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Policing possession The war on crime and the end of criminal law


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									Policing possession: The war on crime and the end of
criminal law
Dubber, Markus . Journal of Criminal Law & Criminology 91. 4 (Summer 2001): 829-996.
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The war on crime has been the dominant ideology of American criminal law for the past three
decades. Dubber examines the inner workings of this remarkable successful, yet still little
understood, strategy of social control. Particular attention is paid to the role of victimless
crimes, and possession in particular, as sweep offenses to incapacitate dangerous
undesirables. Easy to detect and to prove, yet far more potent and less vulnerable to
constitutional scrutiny, possession emerges as the new and improved vagrancy, a modern
policing tool for a modern police regime, the war on victimless crime.

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The war on crimehas been thedominant ideology ofAmerican criminal lawfor thepast three
decades. This paper examines theinner workings ofthis remarkably successful, yet still little
understood, strategy ofsocial control. Particular attention will be paid to therole ofvictimless
crimes, and possessionin particular, as sweep offenses to incapacitate dangerous undesirables.
Easy to detect and to prove, yet far more potent and less vulnerable to constitutional scrutiny,
possessionemerges as thenew and improved vagrancy, a modern policingtool for a modern
police regime, the war onvictimless crime.


For some thirty years, American criminal lawhas waged a war on crime. From Robert
Kennedy's war onorganized crime1 and Lyndon Johnson's war onpoverty, crimeand
disorder,2 to Richard Nixon's war of"thepeace forces" against "the criminalforces,"
"theenemy within,"3 the war on crimeevolved into an extended comprehensive police action
to exterminate crimeby incapacitating criminals.4 As warsgo, the crime warhas been unusual,
and unusually successful, in that its casualties have also been its success stories; it has
managed to incapacitate millions, most through imprisonment, some through death, most
rarily, some permanently. In 1970, theAmerican prison and jail population stood at around
300,000. Today, it tops two million with another four million or so under various forms
ofnoncarceral control, including parole and probation, adding up to over six million people,
or three percent ofAmerican adults, under state penal control.5

The war on crimehas been fought onmany fronts, and with many weapons. Most
dramatically, it has brought us theresurgence ofcapital punishment as a measure for
thepermanent incapacitation ofviolent predators. Less dramatically, but more pervasively,
Draconian lawscombating theplague ofviolent recidivism have pursued a similar strategy

As a war onviolent criminals, the crime warhas attracted a great deal ofattention. Over
decades, themedia have eagerly recorded its campaigns and initiatives, kicked off with great
fanfare by generations oflegislators (and would-be legislators) anxious to incorporate
thetough-on-crimeplank into their political platform. The crime war's failures have made for
particularly and persistently good news, as criminalviolence continued even in theface ofan
all-out campaign to eradicate it. These failures led not to calls for theabandonment of
thecampaign, but for its expansion and more rigorous prosecution.

To understand the war on crime, however, one must go beneath thesensational and well-
covered surface of crimes ofviolence suffered by innocent citizens at thehands ofmurderers,
rapists, robbers, kidnappers, and other assorted miscreants. There, in themurky depths of
criminal lawin action, one finds theeveryday business of the war on crime: thequiet and
efficient disposal ofmillions ofdangerous undesirables for offenses with no human victim
whatsoever. To analyze this disposal regime is one of themain goals ofthis article.

The war on crime, though ostensibly waged onbehalf of crimevictims, has been first and
foremost a war onvictimless crime. Theparadigmatic crime of the war on crimeis not murder,
but possession; its sanction not punishment, but forfeiture; its process not thejury trial, but
plea bargaining; its mode ofdisposition not conviction, but commitment; and its typical
sentencing factor not victim impact, but dangerousness as 44 evinced" by a criminalrecord.
Our prisons and jails (which we persist in calling "correctional" institutions) are filled not
with two million murderers, nor are theadditional four million probationers and parolees
superpredators. No, our comprehensive effort to control thedangerous by any means
necessary reaches "possessors" along with "distributors," "manufacturers," "importers," and
other transgressors caught in an ever wider and ever finer web ofstate norms designed for one
purpose: to police human threats.

Policinghuman threats is different from punishing persons. A police regime doesn't punish. It
seeks to eliminate threats if possible, and to minimize them if necessary. Instead ofpunishing,
a police regime disposes. It resembles environmental regulations ofhazardous waste more
than it does the criminal law ofpunishment.7

In a sense, thecurrent regime ofpenal police marks the end of criminal lawas we know it. It's
no more about crimesthan it is about law, as these concepts have come to be understood.
Crimes, as serious violations ofanother's rights, are ofincidental significance to a system
ofthreat control. By thetime a crimehas been committed, thesystem ofthreat identification and
elimination has failed. Law, as a state run system ofinterpersonal conflict resolution, is
likewise irrelevant. Persons matter neither as thesource, nor as thetarget, ofthreats. Penal
police is a matter between thestate and threats.8
A penal police regime may look like traditional criminal law. But these looks are deceiving.
A crimeconsists no longer in theinfliction ofharm, but in thethreat ofharm. Harm itself turns
out to be thethreat ofharm. So to punish crimemeans to eliminate-or at least minimize-
thethreat of thethreat ofharm.

Theeffort to disguise itself as bread-and-butter criminal lawis an important component ofa
modern police regime.9 Thecamouflage is crucial to its success because non-negligible public
resistance would interfere with thestate's effort to eliminate as many threats as efficiently and
permanently as possible. It's therefore in theinterest ofa police regime both to retain traces
oftraditional criminal lawand to infiltrate traditional criminal lawby manipulating its
established doctrines, rather than to do away with it altogether.

This article does two things. First, it sketches theoutlines of thepolice regime that has
hollowed out American criminal lawin thename of the war on crime. Second, it illustrates
how thepolice regime has manipulated familiar doctrines-like actus reus and mens rea-to
reduce traditional criminal lawto ceremonial significance.

To illustrate theinner workings of the war on crime, I will carefully analyze thetheory and
practice of possessionoffenses, thenew paradigm of criminal lawas threat police.
Possessionoffenses have not attracted much attention. Yet they are eve

rywhere in modern American criminal law, on thebooks and in action. They fill our statute
books, our arrest statistics, and, eventually, our prisons. By last count, New York
lawrecognized no fewer than 153 possessionoffenses; one in every five prison or jail
sentences handed out by New York courts in 1998 was imposed for a possessionoffense.11
That same year, possessionoffenses accounted for over 100,000 arrests in New York State,
while drug possessionoffenses alone resulted in over 1.2 million arrests nationwide.12

Thedominant role of possessionoffenses in the war on crimeis also reflected in the
criminaljurisprudence of theU.S. Supreme Court. They are thecommon thread that connects
theCourt's sprawling and discombobulated criminalprocedure jurisprudence of thepast thirty
years. As we will see, virtually every major search and seizure case before theCourt, from
1968's Terry v. Ohio" (which relaxed Fourth Amendment requirements for so-called Terry
stops and frisks) to last term's Illinois v. Wardlow 14 (which relaxed Terry's relaxed
requirements in "high crimeareas"), involved a possessionoffense ofone kind or another, in
one way or another.

Possessionoffenses also figure prominently in scores ofSupreme Court opinions
onsubstantive criminal law. What do thedefendants in thefollowing Supreme Court cases
have in common: Pinkerton v. United States (which gave theinfamous Pinkerton conspiracy
rule its name),' United States v. Bass (theCourt's leading lenity case),16 Stone v. Powell (one
of theCourt's key ha

beas corpus cases),17 McMillan v. Pennsylvania (thecase that laid thefoundation for one of
thekey doctrinal strategies of the war on crime, theshifting ofproof elements from theguilt
phase to thesentencing hearing, and therefore from thejury to thejudge),18 Harmelin v.
Michigan (one of theCourt's leading cases on theprinciple ofproportionate punishment),19
and Lopez v. United States (theCourt's unanticipated 1995 attack onfederal commerce clause
jurisdiction)20? They were all convicted of possessionoffenses. And, last but not least, there's
Aprendi v. New Jersey, last year's big hate crimescase. Charles Apprendi had fired several
rifle shots into thehome ofa black family who lived in his otherwise all-white neighborhood.
What was Apprendi sentenced for? Three counts of possession.21

So broad is thereach of possessionoffenses, and so easy are they to detect and then to prove,
that possessionhas replaced vagrancy as thesweep offense ofchoice. Unlike vagrancy,
however, possessionoffenses promise more than a slap on thewrist.2p Backed by a wide
range ofpenalties, they can remove undesirables for extended periods oftime, even for life.
Also unlike vagrancy, possessionoffenses so far have been insulated against constitutional
attack, even though they too break virtually every lawin thebook ofcherished criminal

To better understand theworkings of policingthrough possessionand of the crime warin
general, this article develops a kind ofphenomenology of possession. We will come to
appreciate themany and complex uses of possessionas a policingtool, some direct, others
indirect, some foundational, others supplemental. And we will see how possessionhas
managed to escape theserious scrutiny ofcourts and commentators.

Like its prototypical policingtool, the war on crimehas attracted little scholarly attention, at
least as thecomprehensive penal regime that it is.23 Much has been written about the war

ondrugs. Thedrug warcertainly has been an important part of the war on crime, but it's a
mistake to conflate thetwo. The war on crimeis a general strategy ofstate governance that
uses various tools to achieve its goal ofeliminating threats, above all threats to thestate itself.
The war ondrugs is but one prong in the war on crime's widespread assault onanyone and
anything thestate perceives as a threat. To treat the war on crimeas synonymous with the war
ondrugs is to underestimate thesignificance of the war on crimeas a phenomenon

Only by widening one's focus ofinquiry from the war ondrugs to the war on crimedoes a
comprehensive strategy ofgovernance like possessionemerge. While drug possessionis a
popular and extremely powerful policingtool, other possessionoffenses also make significant
contributions to the crime wareffort. Terry and Wardlow, for example, were gun
possessioncases; so was Aprendi. Themost recent national effort to incapacitate human
hazards, "Project Exile," likewise employs tough federal statutes criminalizing the possession
ofguns by felonsand during a violent or drug-related crime. 24 And as we will see, other
possessionoffenses, such as possession ofstolen property, come in handy as well when it
comes to neutralizing dangerous individuals.

