On the morning of September 22, 1993, a law-abiding citizen named B.W. Sanders was driving his car down the street in Raleigh, North Carolina, when all of a sudden he found himself flagged down by a policeman and presented with a ticket for $25. Mr. Sanders, it turned out, had not been wearing his seat belt, and under a new state law, that crime carries the penalty he received. But in this case it was not just a traffic cop who flagged down Mr. Sanders. It was a force of some six dozen police officers as well as the governor of North Carolina himself, James B. Hunt. The governor was searching for a photo-op with which to advertise both the new seat belt law and his own personal devotion to law-and-order. Not only the 70 or more police officers but also an innumerable supply of newspaper reporters and TV newsmen were on the scene to record the governor’s triumph over the forces of lawlessness, and the next day Mr. Sanders’ wicked ways were recorded in the public press for his family, his employers, his neighbors, and indeed posterity to gander at. To make doubly certain that criminals like Mr. Sanders got the message loud and clear, Governor Hunt held a news conference near the state capital and harangued a crowd of some 150 police officers and state troopers, who were able to take time off from the apprehension of public enemies like Mr. Sanders to attend the governor’s words. “I took an oath to protect the people of North Carolina,” intoned the Tar Heel State’s answer to Dirty Harry, “and this is one way we must do it. . . Folks, we’re serious. We mean it. We’re going to do this.” And indeed, serious he is. As part of the war on the unbuckled seat belt crisis, the Raleigh News and Observer reported, “Law officers in all 100 counties [of the state] will intensify their efforts to find and cite motorists not using their seat belts. Agencies will compete against each other, winning cash for turning in the best performance.”
Governor Hunt’s grandstanding might be harmless enough were it not for certain other facts about certain other crimes in North Carolina that also sometimes make the news. Only a week before the apprehension and public humiliation of Mr. Sanders, the same newspaper reported on the state’s prison crisis. It seems that North Carolina has another new law in addition to the one on seat belts. This other law, passed by the General Assembly, imposes a cap on how many inmates can be incarcerated in the state prison, and the crisis is that, under this cap, most of the inmates now eligible for parole were imprisoned for violent and assaultive crimes. Most of the less dangerous criminals have already been turned loose, and now the prison system must release public enemies even more dangerous than drivers who do not buckle their seat belts. Since last June, no less than 14 parolees (including one of the men now charged with the murder of Michael Jordan’s father) have been arrested and charged with murder, and another parolee, a veteran of the state’s death row, murdered his girlfriend and then committed suicide, thereby unfairly depriving Governor Hunt of yet another photo-op. Last August alone, North Carolina paroled 3,700 prison inmates. One might think that if the governor of the state and the 150 police officers and state troopers who took time out of their public jobs to listen to him slap himself on the back for busting poor Mr. Sanders were really interested in upholding their oaths of office, they might turn their attention to the results of releasing hardened and violent criminals who have already been caught, sentenced, and imprisoned.
But the saga of the Napoleon of Crime in the homely person of B.W. Sanders is not an isolated incident. It is a representative tale that illustrates what I take to be an entirely new form of government, one that as far as I can tell is unique in human history and unknown to political theory, ancient or modern. Probably no other society has failed as dismally as the United States in the late 20th century to meet the basic test of any civilization: to enforce simple order and protect the lives and property of its members. History knows of many societies that have succumbed to anarchy when the central government proved unable to control warlords, rebels, and marauding invaders. But anarchy is not quite the problem here.
In the United States today, the government performs many of its functions more or less effectively. The mail is delivered (sometimes); the population, or at least part of it, is counted (sort of); and taxes are collected (you bet). You can accuse the federal leviathan of many things—corruption, incompetence, waste, bureaucratic strangulation—but mere anarchy, the lack of effective government, is not one of them. Yet at the same time, the state does not perform effectively or justly its basic duty of enforcing order and punishing criminals, and in this respect its failures do bring the country, or important parts of it, close to a state of anarchy. But that semblance of anarchy is coupled with many of the characteristics of tyranny, under which innocent and law-abiding citizens are punished by the state or suffer gross violations of their rights and liberty at the hands of the state. The result is what seems to be the first society in history in which elements of both anarchy and tyranny pertain at the same time and seem to be closely connected with each other and to constitute, more or less, opposite sides of the same coin.
