edges of respectable society.
Underscoring their arbitrariness, the amount and variety of administrative and correctional fees issued by courts, jails, probation agencies, electronic surveillance contractors, etc., vary greatly among states and cities, some putting a greater burden on the tax payer, others a greater burden on the defendant. Typical rates which a misdemeanor offender must pay might include $2,000 to a bail bondsman, $1,500 to a lawyer, and $250 to the court. If the offender is able to avoid jail time and put on probation, there will be fees amounting to $80-$200 per month to the probation service, and another $300-$400 per month in rehabilitation courses, which can stretch from as little as twelve hours for first-timers to thirty months or more for repeat offenders (data compiled from sources cited in this essay). If electronic surveillance or house arrest is imposed, the GPS ankle bracelet rental can run $300-$500 per month. Many sex offenders are saddled with electronic monitoring for years or for life (Roger Lancaster, Sex Panic and the Punitive State).
Another misconception is that tax payers pay for prisoners, who don’t deserve the right to bask in the lazy comfort of a government-funded jail cell. The reality is that the taxes are eaten up by bloated prison bureaucracies and there is still a shortfall of funds. Since the 1980s, the jailed population has burgeoned beyond the capacity of existing budgets, and governments have turned to private companies and contractors who claim to operate prisons more cheaply (with resulting deterioration in conditions and kickbacks to powerful politicians). Both private and state jails are increasingly charging prisoners for everything from room and board and medical care to laundry and toilet paper. The average “pay-to-stay” rate is a hefty $68 per day or $25,000 per year. Some local jails in California charge prisoners as much as $100-$150 a day. You might think these high costs would guarantee a basic standard of care and protection for the incarcerated, expected of a developed country. But the quality of U.S. prisons is by all accounts dreadful, with threadbare medical and virtually no psychiatric care, beatings, arbitrary punishments, and 70,000 rapes annually. Some prisons don’t discourage rape; others penalize the slightest signs of consensual same-sex affection (hand holding, glancing) with solitary confinement (David Halperin, The War on Sex). The fees incurred by prisoners might be recouped through forced labor but for the outrageous crumbs for wages contemptuously tossed at prisoners; Louisiana pays four cents an hour. Prisoners thus accumulate huge debts from years in jail. Collection agencies are hired to harass their families to pay up on their behalf, and they hound parolees upon their release, which in turn contributes to the high recidivism rate, as parolees have a hard enough time finding gainful employment and acceptance back into the community even without any indebtedness. Many prison debts simply go unpaid, for reasons that are not hard to understand: they have no bearing on reality.
The American sexual dystopia
The U.S. stands apart in a further respect. As Roger Lancaster puts it, “Americans make sex a key criterion of their moral hierarchy with a zeal that is not equaled in any other industrialized democracy” (Sex Panic and the Punitive State). Consequently, no other criminal offense unleashes the collective rage of the sex offense. American culture’s unique hostility toward the sex offender has its roots in Anglo-American Puritanism and finds contemporary expression in perpetual national anxiety over the specter of the “imperiled child” (Lauren Berlant, cited in Lancaster). It’s too early to assess the #MeToo movement’s impact on sexual mores and codes of conduct. To be sure, the outing and shaming of people in authority who have exploited those under them for sexual gain is laudable. At the same time, rewriting ever broader forms of sexual misbehavior into law — termed “carceral feminism” (Elizabeth Bernstein, The War on Sex) — only gives greater discretionary power to the courts and the police to expand the population of offenders beyond its already ominous scope. In a snowball effect, the public clamors for greater vigilance and ruthlessness against the sex offender, politicians and judges are elected on platforms promising just that, and the prison-industrial complex in turn feeds on increased funding and sanction to apply their powers with greater indiscriminateness on the population at large. Of course, one generally needs to commit an offense to be convicted of one, but the standard of “equivalency” is applied almost exclusively to sex offenses: all are deemed equally bad and deserving of the harshest possible retribution. Many supporters of #MeToo have been quite outspoken in rejecting any distinction between milder forms of harassment and outright sexual assault. Actress Natalie Portman resorted to the phrase “sexual terrorism” to refer not to, say, sexual slavery under ISIS, or to stalking, beating or rape, but to sexually explicit fan mail she had received upon the release of her film The Professional when she was thirteen.