We desperately need a detailed account of the war on crime. Without understanding how it
came about, how it works, and what it has accomplished, we cannot hope to move beyond it.
But move beyond it we must, as thecrisis of crimethat triggered the war on crimealready has
begun to subside.25 The crime warwill go theway of crimehysteria.

This article doesn't pretend to fill this gap. It does hope to lay thefoundation for future work
on the war on crimeby identifying it as a phenomenon, and an object ofstudy, in thefirst
place. Given theenormous, and largely hidden, changes the war on crimehas made in
American criminal law, it makes no
sense to go onwith business as usual. Before we can go back to discussing "American
criminal law" and its principles, we need to figure out what's left ofit after decades of the war
on crime.

Rebuilding American criminal law, however, isn't simply a matter ofundoing thedamage
caused by the war on crime. The war on crimecould not have succeeded as easily as it did, if
it hadn't found fertile soil in thereigning orthodoxy ofAmerican criminal law: treatmentism.
All the war on crimehad to do was flip over thetreatmentist coin from its benign rehabilitative
side to its unsavory incapacitative side.26 It stands as a powerful reminder of
theuncomfortable fact that treatmentism, once celebrated as theprogressive reform of
theatavistic practice ofpunishment, always allowed for incapacitative "treatment" for
incorrigible criminaltypes.

The war on crimeonce and for all dashed thenaive hope that theincapacitative arm
oftreatmentism would simply whither away as criminalpolicy became increasingly
enlightened. When push came to shove, it was therehabilitative wing oftreatmentism that
buckled and eventually broke under thepressure ofa crisis of crime, where it mattered not
whether thecrisis was real, imagined, or even artificially generated for political gain. For
thevictims of the war on crime, it was real enough.

What's needed therefore is a fundamental reassessment, and recreation, of thebasic principles
ofAmerican criminal law. Ultimately, it's to this larger enterprise that this article hopes to
make a contribution.

In Part II, I begin by laying out three of thebasic characteristics of the war on crimeas a
system ofcontrolling threats, rather than ofpunishing persons. The war on crimeis preventive
in that it focuses on thethreat, rather than theoccurrence, or harm. It's communitarian in that it
seeks to eliminate threats not to persons, but to communities ofone sort or another. And it's
authoritarian insofar as thecommunity it protects against outside threats ultimately turns out
to be thestate.

Part III then presents thephenomenology of possessionas the crime war's penal policingtool
ofchoice. Through theanalysis ofstatutes, doctrine, Supreme Court jurisprudence, and
statistics, we see just how and why possessionhas proved uniquely useful in theidentification
and incapacitation of

criminalthreats, and has emerged as thenew and improved vagrancy.

In Part IV, this in-depth analysis of possessionis placed within thebroader context of the war
on crimeas state nuisance control. Here we see how thestate depersonalizes criminal lawby
turning to crimes(both victim- and offender-less) to maintain its authority in thename
ofconveniently vague concepts such as "public welfare" or "social interests." The war on
crime, in the end, reveals itself not as an aberration from theprincipled path ofAnglo-
American criminal law, but as theculmination of theprogressive project to reform thebarbaric
practice ofpunishment in light ofill-considered social science. This project can be traced back
to theearly decades ofthis century and found its most influential manifestation in theModel
Penal Code.

Thearticle concludes with a call for subjecting thedoctrines ofAmerican criminal lawto
systematic scrutiny in light offundamental principles oflegitimacy. To reconstruct American
criminal lawafter its decimation in the war on crime, we must base its doctrines onfirmer
ground than thetraditions of theEnglish common lawor thedisappointing discoveries
ofpenological science. A principled system of criminal lawcan survive in theface ofa social
phenomenon as powerful and destructive as a "war on crime" only if it is in fact principled,
i.e., if it derives from-and can be shown to derive from-a set ofbasic and universally
recognized principles oflegitimacy.


Penal police is about theelimination, or at least theminimization, ofthreats. But threats to
what, or whom? This question is rarely posed, not to mention answered. In an important
sense, posing it already is to misunderstand thepoint ofpenal police. If you need to ask, you
don't need to know; if you don't feel threatened by something or someone, you may well be a
threat yourself. Theneed to police threats requires no justification. And threats are, by their
very nature, vague. A threat is theunfulfilled risk that something bad may happen. What that
something might be, or how likely it is that it will come about, or that you may suffer from it,
remains unclear. And that's a good thing, for thevagueness ofthreats equips their eliminators
and minimizers-thestate through its representatives in thefield-with thenecessary flexibility to
make those split-second decisions about what or who is or isn't a threat, that executive
discretion so crucial to effective lawenforcement, or rather threat police.

Still, to get at thestructure ofthis deliberately unstructured phenomenon ofpenal police, we
need to ask this question, however inappropriate it might seem: what or who is being
threatened, exactly, by thethreats that penal police seeks to eliminate? If nothing else,
pondering this question is convenient for our expository purposes. It turns out that thepolice
regime established during the war on crimehas three general functions, which roughly
correspond to three objects of thethreat it seeks to eliminate-or, in other words, to three
possible answers to our question.

On thepolitical surface, the war on crimeaims to prevent violent interpersonal crime.
Therelevant threat here is to potential victims ofinterpersonal crime, i.e., every person. This is
thepreventive function.

If we dig a little deeper-and turn to sociology for help-we find another function, related to
prevention, but distinct from it. This one might be called thecommunitarian function.27
What's threatened here is not injury to particular victims. Instead, thevictim is thecommunity
itself. Theidentification and incapacitation ofdangerous deviants thus serves to maintain
thecommunity's existence, not by preventing future offenses, but by redefining thecommunity
in stark contradistinction to thedeviant.

At thevery bottom, however, we find not thecommunity, but thestate, as theultimate object of
the criminalthreat. Theauthoritarian function of thepolice regime is theenforcement
ofobedience to state commands and theassertion of thestate's authority as thesole and proper
guardian of thecommon good. Unlike theprevious two functions, authoritarianism has no
interest in interpersonal crime, at least not for its own sake. Authoritarian policingpursues
violations ofstate issued commands as such. It prosecutes victimless crimesnot for any
indirect effect on thesuppression of the crimesthat matter, i.e., victimful crimes, and crimes
ofinterpersonal violence in particular. In fact, under authoritarian policing, what was
is now victimless, and what was victimless is now victimful. Authoritarian policingtakes so-
called victimless crimespersonally, very personally.


The crime warwears crimeprevention onits sleeve.28 By "subject[ing] to public control
persons whose conduct indicates that they are disposed to commit crimes,"29 we also
incapacitate those predisposed to commit violent crimes. Here the war on crimeis fueled by
images of therelatives ofhorrific crimescalling for swift and harsh punishment of"their"
offender. Apart from living out vengeance fantasies borne of thepowerlessness inherent in
victimhood, these measures are said to prevent future violent crimeby taking
criminalpredators off thestreet.30

Thepreventive aspect of the war on crimeis theone most closely related to therights
ofpersonal victims. In this preventive light, the war on crimesubjects thedangerous classes to
police supervision in order to prevent murders. Gun possessionis criminalized to avoid "their
potential harmful use" in crimes ofinterpersonal violence.31 Similarly, gun possessionis
declared an inherently violent felony because of the"use or risk ofviolence" resulting from its
"categorical nature."32 And mandatory life imprisonment for simple drug possessionis
upheld because "(1) [a] drug user may commit crimebecause ofdrug-induced changes in
physiological functions, cognitive ability, and mood; (2) [a] drug user may commit crimein
order to obtain money to buy drugs; and (3) [a] violent crimemay occur as part of thedrug
business or culture."33

Thesuccess ofan incapacitationist regime in thename ofprevention will depend onhow quickly
it can intervene once dangerous deviance is diagnosed. Eager to eradicate threats, this regime
will always feel thepressure to intervene at theearli

est possible moment, without awaiting themanifestation of thethreat in theform ofa
criminalact. And thepressure will increase with every failure to incapacitate, with every "false
negafive," in thewords ofincapacitationist criminology, which came to prominence in
the1970s and 80s.34 Thegoal ofnipping every potential threat in thebud, combined with
theimpossibility ofits achievement, sets in motion a continuing expansion ofpreventive
measures, an infinite regress along thecausal chain toward theorigin ofthreats, theheart

This expansion of thepreventive police net proceeds along two lines, one focused on
theoffense, theother on theoffender. On theabstract level ofoffense definitions and theories of
criminalliability, incapacitation in thename ofprevention will tend to expand thenumber and
reach ofoffenses thecommission ofwhich triggers a diagnosis ofdangerousness, and therefore
police control. To return to theexample of possessionoffenses, such a regime will find it
expedient to criminalize themere possession ofburglary tools or, more broadly,
of"instruments of crime,"35 absent any evidence ofuse that would amount to even a
preparation, which traditionally has remained beyond thereach of criminal law, never mind
themore extensive use, coupled with criminalpurpose, ordinarily required for conviction

Alternatively, instead ofcriminalizing possessionoutright, such a regime might establish a
host ofpresumptions emanating backwards and forwards in time from a finding of possession,
including a presumption ofillegal manufacture or importation (on theretrospective end of
thespectrum), and ofillegal use or distribution (on theprospective end) .37 In either case,
possessors would have displayed sufficient criminaldeviance-that allimportant disposition to
commit crimes-to warrant a conviction (which remains theformal prerequisite for penal, if not

incapacitation), provided they should prove unable to rebut thepresumption ofcriminality by
giving a "satisfactory account" ofthemselves.38

Similarly, in such a system ofpreventive incapacitation explicit endangerment offenses ofall
shapes and sizes would soon proliferate. Here one may find specific and abstract
endangerment offenses, criminalizing either threats to a particular person or persons
(specific) or criminalizing something that generally poses such a threat, though needn't have
posed it in theparticular case (abstract). Reckless endangerment is an example of theformer,
speeding of thelatter. Once again, thepoint ofthese offenses is theidentification and
neutralization ofsources ofdanger, i.e., threats ofthreats.

Thesecret ofpreventive policingis not only theseamlessness, but also theflexibility and
interconnectedness ofits web. So, thedefinition ofoffenses is intimately related to thediagnosis
and treatment ofoffenders. Offenses simply lay thefoundation for an assessment
ofdangerousness. In their very malleability lies their value. It's this malleability that makes
room for thediscretionary dangerousness assessments at theheart of thesystem.