This condition, which in some of my columns I have called “anarcho-tyranny,” is essentially a kind of Hegelian synthesis of what appear to be dialectical opposites: the combination of oppressive government power against the innocent and the law-abiding and, simultaneously, a grotesque paralysis of the ability or the will to use that power to carry out basic public duties such as protection or public safety. And, it is characteristic of anarcho-tyranny that it not only fails to punish criminals and enforce legitimate order but also criminalizes the innocent. At the same time the governor of North Carolina grotesquely fails to uphold his famous oath to protect the citizens of his state by keeping convicted felons in prison, he has no problem finding the time to organize a massive waste of his time and the taxpayers’ money to hound and humiliate a perfectly innocent citizen for the infraction of a trivial traffic law.
In fact, we criminalize the innocent all the time in the United States today—through asset seizure laws that confiscate your property even before you’re convicted of possessing illegal drugs; through mandatory brainwashing programs designed to reconstruct your mind with “sensitivity training,” “human relations,” and rehabilitation if you display politically incorrect ideas on certain occasions; through prosecuting people like Bernhard Goetz who use guns to defend themselves; and through gun control laws in general. Under anarcho-tyranny, gun control laws do not usually target criminals who use guns to commit their crimes. The usual suspects are noncriminals who own, carry, or use guns against criminals—like the Korean store owners in Los Angeles or like Mr. Goetz, who spent several months in jail after picking off the three hoodlums who were making ready to liberate him from life and limb.
Indeed, the government response to crime is by far the best illustration of anarcho-tyranny. On the one hand, police forces are better equipped, better trained, and more expensive than ever before in history. Police routinely use computers, have access to nationwide information banks, and carry weapons and communication gadgets that most tyrants of the past would drool over. Yet the police seem utterly baffled by the murder rate. None of their high-tech whiz-bang helps much to catch serious criminals after they have struck, to stop them before they strike, or to keep them off the streets after they are caught. But while the police cannot do much about murderers, rapists, and robbers, they are geniuses at nabbing less serious lawbreakers. They can crack down on tax-dodgers and speeders, jaywalkers and pornography patrons, seat belt nonbucklers and epithet-emitters, gun owners and graffiti-scratchers.
Obviously, such desperate characters are not the reason decent people are scared to walk the streets at night, and no matter how many of them you put in the pokey, civilization and the order it is based on will not survive unless you control the streets. Under anarcho-tyranny, the goal is to avoid performing such basic functions as stopping real crime and to think up purely fictitious functions that will raise revenue, enhance the power of the police or bureaucrats, and foster the illusion that the state is doing its job. The victims of these new functions and laws are precisely, otherwise, law-abiding and innocent citizens. It’s easier and more profitable to enforce the law against the marginal lawbreaker than against those habitually committed to spreading mayhem.
One example of a victim of anarcho-tyranny is a man named Keith Jacobson, an elderly farmer and school bus driver in Nebraska. Mr. Jacobson has a sexual fixation on children, and while that constitutes a sexual perversion, he says he has never satisfied his fixation by having sex with a child, and indeed prior to 1987 he had never been arrested at all. However, he does like to peruse pornography that depicts children engaged in sexual poses and activities, and when in 1987 he received in the mail some solicitations to purchase some of this smut, he ordered it. Eventually, this material arrived and he went to his local post office to pick it up. When he returned to his farm, he found two federal postal inspectors waiting for him. They promptly arrested him and charged him with violating federal statutes forbidding the purchase of child pornography through the mail, and it turned out that the material he had bought had in fact been produced by the postal service, itself, and sent through the mail by the postal service in an undercover sting operation conducted by the postal service. For some years, postal inspectors had devoted their energies to ferreting out Mr. Jacobson’s perverse habits, encouraging them, and then, finally, pouncing on him. As a result, Mr. Jacobson lost his farm to pay for his legal defense, he lost his job as a school bus driver, and he lost all his friends and standing in his small community when his sexual habits came to light. Eventually, the Supreme Court exonerated him, but in the meanwhile his life had been totally ruined.