Few Americans, I wager, have any understanding of the consequences of being convicted of a sexual offense in their own country in the early twenty-first century. Let’s consider a case I pulled off the news almost at random while researching this post. A forty-six year old physician, Shafeeq Sheikh, was recently convicted of sexual assault on a twenty-seven year old patient whose breasts he had fondled while she was medicated (though conscious) and receiving treatment for asthma in a Houston hospital, and given ten years probation. The case garnered attention as a miscarriage of justice over the supposed leniency of the sentence and lack of jail time. The article did take care to mention, with no added commentary, that the doctor lost his medical license and would be registered as a sex offender. This is significant. One need not feel sympathetic toward the man or condone his behavior to step back and take a soberer view of his fate: he might be better off in jail. For the offense of sexual assault (no matter he claimed in court it was consensual), he will probably be on the sex offender registry for life. What this entails exactly will be decided by his probation board, and varies as well from city to city and state to state, but some variation of the following is likely. He will be permanently jobless, as all employers, from hospitals down to fast-food restaurants and custodial services do background checks and routinely reject anyone with a sex offense. If he’s lucky, he’ll be allowed to live in his current home, but he may not be if it’s within a certain distance of schools, childcare centers, playgrounds, swimming pools, churches, movie theaters, and anywhere where children visit.
The registry sprang into being two decades ago as a means of monitoring the whereabouts of pedophiles upon the completion of their sentences, but has grown to include sex crimes of all types, including those committed against adults. Once one is on the registry, however, the same restrictions apply, which are primarily geared to limiting registrants’ geographical proximity to children. The registry is publicly accessible online and includes every registrant’s mugshot and address but typically few details on the nature or seriousness of the offense committed. It’s therefore assumed by default that any registrant is a child molester. In Mr. Sheikh’s case, neighbors and vigilantes may try to drive him out of his neighborhood by throwing rocks through his window or other means. If he can’t live at home, he will find it virtually impossible to rent a place anywhere else, as prospective tenants are given background checks too. Residency restrictions could prevent him from living almost anywhere in the city — all for the sake of children’s safety. He could very well be rendered indigent and homeless, banned even from homeless shelters. If his doctor’s salary had been supporting his family and relatives (he has a wife and child), they’re in tough luck, as they will now have to start supporting and feeding him, and doing whatever they can to help him scrape by in some rural trailer park or tent, along with the shelling out of hundreds of dollars in monthly probation fees and possibly electronic tracking on his behalf. Their best option, if (judging by his name) they are not already U.S. citizens, is to return to their country of origin, though he himself likely won’t be allowed to leave Texas for the duration of his probation. To call it a disaster for both him and his family is an understatement. For the record, let me state that I don’t mean they should return to their country of origin, only that they will probably be better off there than in their miserable circumstances in the U.S.
In the public imagination, or at least to those even aware of its existence, the sex offender registry is a well-deserved repository or garbage dump rightly reserved for monsters wholly beyond the pale of humanity. But it has become remarkably easy for almost any normal person in a stupid or thoughtless moment to get on the registry. Innocently patting a child on the butt; mooning or streaking during a drunken night out; urinating in public even after taking precautions to conceal oneself but caught on camera; accidentally stumbling into a woman’s restroom or unlocked clothing store changing room with someone in it; teenagers of the same age having consensual sex or sexting their nude pics to each other; prepubescent schoolchildren caught pulling down their pants; sleeping with a minor who falsely claimed with a fake ID she was eighteen; a massage therapist who grazes a customer’s breasts; a family member or unknowing parent of a sex worker accused of aiding and abetting sex trafficking by living in the same home: these are some of the offenses that can get one put on the registry (see my essay “An American Talisman” on the ease with which teenagers can get on the registry). Not that these acts will necessarily get you on the registry, but it can definitely happen, and once you’re on it, it’s basically all over for you. Sceptics who seek more confirmation of this modern American horror can find numerous resources on the web, such as their state’s government website or the Human Rights Watch report on U.S. sex offender laws.