A "speeder" may be neutralized as a source ofdanger by a simple fine, or even a stem
warning. Then again, he might take a more intrusive incapacitative sanction, like confiscation
ofhis driver's license, and in some cases even imprisonment.39 A similar range ofmeasures is
available to treat an "assailant" (or, in New York, a "menacer"40) who threatened, as opposed
to harmed, his victim. In both cases, and this is crucial, thestate official in question (thepolice
officer, theprosecutor, thejudge, thewarden) also always has theoption ofradically revising his
dangerousness diagnosis upward. Once a potential source ofdanger has been caught in
theweb ofpreventive police, for one reason or another, he has subjected himself to a
dangerousness analysis whose scope and intensity will depend

entirely on thediscretion of thestate ("lawenforcement") official he happens to run across. As
hundreds ofthousands, perhaps millions, ofprisoners have learned over thepast thirty years, a
simple traffic stop can soon balloon into a full cavity search ofperson and car, and a simple
speeding ticket can mushroom into a lengthy term ofimprisonment.41 Thecar is pulled over
for a defective tail light, thepassenger looks "suspicious" (not necessarily in that order),
thedriver has no driver's license, a consensual search of thecar reveals drugs in theglove
compartment, a search incident to arrest turns up an unregistered gun in thepassenger's pants
pocket, and within ten minutes another source ofdanger has been temporarily, or perhaps
even permanently, extinguished.42

As we have seen, thedefinition ofoffenses under a preventive regime ofincapacitation is
simply a means ofgiving state officials theopportunity for a dangerousness assessment. At
thelevel ofoffenders, rather than ofoffenses, a preventive police regime dedicated to
theelimination of crimewill be forced to act onever less concrete evidence ofdangerousness,
resulting in thecontrol ofever more sources ofthreats and potential threats. As thepressure to
identify human hazards mounts with every undiagnosed danger who slipped through
thepolice net, thesystem will come to rely increasingly on thediscretionary diagnoses ofever
more and ever less well trained state officials. Given thecurrent mass ofregulations ofevery
aspect ofmodern life, only a minuscule portion ofwhich can be enforced, themost important
diagnostician of criminalpredisposition is not theexpert forensic psychiatrist but thepolice
officer on thebeat, aided by a network ofinformers, anonymous or not, who supply him with
indicia ofdangerousness.43

With such a vast area ofdiscretion enjoyed by such a vast number ofoften poorly trained state
officials often working under conditions ofextreme stress and fear, thefactors influencing
police discretion are as crucial as they are unknown and

unreviewed. They lie even further beyond thereach ofanalysis and supervision than
thenotoriously unspecifiable "hunch" leading a police officer to suspect that a given person
has committed a specific offense. Consciously and unconsciously shaping a police officer's
discretion, these factors never enter therecord for one reason or another, though they
occasionally emerge-like a sudden break in theclouds-from enforcement statistics or
transcripts ofintrapolice communications.44

These occasional insights into an otherwise hazy world, often intentionally obscured, suggest
that police officers' discretion operates in much thesame, unreflected way as that of thepublic
at large. Police officers' discretion simply brings into sharp relief theunreflected judgments all
ofus make. Police officers, after all, have thepower-and theobligation-to act upon their
discretion, whereas therest ofus can sit idly by as we (pre)judge this person or that. And
whatever conscious or unconscious communal identifications guide our judgment, they are
magnified a thousand fold in thecase ofpolice officers who actually fight the war on crimethat
we simply observe with varying degrees ofattention. To a police officer, the"enemies
ofsociety"45 that we, fully aware ofour powerlessness, vilify in mind and word, are not mere
chimeras: they are his personal enemies in the war on crime.


Thecommunal aspect of the war on crimeis undeniable.46 To focus on thepreventive aspect
of the war on crimeat theexpense ofits communal significance fails to capture its essence. In
fact, as we shall see, these two components mutually reinforce each other. In the end, those
who are incapacitated for thepurpose ofpreventing violent interpersonal crimeare often those
who attract communal hatred as deviant outsiders, and vice versa.

There they stand, side-by-side united in common hatred, themurder victim's father and
theprosecutor. And their communal experience is replicated vicariously by many others, even
millions, thanks to themiracle ofmodern media. In a society uncertain about its
commonalities, divided onmany constitutive issues, thecommon and deeply felt
differentiation from sources ofdanger or evil is a welcome opportunity to feel as one, to be
part ofsomething bigger.47 And after thecollapse ofcontinuously publicized external threats,
all ofwhich were traceable to theultimate source ofdanger and uncertainty, theEvil Empire
itself, the criminalpredator suggests itself as a convenient focus for themaintenance ofan
otherwise disparate community.

Thefact ofthis prolonged orgy ofcommunal feeling is as troubling as it is plain. It is troubling
because it subjugates thedesignated scapegoat to serve the"community's" need for
selfpreservation. To serve his proper community-enhancing function, theobject ofcommunal
hatred must first be excluded from thecommunity. In theory, this exclusion occurs at
themoment ofconviction. In fact, it happens much earlier. Already the"suspect" and certainly
the"defendant" finds himself differentiated from thecommunity, and therefore thetarget
ofexclusionary, and consolidating, communal sentiment.

And themoment ofexclusion can be moved back even further. Theoffender excluded himself
from thecommunity through his deviant act. That self-exclusion only finds formal or informal
recognition later on, through suspicion, arrest, indictment, and conviction, or in themore
forthright days ofAnglo-Saxon law, theact ofoutlawry.48

But that is not all. So far, we have assumed that theexclusion from thepolitical community
occurred through an act ofsome kind. In fact, so far we have assumed that theoffender's
deviant status derived from an "exclusion," which presupposed that he had been a member of
thecommunity at some point in thepast. Deviant status, however, need not result from a
deviant act. Deviance instead may be just that, deviance.

In this case, theact triggering exclusion is merely symptomatic ofa preexisting condition
ofdeviance. There's no need

to exclude theoffender, i.e., thedeviant, from thecommunity because he didn't belong in
thefirst place. Depending on thenature and origin ofhis deviance, theoffender may never have
belonged to thecommunity at all, he may have been an outsider by birth. Then again, perhaps
deviants have acquired their condition only later on, perhaps as a result oflosing or failing to
develop their empathic capacity "through," in thewords ofJohn Rawls, "no fault oftheir own:
through illness or accident, or from experiencing such a deprivation ofaffection in their
childhood that their capacity for thenatural attitudes has not developed properly."49

Most troubling ofcourse is thecase where a person is subjected to exclusionary sentiments
merely onaccount ofher status, especially if that criminogenic status is for one reason or
another permanent. According to theessentialist tendencies underlying thecurrent
incapacitative police regime, offenders must be incapacitated because they are presumptively
incorrigible. They are presumptively incorrigible because they are essentially dangerous.
They are essentially dangerous because they are genetically predisposed to commit crimes,
because they are by nature evil, because they are black, because they are hispanic, because
they are poor, because they have a low IQ, or all ofthese at once. Theparticular nature oftheir
essential dangerousness is ofno interest. Unlike therehabilitationist penologists before them,
who prided themselves in their complex nosology of criminalpathology and insisted
oncareful and prolonged scientific study of theparticular symptoms ofa specific individual
deviant, themodern incapacitationists have no patience for subtleties ofthis sort. What matters
is that there is danger and evil out there that needs to be eliminated, or at least minimized.

In thecommunitarian approach to thequestion ofpolice control, thebattle lines are clearly
drawn. On theone hand is thecommunity ofpotential victims, theinsiders. On theother hand is
thecommunity ofpotential offenders, theoutsiders. Theboundaries ofthese communities are
not fluid. One either belongs to one community or theother. And it is theduty of
thecommunity ofpotential victims to identify those aliens who have infiltrated its borders, so
that they may be expelled and controlled, and their essential threat thereby neutralized.

This clear demarcation is very convenient. It eliminates theneed to disassociate oneself from
theobject ofhatred. Whatever inclination one might have had to identify oneself with
theoffender is overcome by therealization that, from thebeginning, theoffender had merely
passed as "one ofus." There is also no need to question oneself, in particular whether I myself
might be "disposed to commit crimes."50 As a member ofa community defined by its
absence of criminaltendencies, doubts ofthis nature are entirely misplaced. There is no need
to blame oneself, either. Responsibility for theoffender's act is out of thequestion since, as a
deviant, criminalbehavior lay incorrigibly in his nature. And finally, distancing oneself from
theoffender enormously simplifies theprocess ofdisposal. Since moral judgments are
inappropriate in thecase ofa predatory animal, an efficiency analysis will do. There is no need
to understand why and how this could have happened. Theonly question is why it hadn't
happened sooner.

Thecurrent police regime put in place during the war on crimecombines preventive and
communitarian elements. On thesurface it seeks to protect potential victims ofviolent crimeby
incapacitating dangerous criminals. A closer look, however, reveals that thepotential victims
who enjoy theprotection are predominantly middle-class whites with political power and that
thepotential offenders who suffer theincapacitation are predominantly poor blacks with no
political power whatever.51 This is so despite thefacts that most victims ofviolent crimeare
poor blacks and that middle-class whites face not crime, but thethreat of crime, and that they,
perhaps driven by a bourgeois obsession with thewondrous and hyperanalyzed complexities
oftheir inner lives, seek not freedom from crime, but freedom from thefear of crime, or as
Richard Nixon put it in 1968, "freedom from fear," period.52

And this last point is crucial: the war on crime, to theextent it is fought onbehalf ofwhite
middle-class victims ofviolent crime, is purely a symbolic matter, for two reasons. First, there
are relatively few middle-class victims ofviolent crime, and, second, thefear ofviolent crimeis
best met with symbolic action: adopt a victims' rights amendment here, pass a lawsolemnly
granting victims theright to make victim impact statements at sentencing there, and most
importantly, express great concern about thehigh levels of crime, while at thesame time
expressing satisfaction at thesuccess of the war on crimein theface ofsteadily falling


The war on crime, though ostensibly fought onbehalf ofvictims, has very little to do with
victims, and everything to do with thestate. What's more, it has very little to do with persons
ofany kind. It treats offenders as mere sources ofdanger, to be policed along with other
threats, animate and inanimate alike, from rabid dogs to noxious fumes. And it treats victims
as mere nuisances themselves, annoying sources ofinefficiency in a system built to
incapacitate thegreatest number ofsource individuals for thelongest possible time with
theleast effort. In the end, crimevictims got their wish. All they wanted was "to be treated like
criminals."54 And that they were. In the war on crime, offenders and victims alike are
irrelevant nuisances, grains ofsand in thegreat machine ofstate risk management.