The rationale for the harassment and entrapment of Keith Jacobson was that child pornography, illegal under federal law, is often produced in foreign countries like Denmark or Mexico and that the law cannot reach those who produce it and who often kidnap or seduce children into taking part in it. Therefore, law enforcement has to concentrate on the consumers of child pornography rather than on its producers, in order to deter the trade. This, of course, is a transparent sophism.
In my view, there is every reason for the federal government to ban the import of child pornography into the United States, to ban interstate traffic in it, and to prohibit sending it through the mail, but the target of the law should be—and originally was supposed to be—those who produce it and distribute it for profit, as well as those who kidnap, trade in, or seduce children. It is those individuals who cause the social evil of child pornography, not casual consumers of it, let alone those who buy it only because the federal government has enticed them into buying it, as Mr. Jacobson did, and if the producers are ordinarily beyond the reach of the law, it does not follow that law-abiding citizens like Jacobson should be targeted, persecuted, and ruined.
The Jacobson case is particularly important because, in a way, it was a kind of prototype for the later cases of David Koresh and Randy Weaver, and it may reflect a deliberate strategy by which admittedly bizarre people are selected for persecution. Few people can be expected to rush to the defense of a religious crackpot like Koresh, a white separatist like Weaver, or a pedophile like Jacobson when their rights are threatened. And, conservatives in particular can be expected to overlook the procedural irregularities in these cases if they disapprove of, or condemn, the substance of what the targets are doing. But, once these cases become precedents, citizens who are considerably less bizarre in their personal habits and beliefs than many conservatives will be safe for the anarcho-tyrants to hit.
Indeed, the entrapment and destruction of Keith Jacobson is typical of anarcho-tyranny. Having passed a law that is virtually unenforceable against those it was ostensibly intended to reach, government turns its efforts against those it was not intended to punish, which means the law-abiding. If you cannot or will not punish the criminal, criminalize and punish the innocent and then boast of how you are being tough on crooks. The same dynamic of anarcho-tyranny is evident in the notorious asset seizure laws. There are a number of cases on record of homeowners or owners of planes or boats who have lost their property because small amounts of drugs, often nothing more than marijuana, were found in or on them, often because an employee, guest, or family member, rather than the actual owner, had possession of the drug. These cases are bad enough in themselves, but the most notorious, which has received virtually no attention in the national press as far as I know except for a column by Paul Craig Roberts, concerns Donald Scott of Malibu. Perhaps the case is better known in California than it is in the rest of the country, but Mr. Scott’s victimization by anarcho-tyranny caused him to pay an even higher price than Randy Weaver or David Koresh or Keith Jacobson.
Mr. Scott was a millionaire who had inherited his fortune and lived in a five million dollar estate in Malibu. One night he was awakened by the sound of his front door crashing in, and, evidently thinking his house was being invaded by robbers, he got up, seized a gun, and went out to protect his life and home. Actually, he was right; his home had been invaded by robbers, in the form of a 30-man raiding party composed of Los Angeles Sheriff’s Office personnel, federal drug agents, and the California National Guard. When Mr. Scott appeared with a gun in his hand, they shot him dead in his own home. The killers claimed to have some reason to think that Mr. Scott’s wife was using drugs, though apparently no drugs were ever found. They also happened to have in their files an appraisal of Mr. Scott’s estate and notes on the value of adjacent property, and one legal expert who has examined the case believes the purpose of the whole raid was simply to seize private property for the U.S. Treasury under federal assets seizure laws on the fabricated pretext of drug use. The murderers of Mr. Scott pled self-defense and were let off.
Again, as with federal child pornography statutes, there should be no problem with laws that include as punishment for drug dealing the confiscation of property or assets. But under some of the asset seizure laws, property can be confiscated prior to conviction and often with little attention to the actual or serious guilt of the property owner, and they are virtual bottomless pits by which law enforcement agencies can essentially steal private property to bolster their own budgets. As with other anarcho-tyrannical measures, real drug dealers, who often contrive to hide their assets, are frequently not affected; the law falls mainly on law-abiding citizens.