It will naturally be pointed out that many sex crimes are indeed abhorrent and vicious, and Shafeeq Sheikh’s offense — sexual assault — is serious enough, at least in the eyes of the law, to merit extreme measures and prevent people like him from ever being able to offend again. This argument is often coupled with an oft-repeated myth about sexual predators, namely that they cannot change their nature and will relapse again and again unless prevented from doing so by being permanently locked up. In fact, the research clearly shows the opposite to be true: of all classes of criminals, sex offenders are among the least likely to reoffend, and most offenders, contrary to popular conception, aren’t strangers lurking in the neighborhood but family members or close acquaintances, most of whom are never caught; many sex offenders turn out to be none other than minors themselves. When really violent offenders are caught and convicted, they tend to be safely tucked away in prison for a long time. Upon completion of their prison term, those judged likely to reoffend may then be consigned to so-called “civil commitment” and locked up in a mental institution for the rest of their life.
For the rest, their listing on the registry serves no rational purpose. On the contrary, the greatest risk factor lies not in their supposed penchant to reoffend, but in prohibiting their rehabilitation and reintegration into civic life with a job and home. Even the police understand that people are more likely to reoffend when deprived of the means of survival. The United States is the only country in the world that banishes sex offenders from the community after serving their sentences (Human Rights Watch; see also Judith Levine, “Sympathy for the devil: Why progressives haven’t helped the sex offender, why they should, and how they can,” The War on Sex). This pitiless retribution extends to entire families when one member is tripped up in a sex offense, starkly dramatized in Zoe Whittall’s contemporary update of Nathanial Hawthorne’s The Scarlett Letter, her novel The Best Kind of People (Ballantine, 2016), in which a wealthy Connecticut family is ferociously vilified after the father, a middle school teacher, is accused of propositioning one of his students. No matter if the suspect turns out to be innocent: a high school teacher in Maine falsely accused of with sleeping with her seventeen-year old male student was not given her job back despite being acquitted of all charges, and is now relegated to restaurant work.
Sex crimes do of course vary in gravity from the benign to the violent, and the national sex offender registry implemented by the Adam Walsh Act in 2006 distinguishes between more serious Tier III (aggravated sexual assault, sexual abuse of a child under thirteen) and comparatively less serious Tier II and I offenses. Yet sentencing varies widely and can be arbitrary and capricious. Shafeeq Sheikh will presumably be classified as a Tier 1 offender in that he only received probation, but all states including Texas can override this with stricter registry restrictions than the national requirement. This has had the unfortunate effect of producing armies of sex offender vagrants wandering from city to city to find one that will let them reside in. Milwaukee was one such dumping ground until it tightened up its residency restrictions in 2014, forcing some 200 registered sex offenders back out onto the streets.
Was Sheikh’s crime truly heinous? Offensive and idiotic, certainly, but it could have been worse. Let’s again step back and try to view his act objectively and dispassionately by providing some context. Since the beginning of modern medicine, male doctors have inevitably had close physical contact with their patients, contact which can easily become sexual, instigated on both sides. The common female affliction of “hysteria” in the nineteenth century is now understood to refer to depression and anxiety brought on typically by sexual neglect and frustration in marital life. It was commonly treated by a male doctor administering a “pelvic massage” by manipulating the inside of the vagina with his fingers, with the patient’s consent and probably intense satisfaction. I can think of no inherent reason why this should be objectionable, for patients who invite it. Many male doctors enter the obstetrical and gynecological fields of medicine out of a fascination with the female body and an urge to service their patients with some degree or manner of physical intimacy when called for. Many female patients as well certainly cooperate in this (I cast this discussion in traditional gendered terms but the same could apply to female doctors and male patients or same-sex interactions). In a freewheeling essay written in the 1970s, “The politics of female sexuality,” feminist Germaine Greer averred that connoisseurs of the female genitals were the most attentive and appropriate of physicians: “There are doctors who are gynecologists because they are into cunt, although most of them sooner or later are therefore struck off. These are the ones who should be the health officers of the women’s movement”; and again in the essay “Lady love your cunt”: “If you should hear of such a doctor, go to him” (The Madwoman’s Underclothes).