Thetrue victim in the war on crimeis not a person, not even "thecommunity," but simply
thestate itself. Surrounded by pesky nuisances in theform ofhordes ofpersons, be they
offenders or victims, it maintains its authority and enforces that obedience which is due its
commands. Victimless crimesthus are not victimless after all. They're only victimless in
thesense that they're missing a personal victim. Any violation of thestate's missives, any
disruption ofits administrative scheme, perhaps even ofits very foundation-theunquestioning
obedience ofits
carefully calibrated rules and regulations formulated by expert bureaucrats guided exclusively
by theconcern for thecommon good-victimizes thestate. Contumacious conduct ofthis sort
challenges not only thestate's authority, but also inflicts palpable emotional harm onits
officials who feel unappreciated and inconvenienced by thepersistent and perplexing
unwillingness of thecommoners to comply with thevery rules promulgated for their common
well-being, their commonwealth.

The war on crimeas a police action by thestate against its objects easily makes room for
thepreventive and thecommunitarian police regimes outlined above. As thepreventive model
turns out to be driven by thesame differentiating impulse that motivates thecommunitarian
model, so theauthoritarian, statebased, model in turn accommodates thegoals ofprevention
and ofcommunitarianism. On theconnection between preventive incapacitation and
theenforcement ofobedience to state commands, Roscoe Pound remarked as early as 1927
that modern "penal treatment" is best understood as "interference to prevent disobedience,"
rather than as punishment.55 Other than to prevent disobedience against thestate, criminal
lawhad for its province, not theprotection ofindividual rights against interference, but on
thecontrary "thesecuring ofsocial interests regarded directly as such, that is, disassociated
from any immediate individual interests with which they may be identified."56 And
theobjects ofthis preventive interference in theform ofpenal treatment were "well recognized
types ofantisocial individuals and ofanti-social conduct."57

In one sense, thepreventive-communitarian-authoritarian police regime of the war on crimeis
simply thefull scale adoption ofPound's approach, an approach that removes theperson from
the criminal lawin every respect, as offender and as victim. Theoffender becomes
themanifestation ofa "type" of"antisocial individual." This disappearance of theperson from
punishment in thename ofscientific penology has often been re

marked upon, so often in fact that it contributed significantly to thedemise ofrehabilitation as
a purpose ofpunishment.58

What does need emphasis, however, is that theperson of thevictim, and not merely that of
theoffender, disappears entirely and emphatically. It is replaced with a new, amorphous,
victim, "society," whose "social interests" are protected against that "anti-social conduct" one
expects from "anti-social individuals." Thevictim's "individual interests" are ofno interest to
the criminal law. In fact, the criminal lawis defined in terms ofits exclusive focus not
onindividuals, but onsocial interests.

A few years later, in an article that continues to be cited as theauthoritative study of therise
and scope ofso-called "public welfare offenses," Francis Sayre followed and developed
Pound's lead when he commented on"thetrend . . . away from nineteenth century
individualism toward a new sense of theimportance ofcollective interests," and again
on"theshift ofemphasis from theprotection ofindividual interests which marked nineteenth
century criminaladministration to theprotection ofpublic and social interests . . . ."59

Thevictim as a person is so irrelevant to this new system of"criminaladministration" designed
to protect social interests "from those with dangerous and peculiar idiosyncracies"60 that
the"individual interests" said to have found such extensive protection in nineteenth century
criminal laware theinterests of theoffender (or rather thedefendant), not thevictim.
Thefollowing passage is worth quoting at greater length for its remarkable, even astonishing,
clarity and foresight:
During thenineteenth century it was theindividual interest which held thestage; the criminal
lawmachinery was overburdened with innumerable checks to prevent possible injustice to
individual defendants. Thescales were weighted in his favor, and, as we have found to our
sorrow, thepublic welfare often suffered. In thetwentieth century came reaction. We are
thinking today more of theprotection ofsocial and public interests; and coincident with
theswinging of thependulum in thefield oflegal administration in this direction modern
criminologists are teaching that theobjective underlying correctional treatment should change
from the

barren aim ofpunishing human beings to thefruitful one ofprotecting social interests.61

In other words, criminal lawdoes not concern itself with interpersonal crimes, and so it
neither punishes nor protects human beings, but instead protects social interests against
whatever threat they may face. Theparadigmatic offense ofthis modern criminal lawis Sayre's
"public welfare offense." In this regulatory scheme ofdanger police, theoffender is stripped
ofhis personhood and reduced to a threat, a source ofdanger. As an apersonal threat whose
personhood is immaterial, his "guilt" is immaterial as well: "themodern conception
ofcriminality... seems to be shifting from a basis ofindividual guilt to one ofsocial danger."62
How can a threat be guilty, and even if it could, what difference would that make?
Thedistinguishing feature ofSayre's public welfare offenses is, after all, that they do away
with therequirement ofmens rea ofany kind. All that matters is that, one way or another,
through an act or a failure to act, intentionally or not, some social interest or other (the"public
welfare") has been threatened. So important are social interests that they require theutmost
protection, regardless ofagainst whom or what. Under these circumstances, thepolice regime
ofcourse cannot await theactual interference with these paramount interests! No, early
interference is called for-themere risk ofinterference, themere threat, is more than enough.
Naturally, theefficient policing ofdangers ofthis sort requires theabandonment ofall "defenses
based upon lack ofa blameworthy mind, such as insanity, infancy, compulsion and
thelike."63 Since guilt is irrelevant, guiltlessness is irrelevant as well.

At thesame time, thevictim as a person also has no place in this regulatory scheme. It's
thepublic welfare that needs protection against all threats, not theindividual's. And it's
thevague concept ofpublic welfare, or rather thesocial interests that thestate in its wisdom
might fit under that concept, that must be safeguarded at all costs, not theperson's concrete
rights to life, liberty, and property.

Sayre's article, in the end, is a veritable blueprint for thetwentieth century depersonalization
ofAmerican criminal law

and its transformation into a state regulatory scheme, which culminated and found its most
perverse manifestation in the war on crime of thelast quarter ofthat century. Here we find all
theingredients for a streamlined "criminaladministration" in substance and procedure.
Thecentral concept is flexibility. It is this flexibility that gives state officials-experts all-
thenecessary discretion to determine not only which social interests require protection, but
also how they are best protected, in general as well as in particular instances.

Once these interests are identified, thestate determines themost efficient means ofprotecting
them. Here, convenience is key. Substance is driven by enforcement. So, offenses are defined
to minimize inconvenient proof requirements, most important mens rea, thus relieving
prosecutors of theinconvenient burden ofestablishing each and every offender's mental state.
Similarly, therequirement ofblameworthiness, or guilt, is jettisoned, thus eliminating thetime
wasted ondefenses such as mistake, ignorance, insanity, infancy, duress, and entrapment.
Then, theprocess itself is streamlined. Thejury is abandoned and thedecision is turned over to
a professional judge, either after a bench trial or, preferably and far more frequently, after a
plea agreement. Whenever possible, thematter is to be turned over to "some form
ofadministrative control which will prove quick, objective and comprehensive."64

Theprecise definition ofoffenses is ofsecondary importance. All offenses spring from a single
source, thestate's duty to guard thepublic welfare against social dangers. All specific public
welfare offenses, therefore, are nothing more than specifications ofa single, all encompassing
offense, or rather command, which instructs everyone (and everything) not to interfere with
thepublic welfare. Thedetails and particular applications ofthis general injunction are to be
worked out by expert state officials at all levels ofgovernment. So, Sayre's list ofcategories
ofpublic welfare offenses (not a list of theoffenses themselves, mind you) is not meant to be
exhaustive, but subject to continuous revision (meaning expansion), theonly limits to which
are set by theregulatory zeal ofstate officials. Still, Sayre's list is worth reproducing since it,
though framed as a mere snapshot in thehistory ofAmerican criminaladministration, so
nicely-some anachronisms notwithstanding-charts

thecourse ofwhat was to come in thedecades ahead, while at thesame placing recent
developments-including the war on crime-in a broader historical context:

(1) Illegal sales ofintoxicating liquor;

(2) Sales ofimpure or adulterated food or drugs;

(3) Sales ofmisbranded articles;

(4) Violations ofanti-narcotic acts;

(5) Criminalnuisances;

(6) Violations oftraffic regulations;

(7) Violations ofmotor-vehicle laws; and

(8) Violations ofgeneral police regulations, passed for thesafety, health or well-being of

Offenses falling under these categories today account for thevast majority ofmatters
of"criminaladministration." Offenses in categories (4), (6), and (7) alone easily account for
most offenses committed, prosecuted, and sanctioned.

Certainly, things have changed since Sayre's 1933 article. Thestate has shown considerable
imagination in making use of theflexibility it needed to discharge its duty to safeguard
the"public welfare." Thescope ofpublic welfare offenses has been expanded, thesanctions for
their commission enhanced, and their enforcement simplified and accelerated. This general
development culminated in and was dramatically accelerated by the war on crime. Regulatory
offenses provided theideal means for incapacitating large numbers ofundesirables quickly
and, eventually, for long periods oftime. Among theoffenses onSayre's list, violations ofanti-
narcotics law(no. 4) proved to be a particularly popular weapon in thepolice campaign against
crime. Thepenalties for drug violations today include every punishment short ofdeath,
including life imprisonment without parole. In 1993, thenumber ofdrug offenders in
American prisons reached 350,000, almost twice thetotal number ofprison inmates in theearly
1960s. Thetripling of thefederal prison population since the1970s is largely attributable to
theexpansion and harshening offederal drug criminal law, with thenumber offederal drug
offenders increasing eighteen-fold from three thousand to over fifty thousand, or sixty
percent offederal prisoners.