Yet probably the most common example of anarcho-tyranny in practice are gun control laws, and as you know there is now a concerted effort across the country to abolish private gun ownership entirely. That goal used to be a kind of hidden agenda of the gun control lobby, and every nutty gun control measure that was introduced was accompanied by sneering denials that it would go any further. But in recent years the agenda has come out of the closet. Congressman Major Owens of New York actually introduced a constitutional amendment last year to repeal the Second Amendment, and before he did so, conservative columnist George Will had already endorsed its repeal; this is perhaps the first time in history that a congressman has proposed repealing part of the Bill of Rights. Mr. Owens says that the Second Amendment is “not needed” in the United States today, and Mr. Will argues that what he calls “police saturation” will provide an adequate substitute for the private security offered by guns. “Police saturation,” or as Mr. Will describes it, “a policeman on every corner,” is, of course, a euphemism for a police state, and it is entirely characteristic of Mr. Will’s brand of Fascism Properly Understood.
The fact is that the police and the criminal justice system do not offer protection, nor can they. We have too many policemen in this country already; to go back to Raleigh for a moment, where the governor is so zealous about his oath to protect the citizens, I recall that when I happened to visit the city some months ago, there had been a serious car accident in the middle of the afternoon that tied up local traffic for hours. I rode by the site of the accident around eight o’clock that night, and even though there was no congestion at all, even though the vehicles involved had long since been removed and whatever people were injured had long since been taken to the hospital, there were five police vehicles and five policemen still on the scene. It is not at all uncommon in this country to see speed traps, sobriety checks, etc., that take up the time of five or six or more policemen for several hours. In Washington, it is a regular feature of the morning rush hour from northern Virginia to see several local policemen wandering around in traffic in the middle of Route 395, just before you reach the 14th Street Bridge, for the purpose of pulling over drivers who were driving on the shoulders of the road. As long as the police can afford to assign personnel to these trivial functions or to such perennial aggravations as parking enforcement at a time when urban crime rates are higher than ever, there is no reason to talk about the need for yet more policemen, nor is there any reason to call in the National Guard, the Special Forces, or Boutros-Boutros and his Blue Helmets to do the job civilian authorities refuse to do.
In any case, the policemen we already have seem to spend an inordinate amount of their time enforcing the law against the marginal lawbreaker and avoiding enforcement against serious criminals. This became a national scandal in the Los Angeles riots when police actually arrested store owners who were carrying weapons to protect themselves against the rioters while carefully avoiding confrontations with rioters and, in at least one case, even passed by a store that was being looted.
In Virginia, we have a recent and outstanding example of anarcho-tyranny at work in Governor Douglas Wilder’s “one gun a month” law. Since last July in Virginia, it has been illegal to buy more than one handgun a month, on the reasoning, offered by the BATF, that more than 40 percent of the guns used in crimes in New York and Washington are imported from Virginia, where gun control laws are lax. The gunrunners, vows a BATF spokesman, just “fill up their trunks” with firepower and “hightail it up Interstate 95.” One hopes they do not drive on the shoulders of the road or leave their seat belts unbuckled.
What never seems to occur to any of these anarcho-tyrants is that Virginians were able to buy guns legally (and as many as they wanted) and still avoid murdering each other as much as New Yorkers and Washingtonians do. Thus, in 1989, there were about 72 murders for every 100,000 people in the District of Columbia but less than 8 per 100,000 in the whole state of Virginia. In the same year, the Big Apple took a bite out of the lives of nearly 26 people per 100,000. The point is that in Virginia people buy guns legally and do not slaughter each other with them the way they do in New York and Washington, even though both cities have strict gun control laws and Virginia had virtually none. Unable or unwilling to punish the criminals who sell guns, buy them, or use them in these metropolises, the anarcho-tyrants must therefore punish law-abiding Virginians by restricting their gun rights. Under anarcho-tyranny, government fails to enforce the laws and perform the functions it has a legitimate duty to enforce and perform, while it invents laws and functions it has no legitimate duty or valid reason to make or carry out.
