Effect of the national security paradigm on criminal law.

• Author: Stevenson, Dru

INTRODUCTION

Criminal law goes through phases. The criminal justice system in the common law era evolved from medieval law emphasizing retribution and moral culpability, with a list of felonies that were incidents of exploitative and opportunistic behavior. (1) Affirmative defenses and mitigating factors from this epoch were cases of moral messiness that shrouded the defendant's internal decision process, injecting hesitancy into condemnation. (2) The punishment for most felonies, bluntly stated, was to dispatch the defendant to Hell, cleansing the wicked from the land and instructing the crowds who witnessed the execution about the seriousness of wrongdoing. This is not to say the system was wrong or brutal, even though this description may grate on modem sentiments. Actually, most people were able to avoid becoming criminal defendants, and most people avoided becoming the victims of serious crimes.

The last century saw a fundamental shift in our criminal laws and available defenses due to the advent of "vice" laws, (3) such as the Harrison Act (narcotics), Prohibition (alcohol), the Mann Act (4) (sex trafficking), Comstock Laws (5) (obscenity and contraceptives), and the contemporaneous federalization of criminal law. (6) Vice laws save people from themselves. (7) The criminal law began treating addictions as a form of enslavement. (8) In terms of underlying values, retribution yielded to rehabilitation and then to deterrence, (9) embodied as the goal of the Model Penal Code. (10) Rehabilitation and deterrence share a common utilitarian goal of making individuals behave better. (11) Incarceration replaced corporal and capital punishment for all felonies besides murder. (12) This second phase saw the advent of the entrapment defense and exclusionary rules, which balanced the individual's rights, expectations, and behavior against the rights, expectations, and behavior of police officers. (13) Exclusionary rules and the entrapment defense were true innovations, unknown in common law England. "Admissibility" became a central component of the defense lawyer's arsenal; courts found it contradictory to trample individual expectations of privacy in the process of protecting people from enslaving themselves to addictions. This period also saw the universal codification of penal laws and sentencing rules. (14) The goal of shaping everyone's behavior, unlike the common law's pursuit of defining evil, necessitated a massive proliferation of delineated felonies, (15) prohibiting harmful conduct in as many situations as possible. Criminal law's response to organized crime in this period (culminating in the RICO statute (16)) targeted conspiracies to exploit people's weaknesses and addictions. (17) Clarity, precision, and predictability about the rules and punishments were important for fostering obedience.

The last three or four decades have brought the gradual advent of a new phase in which the national security emphasis permeates our entire criminal law framework. The national security paradigm is affecting our underlying assumptions about the nature of culpability and the goals of law enforcement, the way in which we draft and interpret penal code sections or criminal statutes, our approach to affirmative defenses, and the strategies or techniques most favored by enforcement officers and prosecutors. (18) Protecting the American way of life from terrorism, natural disasters, and other disturbances or uncertainties has become the overarching goal. Now crime is disruption, rather than sin (as in the common law era), or degradation (as in the last century). As Professor Kent Roach observed, "New anti-terrorism laws ... incorporate a more modern approach that sees crime as one of the many risks of modem society." (19)

Trends in this new era include militarization of the police, (20) obsession with gathering information and intelligence, (21) and collaboration between law enforcement agencies, (22) even across national borders* A greater portion of law enforcement funding now goes toward anti-terrorism activities rather than previous allocations. Funding pushes priorities at the same time that it incentivizes agency managers to recharacterize unfunded (but needed) areas as anti-terrorist or related to national security. (23)

We increasingly view criminal activity in terms of group associations, with those associations balanced against collective interests of society. (24) Commonplace crimes such as movie piracy, (25) drug trafficking, (26) money laundering, (27) counterfeiting, (28) and carjacking now have associations with terrorism. (29) The Executive Director of the U.N. Office on Drugs and Crime observed in 2002 "public security is now frequently perceived as the primary, or at least the most effective, way of solving the drug problem--certainly the one that delivers quicker results than public health programmes, with greater media attention than prevention campaigns." (30) In 2006, the United Nations adopted yet another anti-terrorism resolution, the Global Counter-Terrorism Strategy, urging member states to combat "crimes that might be connected with terrorism," including all drug crimes, weapons violations, and smuggling of "any potentially deadly material." (31)