If physical intimacies between doctors and willing patients have long been the norm, the present is a different matter, in the U.S at least, under our current intolerant regimes of sexual and moral hygiene. Any doctor today who dares venture into this territory without the explicit expression of desire from his female patients is a reckless fool, and reckless even still. But because sex is one of the irrepressible infractions, there will always be types like the University of Southern California gynecologist, George Tyndall, who recently lost his job after reportedly stroking the vulva of his patients and complimenting them on their body, many of them Chinese students, for whom he had an apparent fetish (and it seems not a few of them enjoyed his intimate attentions). Yet we must hold our instinct for social vengeance in abeyance. Do we really want to collapse all distinctions and punish a wayward doctor who touched a patient inappropriately the same as if, say, he had done the same while threatening her? Neither Dr. Tyndall nor Dr. Sheikh were evil or violent or a danger to their community. The law should be attuned to this and apportion their punishment accordingly.
I suspect that most people – educated, civilized people – could hardly care less about the fate of convicted sex offenders. As the reasoning goes, they only got what they deserved. They constitute a small enough slice of the population to be of little concern to the rest of us. Their punishment, though harsh, sends a signal to the law-abiding majority to stay clear of this most volatile of society’s hazard zones. If their example succeeds in keeping such offenses in check, then it is of practical consequence. In any case, our sympathies should lie with the victims of sexual abuse and assault, not the perpetrators.
I have a different angle on this. Persecution of hated groups is one of the defining features of fascism. Once underway, oppression’s tendency is to deepen, multiply, and encroach on ever larger segments of the population. It is not an inevitable but a dynamic, reinforcing process, requiring the cooperation of the state and the masses. Even the most dictatorial or tyrannical of regimes seek some legitimacy in popular support to justify their policies. Fascist regimes tap into the social and economic discontent caused by these very regimes to focus and direct popular rage at scapegoated groups through crude nationalist or racist demagoguery. By doing so, they lift the bar of state power and enlarge the parameters of control over the entire population. And it doesn’t just stop at one group, such as Hitler’s persecution of the Jews; the Nazis also singled out Communists, gypsies, homosexuals, and the disabled. The more categories of the despised there are the better: they allow the dominant group to define itself against them and feel good about itself, which shores up more popular support for the state. The state in turn gives surrogate expression to the public’s inchoate rage and renders this discourse articulate and eloquent. As the public increasingly relies on the state to explain reality, people are dumbed down in the process and made more susceptible to brainwashing. They do the state’s bidding in channeling back this articulated rage toward the hated groups. The most duped come to believe in and act out simplistic, paranoid fantasies of good and evil which bear little or no relation to reality. A notorious example happening right now is the rightwing “Q Anon” conspiracy supporters, who are targeting and harassing restaurants they believe to be running secret pedophile rings. Many of these deluded fomenters, invariably Trump supporters, are armed and have links with White supremacy groups and civilian militias, who could easily be incited to organized violence by opportunistic actors.
Sexual danger is as American as apple pie. It’s a ready-made excuse employed by politicians, the media and citizens alike to rally around, push through laws, grab power and effect change, all in the name of “get tough on crime.” A common characteristic of America’s outcast groups throughout its history is their supposed sexual threat: the Black male’s danger to White women, the perennial Hispanic’s danger to White Americans (recall President Trump’s “Mexican rapists” slur), the homosexual’s danger to White males, the pedophile’s danger to White children. But even as gay rights have secured legal victories, the scope of sexual offenses is being continually expanded. For example, one controversial new law, known as “affirmative consent,” can get college kids charged with sexual assault or rape if they can’t provide proof their partner verbally agreed to sleep with them. Pause for a second and consider this. Kissing and heavy petting which long slid gracefully and seamlessly into sex is now rape because one or both parties failed to announce their intentions verbally or record them in writing on a consent form. Such laws already exist and have popular support and could eventually apply to everyone. The state is happy to oblige, as it gives a lot of people in the bureaucracy and related sectors things to do and punitive profits to gain. Already, while no one seems to be noticing or at least protesting much, government coffers are militarizing the police, expanding the jail population, providing employment for the carceral complex, and solidifying business ties with private contractors in the electronic monitoring and surveillance industry. As the technology develops and evolves, there is no telling how it may become employed against all of us in the not too distant future.