But other offense categories have proved useful as well. Weapons offenses, which qualify as
violations of"general police regulations, passed for thesafety, health or well-being of
thecommunity" (no. 8), also allow police officers to take dangerous elements off thestreets in
large numbers, and with little effort. And thanks to unprecedented cooperation between state
and federal lawenforcement agencies, weapons offenders can now be incapacitated for
extended periods oftime. "Project Exile" makes use of theharsh federal weapons laws,
literally, to "exile" offenders from their local communities by committing them to far away
federal prisons. In a typical case, a Philadelphia police officer, while "frisking [a] suspect
near a drug area," happened to find a loaded gun in thesuspect's waistband. Instead of
theprobationary sentence theman might have gotten in city court, he was sentenced to five
and a half years in a federal prison, without thepossibility ofearly release. As theofficer
explained in an interview, "[a]nd that's not just local jail where thefamily can come visit him,
or come see him and visit him. They're sent anywhere in thecountry, so they're separated
from their families and there's no probation or parole under thefederal guidelines, so they're
doing their complete sentence."66


In general, theoffense of possession-whether ofdrugs, ofguns, or anything else-has emerged
as the policingdevice ofchoice in the war on crime. Most straightforwardly, and now also
most commonly, possessionoperates directly as possessionqua possession, an offense in and
ofitself. Or it functions indirectly, through some other offense, either as a springboard to
another offense, through retrospective and prospective presumptions, or as an upgrade for
another offense, through sentence enhancements. Since possessionhas achieved thestatus of
the crime war's paradigmatic police offense, it deserves a closer look. By focusing on
possession, we will also get a sense of themarvelously integrated operation of theregulatory
machine that is the war on crime. Possession, after all, achieved its

favored status partly because it is flexible yet durable enough to fit so nicely into the
policingprocess as a whole.


Operating below theradars ofpolicy pundits and academic commentators, as well as under
theConstitution, possessionoffenses do the crime war's dirty work. Possessionhas replaced
vagrancy as themost convenient gateway into the criminaljustice system. Possessionshares
thecentral advantages ofvagrancy as a policingtool: flexibility and convenience. Yet, as we
shall see, it is in the enda far more formidable weapon in the war on crime: it expands
thescope of policinginto thehome, it results in far harsher penalties and therefore has a far
greater incapacitative potential, and it is far less vulnerable to legal challenges.
Millions ofpeople commit one ofits variants every day, from possessing firearms and all sorts
ofother weapons, dangerous weapons, instruments, appliances, or substances,67 including toy
guns, 68 air pistols and rifles,69 tear gas, ammunition, 71 body vests,72 and anti-security
items,73 to burglary tools74 or stolen property,75 and ofcourse drugs,76 and everything
associated with them, including drug paraphernalia, 77 drug precursors, 78 not to mention
instruments of crime,79 graf fiti instruments,80 computer related material,81 counterfeit

trademarks,82 unauthorized recordings ofa performance,83 public benefit cards,84 forged
instruments,85 forgery devices,86 embossing machines (to forge credit cards), slugs,88
vehicle identification numbers,89 vehicle titles without complete assignment,90 gambling
devices,91 grambling records,92 usurious loan records,93 prison contraband obscene
material,95 obscene sexual performances by a child,96 "premises which [one] knows are
being used for prostitution purposes,"97 eavesdropping devices,98 fireworks,99 noxious
materials,100 and taximeter accelerating devices (in New York),101 spearfishing equipment
(in Florida),102 or undersized catfish (in Louisiana), and thelist could go onand on.

And that's thefirst prerequisite for a sweeping offense. Lots ofpeople must be guilty ofit.
Thanks to theerosion ofconstitutional constraints onpolice behavior in thestate declared
emergency of the war on crime, possessionis easy to detect. Every physical or merely visual
search, every frisk, every patdown, is also always a search for possession. Like vagrancy

(and pornography), then, police officers know possessionwhen they see it. Unlike vagrancy,
they also know it when they feel it.

Police officers have become experts at detecting "bulges" in various articles ofclothing, each
ofwhich signal an item that may be illegally possessed. Similarly, police officers and
thejudges who occasionally review their actions have long been particularly imaginative in
their interpretation of theparticular nature ofthese bulges, when thetime has come to confirm
one's visual suspicion with a physical frisk. Here thesearch for one illegally possessed item-
say a concealed weapon-may actually bear fruit in theform of thediscovery ofanother illegally
possessed item-say a bag ofcocaine. Possessionoffenses in this way manage to bootstrap
themselves, each giving theother a helping hand.

Moreover, thecase for a possessionoffense begins and endswith a search, no matter whether it
was a search for a possessionoffense or for some other crime. If it's a search in connection
with some other crime, thepolice officer may well stumble upon evidence ofillegal
possession. This may come in handy if no evidence of theother crimeis found or if that
evidence doesn't stick for one reason or another, say because it's not sufficiently corroborated
by other evidence or because some defense or other applies (like self-defense, perhaps). If it
is a search for a possessionoffense, however, thescope of thesearch is virtually unlimited,
given that items possessed come in all shapes and sizes (especially drugs) and can be hidden
in thesmallest cavity, bodily or not.

Thanks to an expansive reading of possessionstatutes-- which includes theinapplicability
ofmany defenses-possessionis easy to prove. In fact, there won't be any need to prove
anything, to anyone, judge or jury. Virtually all defendants in a possessioncase see thewriting
on thewall and plead guilty. And, thanks to penalty enhancements for prior convictions and-
most recently-theinnovative collaboration offederal and state lawenforcement,
possessiononce proved can send a possessor to prison for a long time, even for life without
thepossibility ofparole.
So, in a recent New York case, a defendant was relieved to find himself acquitted ofseveral
serious burglary charges onwhat we now like to call a "technicality." Unfortunately for him,
he was convicted ofpossessing stolen property-theloot of thevery burglary ofwhich he had
been acquitted. What's more, thejudge sentenced him to twenty-five years to life on the
possessioncount alone. As a professional burglar he was a "scourge to thecommunity."104

In 1998, possessionoffenses accounted for 106,565, or 17.9%, ofall arrests made in New
York State.105 Ofthese cases, 295 (or 0.27%) resulted in a verdict (by a judge or a jury), a
whopping 129 (0.12%) in an acquittal. Ofthose originally arrested for possession, 33,219
(31.2%) went to prison or jail. New York boasts no fewer than 115 felony
possessionoffenses, all ofwhich require a minimum ofone year in prison; eleven ofthem
provide for a maximum sentence oflife imprisonment.

Possessionhas become theparadigmatic offense in thecurrent campaign to stamp out crimeby
incapacitating as many criminalsas we can get our hands on. Every minute ofevery day,
police pull over cars and sweep neighborhoods looking for, or just happening upon,
"possessors" ofone thing or another. Prosecutors throw in a possessioncount for good
measure or, if nothing else sticks, make do with possessionitself. Why, as one Michigan
prosecutor remarked before theU.S. Supreme Court, why bother charging more involved
offenses if you can get life imprisonment without parole for a possessionconviction?106

In many cases, possessionstatutes also save prosecutors thetrouble ofproving that other major
ingredient of criminalliability in American criminal law, mens rea, or a guilty mind. This
means that many possessionstatutes, particularly in thedrug area-where some of theharshest
campaigns in the war on crimehave been prosecuted-are so-called strict liability crimes. In
other words, you can be convicted ofthem if you don't know that you are "possessing" a drug
ofany kind, what drug you are "possessing," how much ofit you've got, or-in some states--
even that you are possessing anything at all, drug or no drug.107

This much we might have expected from Sayre's theory of"public welfare offenses."
Possession, however, also does away with thetraditional requirement that criminalliability
must be

predicated onan actus reus, an affirmative act or at least a failure to act (rather than a status,
like being in possession ofsomething). So even if some sort ofintent (or at least negligence) is
required for conviction, there is no need to worry about theactus reds.

Plus, it turns out that other defenses also don't apply to possessionoffenses. We've already
seen that, in Sayre's scheme, culpability and responsibility defenses have no place in a
possessioncase. But what about other defenses, such as self-defense or necessity?

Say you're riding in theback seat ofyour friend's car as a couple ofmen try to jack thecar, guns
drawn. You notice a gun under thedriver seat, bend down and grab it, and then shoot one of
themen in theleg. You're cleared of theassault ongrounds ofself-defense. Still, since you
weren't licensed to carry thegun, you're liable for possessing it illegally. This is so because
thedefense ofself-defense applies only to theuse, but not to the possession of thegun.108

As a final example, consider theso-called "agency" defense. It turns out that this defense aD
applies to thesale, but not to thesimple possession, ofnarcotics.RR To understand why, we
need to take a closer look at themenu of possessionoffenses available to themodern legislator.
We can distinguish between two types of possessionoffenses, simple possessionand
possessionwith intent, or compound possession. Simple possessionitself can, but need not,
require proof ofactual or constructive awareness-- that you knew or should have known that
you possessed theobject in question. If it doesn't, it's called a strict liability offense (see
above). Possessionwith intent is by definition not a strict liability offense, since it requires
proof ofintent.

It may be helpful to view thevarieties of possessionalong a continuum from dangerousness at
one endto its manifestation at theother. At the end ofpure dangerousness is simple possession.
Here we are farthest removed from theharm that theuse of theobject may cause. And in
thestrict liability variety ofsimple possession, theinference from thedangerousness of theitem
possessed to its possessor is most tenuous-since he by definition is not even aware ofhis
possession. Next is com

pound possession, which still inflicts no harm since the possessionitself is harmless, but at
least we have theintent to use theitem possessed in a way that may or may not be harmful.
Moving further along thecontinuum we encounter thepreparation to use theitem possessed in
some particular way. This preparation, as distinct from an attempt, is not criminalized.

Next comes theattempt to use theobject possessed, which is a preparation that has almost, but
not quite, borne fruit. And eventually, there is theuse of thepossessed item. In thecase
ofdrugs, that use may come in theform ofa sale, as in thepopular and often severely punished
offense of"possessionwith intent" (to distribute). Ofcourse, thedistribution itself is also
entirely harmless. It's another kind ofuse, which may or may not follow thedistribution, that
renders drugs harmful, namely their consumption. But theharmfulness of theuse is not an
element ofa compound possessionoffense criminalizing possessionwith intent to distribute.
There is no offense of possessionwith intent to consume. In fact, some jurisdictions recognize
possessionwith intent to consume as a mitigating rather than an aggravating factor, especially
when thedrug possessed is marijuana (possession ofquantities for personal use). 110

Now courts have held that theagency defense does not reach thesimple possession ofdrugs
because someone who merely possesses drugs, without theintent to sell, does not-and in fact
cannot-act as the"agent" of theultimate buyer, and his possessiontherefore cannot be merely
incidental to thepurchase.' 11 For one thing, he doesn't act at all, he merely possesses.
Themere fact of possessionis enough for conviction, no matter what thereason or who
theeventual beneficiary. This arrangement, once again, has theconvenient effect-for
theprosecutor-ofensuring him a conviction ofsimple possession, in cases where theagency
defense would block convictions of possessionwith intent to sell, or even thesale itself.