This is not another essay about how 9/11 changed everything or dented our democratic values. (32) Modern legal reactions to terrorism actually began in the 1970s, after a wave of domestic hijackings and bombings. (33) The 9/11 terrorist attacks continued this trend, with more thrust given the unprecedented scale of the harm. (34) Nonviolent disasters, such as Hurricane Katrina, have also helped to recast police work as disaster response and preparedness; (35) even the collapse of Enron has pushed criminal law in the direction of preventing harm rather than responding to it. Thus, while 9/11 has been a major factor in the shift toward a national security paradigm in criminal law, it has not been the only factor.

Shifts in a legal culture are not instantaneous, or even sudden, events. (36) Changes come incrementally, and periods or epochs overlap at the margins. Jeremy Bentham heralded the codification of criminal laws and the ascendancy of utilitarianism, (37) the end of the common law, generations before Oliver Wendell Holmes instructively wrote The Common Law. The "material support of terrorism" statute (18 U.S.C. [section] 2339B), now the cornerstone of antiterrorism prosecutions, predated 9/11 by five years, and several United Nations resolutions pushing every country to pass anti-terrorist legislation had predated that. (38) The Patriot Act was not just a lurching reaction to the events of a single day, but rather a continued trajectory that started years earlier; (39) some of its more controversial provisions reflected proposals that President Clinton had made. (40)

In the years after 9/11, several commentators warned that the legal backlash to the event may diminish civil liberties over time. (41) Public outrage and panic, the argument goes, could result in more aggressive police tactics used against everyone, (42) more court decisions upholding police aggression, (43) more legislation authorizing panoptic surveillance, (44) suppression of political dissent, and racial or religious persecution in the guise of security profiling. Many saw all these problems, at least in nascent form, in the Patriot Act. (45) Carried to an extreme, the ultimate fear was domestic totalitarianism, an Orwellian police state in which Americans forfeit their freedoms and tyrannical politicians seize the opportunity to impose martial law. (46) Even if these predictions turned out to be hyperbole, the essential concern remains: that antiterrorism measures might escalate to the point of government overreaching.

At the same time, some called for more reliance on traditional criminal law to combat terrorism in place of the usual toolbox of national defense: military force, economic sanctions, and international diplomacy. The argument was that our criminal justice system was more effective and more just, less prone to ad hoc rationalizations or expediencies, and would avert the collateral damage and unseemly alliances that attend military ventures. (47) Some suggested reforming criminal law to better handle terrorists, (48) while others argued that we could use our system in its present form. (49)

In other words, this is not the first article to discuss a convergence of domestic criminal law and national defense policy. This may be the first, however, to describe an all-encompassing paradigm shift, rather than focusing on a particular law, case, or police practice. It may also be the first to take a decidedly neutral position on whether the paradigm shift is good or bad. Viewed as a Kuhnian revolution in the law, (50) the national defense phase approach to criminal law is both crisis-triggered and a product of changing cultural norms, shared national values, electioneering dynamics, information access, and the new technologies available to both criminals and law enforcement agencies. (51)

Anti-terrorism laws, tactics, and prosecutions are relatively few in number, and are still a negligible percentage of our overall criminal docket or police work. (52) The more blunted changes that anti-terrorism measures bring to everything else reach further.

Anti-terrorism measures can easily infect contiguous components of criminal law, creating a large spillover effect. (53) Cops on the beat who undergo a dozen sessions of special training in anti-terrorism tactics, whether in detection skills, prevention strategies, or disaster response, inevitably carry that experience into their other police work. (54) Similarly, in the legislature, lawmaking is an evolutionary process, in which each session bears the influence of previous sessions and the existing corpus of enactments. (55) The session after the one in which Congress enacted anti-terror laws continues to some extent on a...