While one characteristic of anarcho-tyranny is its propensity to criminalize and punish the innocent and the law-abiding while refusing to punish the criminals, another is its refusal to enforce the laws it has already enacted and to enact more laws that have no effect on real crime and that further criminalize the innocent or restrict their rights. Governor Wilder’s law shows this, and it is interesting that barely two months after the law went into effect in Virginia, the BATF announced that 40 percent of the guns now used in Washington crimes come from Maryland, so we must have a similar law there. The logical conclusion, of course, is that there should be a United Nations Convention on Handguns, under which handguns would be outlawed everywhere in the world, with international sanctions and tribunals against the provinces of the New World Order that fail to obey and with contingents of blue berets, presumably armed with handguns themselves, to enforce it. I suggest General Aidid as the commander of the force.
Colorado’s new law forbidding minors from owning guns is also a recent instance of gun control anarcho-tyranny. Passed this summer on the grounds that too many minors are killing each other with guns, the law merely imposes a five-day jail sentence on any minor who possesses a gun (except sometimes). Of course, no minor with a gun who is disposed to commit a crime with it is likely to be deterred by five days in jail; most such teenagers spend a good part of their adolescence in and out of jail. The only people who will be so deterred will be otherwise law-abiding minors who carry guns to protect themselves from their not-so-law-abiding cohorts whom the anarcho-tyrants do nothing to control.
Yet one of my favorite examples of anarcho-tyranny is the crime bill that Congress considered last year. Its most notable feature was the authorization of the death penalty for no less than 51 different crimes, so that senators could boast to their constituents of the Draconian retribution they are itching to visit upon wrongdoers. That sounds really tough, but the new capital crimes included such exotic offenses as genocide, treason, and espionage, and inflicting death for these would protect the average citizen on the street about as much as directing traffic regulates pigeon droppings. The average housewife usually is not too worried that Pol Pot or Julius Rosenberg will jump her when she walks through the supermarket parking lot at night.
Many of the other 48 offenses, for which the law would have executed you, simply protect officeholders. The bill authorized the death penalty for murdering the President, members of Congress, members of the Cabinet and the Supreme Court, court officers, and relatives of a federal official; for the killers of jurors, witnesses, crime victims, informants, foreign officials, state officials assisting federal officials; and, specifically, for the murderers of officials of the U.S. Department of Agriculture, including horse inspectors, poultry inspectors, egg inspectors, nuclear regulatory inspectors, and meat inspectors. Senators who voted for the bill do not have to worry about losing the egg-inspector vote.
It then proceeded to dispatch to the scaffold a whole penal colony of atrocity-doers: aircraft hijackers; those who commit arson on federal property; those who commit murder in the course of a violent crime, murder in the course of depriving someone of his civil rights, murder in the course of depriving someone of his religious rights, murder in the course of a kidnapping or a bank robbery, terrorist murders abroad, hostage-taking, murder for hire, murder in the course of racketeering, and murder while serving a life sentence. The latter is particularly interesting, since about the only person a lifer could murder would be either a prison guard or another prisoner. But there is no reason why a prison guard or a convict (or, for that matter, the President, a federal chicken doctor, or a visiting dogcatcher from Denmark) should enjoy what amounts to more protection of the law than a gas station attendant.
The crime bill also offered a generous serving of gun control chocolate sauce and the usual swag for local and state police as well as some $300 million for “drug emergency areas,” also known as “cities,” that just can’t say “no” to federal boodle. Then it gets back to more meaningless death penalties: death for anybody who commits a crime with a firearm if the weapon has moved across state or national boundaries. Death again for anybody who intentionally kills someone in the District of Columbia in a drug-related crime. And death once more for the much-dreaded “drug kingpins,” laboriously defined in the bill as those who have had at least three prior felony convictions with minimum prison sentences of at least 20 years each and who are operating drug enterprises with at least five employees and grossing $10 million a year. Whether convicts who meet this otiose definition are any more common than spies, traitors, and genocide-committers is not clear, but my guess is that they are virtually a legal fiction never heard of outside of Miami Vice reruns.