By now, you may not be surprised to learn that you didn't even have to pick up thegun to be
guilty ofpossessing it illegally. Again in New York-but in many other jurisdictions as well-
you may well have "constructively" possessed theweapon simply by having been in thecar at
thesame time. So to possess

something in theeye of the criminal lawdoesn't mean you owned it, nor does it mean you
physically possessed it. It's generally enough that you could have brought it within your
physical possessionor at least kept others from bringing it within theirs. (Technically, you
constructively possessed thegun if you "exercise [d] dominion or control over" it.112)
And, as though proving possessionisn't easy enough, the law of possessionalso teems with
evidentiary presumptions. Not only can you constructively possess something you don't have
in your hands or onyour person, you can also be presumed to constructively possess it. In our
example, this means that it will be up to you to prove to thejury-should you be among
theminuscule percentage of possessiondefendants who make it to a jury trial-that you did not
in fact possess thegun, constructively, which is a tough row to hoe, given what we just
learned about how little it takes to establish possession.

Themost popular choice among legislatures anxious to further reduce prosecutorial
inconvenience associated with theenforcement of possessionoffenses is to establish therule
that mere presence constitutes presumptive possession. Themore eager thestate is to get
certain possessors off thestreet, and themore dangerous these possessors have revealed
themselves to be through their possession, themore dangerous theitem possessed, thegreater
thetemptation will be to do away with evidentiary requirements, and thereby to accelerate
theincapacitation process. Small wonder that these presumptions from presence to
possessionpop up in gun and drug possessioncases.113

In theNew York Penal Law, for example, merely being around drugs not only amounts to
presumptively possessing them. It further simplifies theprosecutor's incapacitative task by
also establishing a presumption of"knowing" possession.114 So, from evidence ofbeing in
thesame car or room with a controlled substance, theprosecutor gets, without additional
evidence, to jump to theconclusion that you possessed thedrugs, and knew that you did. And,
as we just saw, this conclusion will stand, unless you convince thefact finder otherwise. And
that fact finder is, in virtually every possessioncase, none other than

theprosecutor himself, who offers you a reduced sentence in exchange for a guilty plea.

Theuse ofmere presence as a foundation of criminalliability has an additional benefit.
Presence not only simplifies theprosecutorial task ofconnecting a given object with a
particular possessor. Presence can with one fell swoop ensnare not just one, but several,
persons in theweb of possessionliability emanating from a piece ofcontraband at its center.
Presence-to-- possessionhas this useful feature thanks to a generous interpretation of
possessionthat makes room for non-exclusive possession ofchattels, notwithstanding that
"real" is supposed to differ from "movable" property precisely in that non-exclusive
possessionwas possible in theformer, but impossible in thelatter: "if we concede possessionto
theone, we must almost ofnecessity deny it to theother."115

Presence-based liability ofthis sort points up another feature of possessionoffenses:
theirrelevance oftraditional distinctions among principals and accomplices. Non-exclusive
possessioncombined with a presumption of possessionbased onmere presence brings anyone
somehow "involved" with a dangerous object within thescope ofpolice control. Careful
doctrinal, i.e. abstract, distinctions among different levels of"involvement" in the crime of
possessionwould inconvenience state officials-mostly police officers-to whose discretion
thediagnosis ofdangerousness in particular cases is entrusted. And it makes sense that
complicity analysis would be entirely inappropriate; since possessionis not an act, thecentral
question ofcomplicity-can A's act be imputed to B-simply does not arise. What's at stake is
not liability for an act, carefully calibrated by individual culpability, but theascription of
thelabel "possessor" (or, functionally, "dangerous individual") for thepurpose ofpermitting
police interference with possible punitive consequences.
Still, thecomplicity model turns out to be surprisingly useful in an analysis of
possessionoffenses, as long as one frees oneself of thenotion that complicity-or any other
form ofgroup criminality-requires at least two persons. Possessionoffenses, in a sense, treat
anyone "involved" with thedangerous object as an accomplice. Theinteresting thing about

offenses is that theprincipal is not a person, but an inanimate object. In theory, if not in
function, thesource of criminalliability is theobject, not thepossessor. Hence, criminalliability
results from contact, however slight, with theobject. Theinvolvement with theobject need
only be substantial enough to allow its taint, its dangerousness, to come into contact with its
possessor. By failing to disassociate himself from thedangerous object, thepossessor has
placed himself in a position where theobject's dangerousness can be ascribed to him. He has
revealed himself as sharing theobject's dangerousness. He will be deemed its "possessor," as
"exercising dominion or control over it," if he "was aware ofhis physical possessionor control
thereof for a sufficient period to have been able to terminate it."116

This imputation ofan object's characteristics onto its possessor is familiar from medieval law.
There, each head ofhousehold was presumptively liable for damage caused by his
possessions, animate and inanimate alike, unless he surrendered them to thevictim's
household immediately upon becoming aware of thedamage they had done. If he didn't
disassociate himself from thetainted piece ofproperty in this way, and instead continued to
feed theoffending slave or dog, or handled theblood-stained axe, he had to pay wergeld to
thevictim's household.117 Theonly prerequisite for liability was causation ofharm and
possession. On thehouseholder's part, no act was required.

While medieval lawthus knew oftransferring an object's taint onto its possessor and holding
thepossessor liable simply as possessor, it differed from contemporary possessionliability in
one important respect: it required harm. Modern possessionliability transfers thedanger from
an object to its possessor and holds him liable as a source ofdanger, without theobject's
danger ever having manifested itself.

Thefundamental difference between thetwo instances ofascribing characteristics from an
object to its possessor is that themedieval example is centered on thepossessor, whereas
thecontemporary one focuses on theobject possessed. Themedieval householder is liable for
theharm caused by his possessions

because they are his possessions. Today's non-exclusive constructive gun possessor is
incapacitated because ofhis spatial association with thedangerous object. Themedieval model
extracts damages for thevictim from themost obvious source, either in theform of
theoffending possessionthat thevictim could use-or not use-at his discretion or of
thehouseholder's wergeld, traveling up theladder ofproperty relations from possessed to
possessor. Themodern model turns possessionitself into theoffense, without harm, to subject a
presumptively dangerous individual to police investigation and control. In themedieval
model, responsibility travels from thepossessor to thepossessed. In themodern model, with no
harm and therefore no responsibility to be ascribed, dangerousness travels from thepossessed
to thepossessor for its own sake, to label thepossessor as dangerous.

Theidea ofcomplicity among objects and their human possessors, and ofa transfer
ofcharacteristics from one to theother and back again, may appear odd. But it makes perfect
sense in a police regime ofthreat elimination and minimization. In such a regime,
characteristics apparently limited to persons-- such as mens rea, or culpability-turn out to be
nothing more than general, though cryptic, references to dangerousness. So a person acting
with mens rea, or "malice," reveals himself to be abnormally dangerous. The"higher"
themens rea, thehigher thelevel ofdangerousness. So thepurposeful actor is most dangerous
(because ofhis evil disposition and his likelihood ofsuccess), followed by theactor acting with
knowledge that he will cause harm, rather than theintent to do so, followed by themerely
reckless actor, who knows that his conduct may cause harm but goes ahead with it anyway,
followed by thenegligent actor, who is simply dangerously clueless.

Theconnection between dangerousness and mens rea is so natural that courts slide back and
forth between thetwo even in theanalysis of thedangerousness ofobjects. So an object's
"inherent dangerousness" can quickly become its "inherent vice," as happened in a fairly
recent opinion which had theNew York Court ofAppeals struggling with thequestion whether
rubber boots qualified as a "dangerous instrument" (they do: though themselves free
of"inherent vice," they were used in a dangerous way, by stomping someone on
thepavement)." 118 In the end, not only can persons be noxious, but objects can be evil as

From theperspective ofthreat management, no qualitative difference separates possessor from
possessed. They simply are more or less serious threats, source individuals and danger
carriers, allowing evil taints to pass back and forth between them. It only makes sense, then,
that possessors and possessed, in fact dangers ofall shapes and sizes, be processed by a
general hazard control system that begins with theidentification ofpossible threats, proceeds
to their diagnosis, and endswith their disposal.

Thegeneral contours ofsuch an apersonal hazard control regime emerge if we superimpose
various ofits manifestations upon each other. Theidentification and disposal ofdangerous
objects occurs in many contexts. In general, every object or animal, the possession ofwhich is
criminal, is subject to a parallel system ofhazard control. This makes sense: even after
thepossessor is punished for possessing, and deprived ofhis possession, theitem possessed
still needs to be disposed of.

Themere possession ofcertain highly hazardous (or "toxic") waste is prohibited.119 And so
environmental lawdeals with, among others things, the"management," i.e., theidentification
and disposal, of"hazardous waste," or more broadly, "substances hazardous or acutely
hazardous to public health, safety or theenvironment."120

Possessing dangerous dogs, at least without a license, also is a crime.121 Supplementing this
prohibition, animal laws(often awkwardly classified under lawsdealing with agriculture 122)
handle the"control," i.e., theidentification and disposal,

through "seizure," "confiscation,"123 and "destruction," of"dangerous dogs" or "mischievous

Then, ofcourse, there are the lawstracking the criminalproscription ofgun and drug
possession. These "administrative provisions"125 deal with the"[d]isposition ofweapons and
dangerous instruments, appliances and substances," and the"seizure," "forfeiture," and
"disposition" of"controlled substances [and] imitation controlled substances.27 And ofcourse,
theentire law ofin rem forfeiture which has made such enormous strides in the war on crimeis
based on theidentification and disposal ofobjects (re) that are dangerous in and

Thegeneral law ofnuisances can be seen as thearchetypal hazard control regime. (Many, but
not all, of themore specific schemes make their connection to nuisance disposal explicit. 129)
Modern nuisance statutes are all about theidentification and disposal ofhazardous or
otherwise "offending" objects, "declaring," "enjoining," "condemning," and "abating"
nuisances.130 There we also find thedistinction between nuisances per se-inherently
dangerous objects-and other nuisances-objects that are merely put to "noxious" use.
Abatement of theformer requires destruction (without compensation).13 Abatement of
thelatter doesn't; putting theobject to non-noxious use is enough.

