Wednesday, 25 June 2014



In the last twenty years there have been a whole set of developments in the Anglo nations (the U.K., Canada, United States, New Zealand and Australia) which adversely or could adversely affect rights and liberties which have been both long held and proudly proclaimed.  These developments include over-criminalization, growth of regulatory mazes, micro-management of interpersonal relationships, invasive surveillance technology, statutory abridgments of civil legal protections, privatized police forces and prisons, new ways to punish people and zero tolerance policies in schools and elsewhere. They occur at various levels and superficially appear unconnected and uncoordinated.   Perhaps for these reasons we have not really grasped the extent to which our freedoms are being eroded. 

We look for snapshots of this dystopia in the works of George Orwell or Franz Kafka.  And so the terms “Orwellian” and “Kafkaesque” are often applied to what we observe in modern society.  certainly there are comparisons to what people experience in dealing with bureaucratic authority to the experiences of Josef K. in the Trial.   There is a Kafkaesque edge to many of the U.S. prosecutions that are reviewed by Harvey Silverglate in Three Felonies a Day: How the Feds Target the Innocent and by Paul Roberts and Lawrence Stratton in The Tyranny of Good Intentions.

In many ways, however, the new totalitarianism is not like the totalitarianism the world has known in the past. It is not as visibly apparent; it has not arrived in one fell swoop.  Most significantly it is not directly experienced by the average person in his or her daily life.  It is almost a reverse lottery where (at the present time) only a small percentage of people like Abner Schoenwetter (six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than cardboard) end up in a nightmarish entanglement with the legal system.

Many people do not see what is happening because it is a velvet totalitarianism and it has been has making an incremental step by step advance over the last thirty years.  There is no one person, no single political group, no secret society designing the new totalitarianism yet it is ever evolving on a number of different fronts.

I identify four horsemen of totalitarianism.  The first horseman is represented by an enormous expansion of the criminal sphere.  All sorts of acts have been partially or fully criminalized.  There are new environmental crimes, new health and safety crimes and a panoply of new crimes in the sphere of interpersonal relationships.  Behaviours, which were not considered criminal, such as youthful exuberance and poor social conduct, are now brought into the criminal net.

The second horseman is surveillance.  The information gathering abilities of the modern state and large private corporations are immense.  It is now recognized that both governments and corporations gather enormous amounts of information on people through their behind-the-scene access to internet activities. There are also many other surveillance instruments including cameras on every street corner, cameras attached to police vehicles, drones in the sky, virtually unrestricted wire tapping and ubiquitous tracking devices.  The modern state is also putting together a citizen spy system - using nurses and doctors, social workers, teachers, tax collectors, etc. to report on individuals who are allegedly engaging in bullying, tax evasion and other unpopular acts.

The third horseman is the assault on those legal protections that developed over the centuries precisely to protect freedoms and civil rights.  These traditional legal rights have had identifying labels such as habeas corpus, rule against double jeopardy, right to remain silent, privilege against self-incrimination, mens rea, open courts, right to legal representation, the demarcation between the civil and the criminal and proof beyond a reasonable doubt.  Governments have used the cover of fighting terrorists and criminal gangs to severely abridge all of these freedom protecting legal doctrines.

A big part of the undermining of civil rights results from the way the modern state grounds down its victims with publicly financed litigation.  The conduct of the civil forfeiture process in British Columbia is illustrative of the state “winning” through relentless litigation.  The government side is not constricted by costs; on the other hand, the forfeiture target will invariably be forced to pay thousands of dollars in legal fees to defend his or her property.  The result is that the forfeiture target more often than not makes the pragmatic choice and gives up.  The B.C. Civil Forfeiture Office is fully aware of its power in this respect and in fact does not hesitate to bring it repeatedly to the attention of the target.

There has been a relentless growth in a new kind of adjudication system - set deeply in the bureaucracy.  An example is Workers Comp tribunals.  These new tribunals have an irresistible proclivity to go private - to become quasi-secret tribunals.  This is often justified for superficially good reasons - preserving privacy of participants.

The fourth horseman is the punishment regime.  Starting in the 1980's the U.S. went crazy with handing out lengthy terms of imprisonment.  Three strikes and you are out and you get twenty year for stealing a loaf of bread.  People receive prison sentences which will lock them up for half their life because they had a few marijuana plants.  

It is not only a matter of imprisonment.  In the U.S. in particular there are numerous collateral consequences which accompany incarceration - civil penalties, which, unlike fines, prison time, or probation, are not specified in the criminal law and are not imposed during the sentencing of the convicted person.  These collateral punishments are frequently post-incarceration.  Then there is civil forfeiture which does not even require a conviction.  Civil forfeiture of a personal residence or an expensive vehicle is an out of proportion fine which for many people is a life disaster - they would rather have spent a few months in prison.  Then there are the other social control punishments - expulsion from a school or university or the loss of a driver’s license.  The Greater State is even re-legitimizing long-term ostracism.

Velvet totalitarianism seems to come together most completely with children and old people.  Under the rubric of safety concerns children are not allowed to play with any form of a ball on a school ground and there are absurdities such as no touch rules for five year olds.  Kids are expelled from school because they draw a picture of a handgun or have a plastic knife in their backpack.  In the U.K. boisterous teenage behaviour is labelled as anti-social.  At the other end of life old people are institutionalized against their will - ostensibly in order to protect them.

The truly worrisome event will be when the Four Horsemen get together. This will happen when the instruments of surveillance - whether it is spy cameras, citizen spies or internet snooping is used in a coordinated manner to keep tabs on all aspects of an individual activities including his or her  interpersonal relationships.  The charges that emerge out of this giant spy system will be dealt with by bureaucrat cum police, bureaucrat, policeman and judge all rolled up into one, 

Does there come a point when the combined effect of the four horsemen of totalitarianism results in a very different type of society?  A New Society that is arriving by stealth.  

1 comment:

  1. This is very alarmist and your title is clickbait material, minus the clicks.