Death, death, death, death, cried the senators as they packed the bill off to the House. You would think this was the most bloodthirsty crowd of lawmakers since Madame Defarge knitted socks in front of the guillotine. But before you come to such a conclusion, there is one little secret you ought to know: not since 1963 has the federal government executed anybody, nor does it have any facilities for carrying out an execution. For all the blood poured forth on the Senate floor in and over this bill and its grisly provisions, it was a fair bet that not a single person would ever have gone to the gallows under it. That is because enforcing the death penalty has nothing to do with passing more laws to buck up those already on the books that are not enforced anyway, but instead depends on whether those who pass and execute the laws are serious about justice. In any event, the bill died in conference, though its descendant stalks the Congress today in President Clinton’s “policeman on every corner” bill, this time with no less than 64 new capital offenses. Who knows what they are? Who cares, since the lawmakers who concocted them have no intention of enforcing them anyway. My guess is that the mega-death penalty bill last year was never intended to pass, that it was just grandstanding for the senators, who intended to execute the bill itself before any real murderer was executed under its stupid and redundant provisions.
Yet one interesting thing about the bill is that it shows how conservatives in Congress have totally abandoned the principle of federalism. One congressional staffer in a Republican office told me that the bill’s death penalty provisions were intended to enforce the death penalty in states that “refused” to enact it themselves—in other words, to sneak around the principle of federalism and states’ rights and to force a criminal statute down the throats of unwilling states. I believe strongly in the death penalty for a number of criminal offenses, and I believe every state ought to pass it and enforce it effectively, but under no circumstances should the federal government be able to force or dragoon any state into adopting the death penalty or any other criminal statute it does not want or believe in. Obviously, it was mainly conservatives who were pushing the mega-death bill, so let us endure no more sermons from these Solons about “judicial activism” or other violations of federalism when those violations tread on local interests that are politically important to the lawmakers. Having surrendered the federalist and states’ rights principles, they cannot expect those principles to be respected by others who have more uses for the federal leviathan than turning it into an oversized gas chamber.
There are several reasons why anarcho-tyranny flourishes. In the first place, it is obviously an easy way for government bureaucrats and lawmakers to enhance their own power and the public funds at their disposal by playing on legitimate and wellfounded fears of citizens over crime. It might seem that it would be just as easy for anarcho-tyrants to actually do something about crime instead of rehearsing all the pretenses of doing something about it. But the fact is that there is almost nothing the government today can do about crime. The essential reason for this is that, since the promulgation of the Incorporation Doctrine by the Supreme Court and the ensuing Warren revolution in criminal law, the control of the criminal justice system has been removed from the control of lawmakers and elected officials as well as from law enforcement and is now almost entirely subordinate to the judicial system. Thus, there can be no local politician who wins election by promising and carrying out an effective program of crime-fighting because any effective laws or punishments he might enact will be dependent on the consent of the courts. Since law enforcement remains primarily a local and state function but is effectively under the control of federal courts, local law-and-order leaders can do nothing effective and have to make do with anarcho-tyrannical applesauce.
While crime and public safety remain important and legitimate concerns of voters, the response of politicians and police almost has to be to promise the false and dangerous solutions of anarcho-tyranny; to change subtly the definition of crime by expanding it to include the innocent and the law-abiding, and to avoid any serious challenge to real criminals. And institutionalizing anarcho-tyrannical functions in such agencies as the BATF merely creates incentives for its bureaucrats to pursue the kind of dangerous and useless measures the bureau has become notorious for. Under anarcho-tyranny, the state creates a problem (which sometimes actually has some connection to reality), declares an emergency or crisis—the drug war, drug emergency areas, the carjacking crisis, Islamic fundamentalism—and then exploits that problem as an instrument by which it continues to enhance its power, though neither the fake problem it exploits nor the real problem that exists is affected. The anarchy that anarcho-tyranny breeds thus serves as the rationale for the tyranny it builds, and the dynamic of anarcho-tyranny is essentially the same “ratchet effect” that Robert Higgs identifies as the principal source of Big Government in the 20th century.
But there is also another reason why anarcho-tyranny flourishes. Throughout this century, in tandem with the emergence of the leviathan state, there has occurred a managed pacification and manipulation of the citizens, with the result that Americans are increasingly habituated to an entirely passive role in government, economy, culture, and now even basic social functions such as childrearing and health care. This process of pacification is closely related to the managerial revolution in the United States and the emergence of centralized, technically skilled elites that specialize in the usurpation of previously autonomous social functions. Hence, just as Americans in the mass-managerial regime are dependent on mass corporations, offices, and factories for their livelihoods, just as they are dependent on