Hazard control schemes generally begin with a "declaration." Before an item can be subjected
to theproper kind ofcontrol, it must first be determined whether it is a hazard at all,

and, if so, what kind ofhazard it is. Only items "declared" to be a "nuisance" (or "dangerous")
fall within thejurisdiction ofa system ofhazard administration or management.132

Among nuisances, a system ofhazard management will then roughly distinguish between two
types ofthreats, one incidental and curable, theother inherent and incurable. Depending on
thetype ofhazard, its source is either forfeited and turned to good use, or destroyed as a
nuisance per se. Objects not inherently dangerous, i.e., objects for which there is hope, are
first subjected to a diagnosis that determines whether they in fact have been tainted through
association with a dangerous person. These objects may include, for example, "vehicles,
vessels and aircraft used to transport or conceal gambling records,"i 33 family cars used to
solicit prostitutes,134 and anything somehow associated with a drug offense, from cars, to
houses, to yachts, and even exercise equipment.135

If theobjects have been tainted, and it is upon thepossessor to rebut thepresumption that they
have, then they are forfeited. This means that they are temporarily or permanently brought
under state control-and thereby also taken out of thecontrol oftheir tainted possessor, thus
removing thetaint. State officials decide in their discretion theduration of theperiod ofcontrol.
In cases oftemporary control, an object is eventually released to thegeneral public by public
sale. 136 Alternatively, state officials may decide to subject theobjects to permanent control.
They may "retain such seized property for theofficial use oftheir office or department."137
(This provision has

brought substantial income to police departments throughout thecountry, and has provided an
important incentive to pursue the war on crimewith great vigor.)

Inherently dangerous objects, theincurably vicious, such as guns and drugs, are permanently
incapacitated. Weapons, for instance, are "destroyed" or otherwise "rendered ineffective and
useless for [their] intended purpose and harmless to human life."138 Dangerous dogs
similarly are "euthanized immediately" or "confine[d] securely [and] permanently."139

Interestingly, theNew York weapons disposal statute provides for two exceptions to this
general rule ofpermanent incapacitation. One is within thediscretion ofa judge or a
prosecutor: "a judge or justice ofa court ofrecord, or a district attorney, shall file with
theofficial a certificate that thenon-- destruction thereof is necessary or proper to serve the
ends ofjustice." Theother is up to thedesignated disposal official himself: "theofficial directs
that thesame be retained in any laboratory conducted by any police or sheriff's department for
thepurpose ofresearch, comparison, identification or other endeavor toward theprevention and
detection of crime."140

Theparallels between this fairly complex scheme for theidentification and disposal ofnon-
human threats, animate or inanimate, and modern criminaladministration are apparent. As we
saw earlier, these hazard control schemes apply to objects the possession ofwhich is criminal,
i.e., they apply to contraband. But not only is the possession ofnoxious objects criminal,
thepossessors themselves are noxious objects. In a comprehensive hazard control regime
thedistinction between possessor and possessed, and between person and property, is as
insignificant as thedistinction among hazards generally speaking. A person is "declared an
enemy of thestate,"141 while property is "declared a public nuisance."142

Possessor and possessed are lumped together into a hazard cluster that must be neutralized.
That one is a person, and theother isn't, makes no difference. In theface ofsuch danger,

very personal considerations ofmens rea are out ofplace. Thepossessor's mens rea matters as
much as thepossessed's: thefact ofdangerousness is themens rea, theviciousness, that requires
state interference. To say that the possession ofhazardous objects is a typical strict liability
offense therefore is only half right.143 It's theconnection to a hazard that substitutes for mens
rea. Theliability isn't strict; it's grounded in dangerousness.

In the end, possessors are punished not only for possessing nuisances, but for being nuisances
themselves. A "dangerous dog" is "any dog which (a) without justification attacks a person
and causes physical injury or death, or (b) poses a serious and unjustified imminent threat
ofharm to one or more persons."144 Similarly, offenders are persons who (a) engage in
"conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual
or public interests"145 or (b) "whose conduct indicates that they are disposed to commit
crimes."146 Dangerous dogs are identified and controlled.147 Dangerous humans are
identified and then subjected to "public control."148

Thecontrol ofhuman hazards can be temporary or permanent, depending ontheir classification
as incidental or inherent dangers. Corrigible human threats are subjected to rehabilitative
treatment, a cleansing process in social control institutions (i.e. prisions). Incorrigible ones
suffer incapacitative treatment, either through permanent warehousing under a life sentence,
with an additional element ofenlisting inmates in theservice of thestate. Consider here theuse
ofinmates in prison industries. Note also that theThirteenth Amendment, prohibiting slavery,
explicitly excludes prisoners149 and that even enlightened reformers like Cesare Beccaria
viewed (and advocated) imprisonment as a form ofstate slavery.

Alternatively, incorrigible human threats are destroyed through execution. It's no accident
that themodern method for eliminating human hazards closely resembles that for
theelimination ofdangerous dogs. Conversely, theNew York dangerous dog lawprovides that
"'[e]uthanize' means to bring about death by a humane[!] method."151

Even theexceptional retention ofinherently dangerous objects marked for neutralization finds
a parallel in therealm ofhuman hazards. Consider, for instance, thefrequent retention
ofotherwise dispensable offenders as witnesses in thedisposal processes ofother human
hazards, and, more generally, thepractice ofgranting leniency in exchange for testimony. In
either case, "non-destruction" of thehuman hazard can be deemed "necessary or proper to
serve the ends ofjustice." Today, prisoners are no longer forced to subject themselves to
scientific experiments, though they may submit to them voluntarily, or as voluntarily as one
can submit to them under theconditions in many prisons.152

What's more, some non-human hazard control regimes provide not only a definition
ofoffenses familiar from criminalcodes. They even lay out defenses to an allegation
ofdangerousness analogous to thedefenses recognized in criminal law. For instance, New
York's statute governing the"Licensing, Identification and Control ofDogs"153 is dedicated
to "theprotection ofpersons, property, domestic animals and deer from dog attack and
damage."154 A dog reveals itself as dangerous if it "attack[s] any person who is peaceably
conducting himself in any place where he may lawfully be"155 or if it "attack[s], chase [s] or
worr[ies] any domestic animal... while such animal is in any place where it may lawfully
be."156 So theactual infliction ofharm isn't a prerequisite. When thevictim is a domestic
animal, "chasing" will do.

So much for thespecial part ofthis dangerous dog code. But what about defenses? Several are

A dog shall not be declared dangerous if thecourt determines theconduct of thedog (a) was
justified because thethreat, injury or damage was sustained by a person who at thetime was
committing a crimeor offense upon theowner or custodian or upon theproperty of theowner or
custodian of thedog, or (b) was justified because theinjured person was tormenting, abusing
or assaulting thedog or has in thepast tormented, abused or assaulted thedog; or (c) was
responding to pain or injury, or was protecting itself, its kennels or its offspring.157

Thefacially dangerous dog thus has at least four defenses at its disposal. All ofthese defenses
qualify as "justifications." Recall that already in thedefinition of"dangerous dog," we find a
limitation to attacks "without justification" and "unjustified" threats. First, and more general,
thedog can raise a general justification defense by claiming that its victim, in thecase ofa
person, was not "peaceably conducting himself" or was not "in [a] place where he may
lawfully be,"151-or, in thecase ofa domestic animal, was not "in [a] place where it may
lawfully be."159 This first line ofdefense finds a rough analogue in theModel Penal Code's
general justification defense (choice ofevils), which provides that "[c]onduct that theactor
believes to be necessary to avoid a harm or evil to himself or to another is justifiable,
provided that ... theharm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the lawdefining theoffense charged. . . ."160 Here it would seem
that theNew York legislature has determined that thebalance ofevils weighs against thevictim
ofa dog attack if he (or it) wasn't engaging in lawful conduct at thetime of theattack, either by
not peaceably conducting himself or by not being where he (or it) may lawfully be.

Alternatively, this implicit, general, justification defense is simply fleshed out by thethree
defenses laid out in thepassage quoted above. Again, these defenses are familiar from
theModel Penal Code-and traditional criminal law. Defense (a) is analogous to theCode
provisions on"use offorce for theprotection ofother persons" (defense ofothers) 161 and "use
offorce for theprotection ofproperty" (defense ofproperty).162

Defenses (b) and (c) parallel theCode defenses "use offorce in self-protection" (self-
defense),163 "extreme mental or emotional disturbance" (provocation), and once again
defense ofothers.164 If anything, thecanine statute is more generous than thehuman
statute.165 TheCode-and traditional criminal law-- limits thedefense ofprovocation to
homicide cases.

By encompassing and connecting human and non-human threats as possessors and possessed,
theconcept of possessionhelps to make this apersonal system ofhazard control, where hazards
are identified and eliminated regardless ofwho or what they might be, possible. By providing
state officials with a flexible doctrinal framework for their discretionary analyses
ofdangerousness, possessionoffenses quietly supplement a growing system for theexplicit
assessment ofhuman dangerousness, which includes pre-trial detention hearings, sentencing
hearings, and, most recently, sexual predator ratings, as well as parole hearings.166 They
introduce dangerousness considerations into an area of criminal lawthat, onits face, follows
thetraditional approach ofmatching behavior to definitions ofproscribed conduct in
criminalstatutes. Dressed up like an ordinary criminalstatute replete with conduct element
("possesses"), attendant circumstances ("three kilos ofpowder cocaine"), perhaps even mens
rea ("with intent to distribute"), a possessionoffense in reality is a carte blanche for police
control ofundesirables, through initial investigation and eventual incapacitation.

Given theflexibility ofits conception and theconvenience ofits enforcement,
possessionoffenses alone can quickly and easily incapacitate large numbers ofundesirables
for long periods oftime. Possession, however, unfolds its full potential as a threat elimination
device when used in conjunction with other broad-sweeping police offenses.

Themost potent combination ofmodern policingis thetraffic offense and possession. Every
day, millions ofcars are stopped for one of themyriad ofregulations governing our use
ofpublic streets. As soon as you get into your car, even before you turn theignition key, you
have subjected yourself to intense police scrutiny. So dense is themodern web ofmotor
vehicle regulations that every motorist is likely to get caught in it every time he drives to
thegrocery store. Thegood news is that thegap between regulation and enforcement of
thetraffic lawsis enormous. Unfortunately, that's also thebad news. It is by thegood graces, or
theinattention, ofa police officer that you escape a traffic stop and a ticket, or worse.