Lately in the news there is much alarm over signs the Trump presidency is ushering in fascism, and that the American experiment in two and a half centuries of democracy is winding down. But the expansion of the prison-industrial complex I have outlined above got started four decades ago, electronic tracking and the sex offender registry two decades ago. Democratic and Republican administrations are equally to blame, not to mention the country’s long troubled history, going back four centuries, of the genocidal campaigns against Native Americans and the African slave trade. What Trump represents is an exacerbation of current trends: police behavior taking on a more sadistic and barbaric cast, testified by almost daily occurrences in the news (as long as, that is, we still have a free press). I think of the Black woman, Crystal Mason, who was recently sentenced to five years in a Texas prison merely for registering to vote when she unknowingly had been disqualified due to a previous felony conviction; the Mexican immigrant, Joel Arrona-Lara, pulled from his car by ICE agents in California while driving his pregnant wife who was in labor to the hospital, who had to drive herself the rest of the way; or the Honduran woman whose baby daughter was plucked from her breast by ICE agents while she was feeding her in a Texas immigration detention center. In a country with the toughest laws in the world against child molestation, there are reports of thousands of children being sexually molested in immigrant detention centers, a macabre irony if there ever was one. Or this: an innocent U.S. citizen, Laura Sandoval, was visiting an ailing relative in Ciudad Juarez, just south of the Texas border, and upon returning to El Paso apprehended by the CBP (U.S. Customs and Border Protection), which operates with impunity like a Gestapo. They took her to a nearby hospital where a male doctor subjected her to a vaginal and rectal examination for drugs (enforcing a bowel movement with a laxative). She was told that if she did not voluntarily indicate her consent on a form, they would charge her $5,488 for the hospital bill.
It’s not just minorities who are persecuted under fascism. Ordinary Caucasians are increasingly targeted, when they fall afoul of laws they are not even aware of. One of the newer invented groups of outcasts is the “bad mother.” Kim Brooks was observed and photographed dashing into a store in Virginia for five minutes as her four-year old son was busy playing with a game in her parked car, and charged with “contributing to the delinquency of a minor,” supposedly because her child had been endangered the moment he was left unattended. Luckily her charges were dropped in exchange for 100 hours of community service. Many other mothers have been arrested and charged for the same infraction when their child was never in the slightest danger. And don’t forget about nonsensical drug laws which turn potentially anyone into a criminal. Canadians crossing over from Vancouver, where marijuana is legal, into Washington State, where marijuana is also legal, face a lifetime ban from entry into the U.S. if evidence turns up they ever ingested the drug. This is how fascism works: insanely draconian punishment for innocuous, victimless infractions with the sole purpose of instilling fear in society at large.
Those eager to stamp out the dregs of society may want to consider whether they are unwittingly being ventriloquized by the voice of fascism – before it’s too late. For once fascism emerges in full panoply, it is as difficult to roll back as it is for a sex offender to get off the registry.
Eisen, Lauren-Brooke. “Charging Inmates Perpetuates Mass Incarceration.” Brennan Center for Justice (2015), available at https://www.brennancenter.org/sites/default/files/blog/Charging_Inmates_Mass_Incarceration.pdf
Gopnik, Adam. “The Caging of America: Why do we lock up so many people?” The New Yorker (January 30, 2012).
Halperin, David M., & Trevor Hoppe (Eds.). The War on Sex (Duke UP, 2017).
Human Rights Watch. “No easy answers: Sex offender laws in the U.S.” (September, 2007), available at http://hrw.org/reports/2007/us0907/us0907web.pdf
Lancaster, Roger N. Sex Panic and the Punitive State (U California Press, 2011).
Wagner, Peter, & Wendy Sawyer. “Mass incarceration: The whole pie 2018” (Prison Policy Initiative, March 14, 2018), available at https://www.prisonpolicy.org/reports/pie2018.html
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