Penalties for traffic violations are often astonishingly high, including short term incarceration
even for a first offense, but they are irrelevant in thelarge, incapacitative, scheme
ofthings.167 The war on crimeuses traffic stops not to hand out tickets, or even ten day jail
sentences. In the war on crime, traffic stops are a convenient opportunity to identify and
eliminate threats. Theidentification begins with general observation, continues with a glance
inside thecar, and endswith a full fledged search of thecar and its occupants. Theelimination
takes theform of theone-two punch oftraffic violation and possessionoffense. Untold times
each and every day, traffic stops reveal evidence of possessionat some stage of
theidentification process, be it thegun protruding from under thepassenger seat, therounds
ofammunition rolling around on thefloor, themarijuana paraphernalia sticking out from under
a blanket on theback seat, or thevial ofcrack cocaine found during thesearch incident to arrest
for driving without a registration. One moment thedriver of the"late model sedan" was
cruising down 1-95. Thenext moment he finds himself charged with a possessionfelony ofone
kind or another, or both, as in the"variety ofnarcotics and weapons offenses" familiar from
Supreme Court opinions. 168

In the end, it really makes little difference exactly why a particular person attracted
theattention ofa police officer. What matters is that, once he has been identified as a potential
possessionoffenses are a convenient way to get him off thestreets, either in conjunction with
another offense, or increasingly all by themselves. Theconnection between evidence of
possessionand possessionis instantaneous, and evidence of possessionis easily found.

To see just how easy, let's take a closer look at some of theways in which police can happen
upon "contraband," in thespecific sense of"thevery things the possession ofwhich was the
crimecharged."169 We needn't look far for illustrations of theconvenience of possession
policing. TheSupreme Court's criminalprocedure opinions are filled with them. Given that
only successful possessionsearches make it before any court, that only a small portion ofthese
cases then make it before an appellate court, only a minuscule fraction ofwhich in turn make
it to theSupreme Court, we can only guess how often the policingpractices considered by
theCourt are used "in thefield."


A glance at theSupreme Court's possessionrelated opinions reveals thesignificance of
possessionpolice in all its marvelous variety. We will also see how willing theCourt has been
to accommodate theneeds of lawenforcement in its effort to incapacitate undesirables by
connecting them to one, or more, of theoffenses in their possessiongrab bag. In fact, it will
turn out that much of theSupreme Court's recent criminalprocedure jurisprudence has been
made with possessioncases. From Carroll to Terry to Wardlow, possessionoffenses have
inspired theCourt to loosen constitutional protections in theservice ofmore effective policing,
and most recently of the war on crime.

Police officers are liable to stumble upon possessionevidence anytime they make an arrest.
This makes sense. Early on, police were entitled to search any area in an arrestee's
possession. So evidence of possessionwas found within thearrestee's possession. For instance,
in United States v. Rabinowitz,170 thesearch incident to Rabinowitz's arrest revealed a plate
"from which a similitude ofa United States obligation had been printed," and possession
ofwhich was illegal.

This connection between possessionand possessionwas muddled when theCourt overruled
Rabinowitz some twenty years later, in Chimel v. California.171 Since Chimed thescope of
thesearch incident to an arrest is defined by thearrestee's "armspan."172 That way, police are
not supposed to be able to search areas that are within thearrestee's possession, but not within
his reach. This doesn't mean ofcourse, that police no longer find evidence of(illegal)
possessionduring a search incident. On thecontrary. For one thing, thearmspan area is merely
a subset of thearea within thearrestee's possession. For another, since the1990 decision in
Maryland v. Buie,173 police can do a much broader "protective sweep"-as opposed to a
search-ofsurrounding areas far beyond thearrestee's armspan, as well as beyond thearea
within his actual possession. As Justice Brennan explained in his Buie dissent, "a protective
sweep would bring within police purview virtually all personal possessionswithin thehouse
not hidden from view in a small enclosed space." 174 He's right, ofcourse, and from
theperspective of possessionpolice, that's a good thing. "Personal possessions" obviously-and
conveniently-include not only evidence of the crimeunderlying thearrest, but evidence of
thestandard possessionoffenses as well.

As one might expect, thecombination ofsearch incident to arrest and traffic stops has been a
fruitful one for thedetection ofitems illegally possessed, and theincapacitation ofthose who
possess them. TheSupreme Court expanded a passenger's "armspan" to theinterior ofa car in
New York v. Belton.175 Belton had been a passenger in a car whose driver had been pulled
over for speeding. He ended up convicted ofcocaine possession. Thetrooper had smelled and
then found marijuana in thecar, which led him to put everyone in thecar, including Belton,
under arrest for marijuana possession. Incident to that arrest for possessionoffense number 1,
thetrooper then searched theentire car. It was then and there that he found cocaine in a zipped
pocket ofBelton's jacket on thebackseat. Hence Bel

ton's connection to thesecond, and far more serious, possessionoffense.

It doesn't take a full blown arrest, however, to generate possessionevidence-and therefore
possessionconvictions. Mini-- arrests called Terry "stops" will do. In 1968, theSupreme Court
permitted police officers to detain suspects, however briefly, without probable cause-never
mind a warrant.176 That case was Terry v. Ohio. Terry was a possessioncase, though a quaint
one compared with today's possessionproliferation. Terry and two others had been "stopped
and frisked"-to use theCourt's technical description oftheir mini-arrest and search-by a police
officer on thebeat who suspected they were casing a store for a burglary. The"frisk" turned up
guns onTerry and another of themen. They were convicted, not ofattempted burglary, but
ofcarrying a concealed weapon, "and sentenced to thestatutorily prescribed term ofone to
three years in thepenitentiary." Such a convenient method ofincapacitation was sure to catch
onin the war on crime.

And it did. Soon officers en masse were discovering suspicious bulges in the"outergarments"
ofTerry friskees. In Terry, police detective Martin McFadden at least had found what he was
looking for, a gun. But once a frisking officer is patting down a suspect, there's no telling
what contraband he might come across. So theexploration ofbulges in search of"weapon--
like objects" soon began turning up not only weapons but a panoply ofother illegally
possessed items, including drugs (ofcourse) 177 and lottery slips, in NewJersey.178

And just like full fledged arrests, Terry mini-arrests work well with traffic stops that don't
blossom into a "custodial arrest," as they did in Belton. Theseminal case ofPennsylvania v.
Mimms nicely illustrates thefamiliar chain ofevents leading from traffic

stop to bulge to frisk to gun possessionto a prison sentence.179 TheSupreme Court's rendition
is too full of thestandard technical lingo to pass up:

While onroutine patrol, two Philadelphia police officers observed respondent Harry Mimms
driving an automobile with an expired license plate. Theofficers stopped thevehicle for
thepurpose ofissuing a traffic summons. One of theofficers approached and asked respondent
to step out of thecar and produce his owner's card and operator's license. Respondent
alighted, whereupon theofficer noticed a large bulge under respondent's sports jacket. Fearing
that thebulge might be a weapon, theofficer frisked respondent and discovered in his
waistband a .38-- caliber revolver loaded with five rounds ofammunition. Theother occupant
of thecar was carrying a .32-caliber revolver. Respondent was immediately arrested and
subsequently indicted for carrying a concealed deadly weapon and for unlawfully carrying a
firearm without a license.180

"Armspans" play a role in frisks incident to stops as they do in searches incident to arrests.
And once again, theCourt has found a way to extend that span to include theinterior ofcars in
traffic stops. In Michigan v. Long,181 decided six years after Mimms, theCourt applied Terry
to thefollowing connection between possession-in this case ofdrugs-and a routine traffic
violation-in this case speeding. Once again in thevernacular of lawenforcement, here is
theCourt's account of thechain ofevents, culminating in Long's conviction ofmarijuana

Deputies Howell and Lewis were onpatrol in a rural area one evening when, shortly after
midnight, they observed a car traveling erratically and at excessive speed. Theofficers
observed thecar turning down a side road, where it swerved off into a shallow ditch.
Theofficers stopped to investigate.

. . .After another repeated request [to produce his registration], Long, who Howell thought
"appeared to be under theinfluence ofsomething," turned from theofficers and began walking
toward theopen door of thevehicle. Theofficers followed Long and both observed a large
hunting knife on thefloorboard of thedriver's side of thecar. Theofficers then stopped Long's
progress and subjected him to a Terry protective patdown, which revealed no weapons.

Long and Deputy Lewis then stood by therear of thevehicle while Deputy Howell shined his
flashlight into theinterior of thevehicle, but did not actually enter it. Thepurpose ofHowell's
action was "to search for other weapons." Theofficer noticed that something was protruding
from under thearmrest on thefront seat. He knelt in thevehicle and lifted thearmrest. He saw
an open pouch on thefront seat, and upon flashing his light on thepouch, determined that it
contained what appeared to be marihuana. After Deputy Howell showed thepouch and its
contents to Deputy Lewis, Long was arrested for possession ofmarihuana. A further search of
theinterior of thevehicle, including theglovebox, revealed neither more contraband nor
thevehicle registration. Theofficers decided to impound thevehicle. Deputy Howell opened
thetrunk, which did not have a lock, and discovered inside it approximately 75 pounds
ofmarihuana. 182

Long got away with a sentence oftwo years probation, a fine of$750, and court costs
of$300.183 That was in 1978, in a Michigan state court. In today's coordinated federal-state
police regime, possessionoffenses carry a much heavier incapacitative stick. In federal court,
possession ofseventy-five pounds ofmarijuana would get him between thirty-one and forty-
one months ofreal prison time, without parole, assuming he had a clean record.184 But
federal intervention wouldn't have been necessary. In Michigan state court today, he would
face "imprisonment for not more than 7 years or a fine ofnot more than $500,000.00, or
both."185 Michigan, after all, is theland ofHarmelin, thecase in which theSupreme Court
upheld a mandatory sentence oflife imprisonment without thepossibility ofparole for simple
drug possession.186

Police understand theconnection between traffic violations, Terry, and possessionoffenses
very well. Long before Terry, theSupreme Court aided another war on possession-ofliquor-by
carving out theautomobile exception to theFourth Amendment's warrant requirement. In
the1925 case ofCarroll v. United States,187 theCourt was so impressed with themobility of
the"automobile" that it did away with therequirement that a

police officer get a warrant to search a car he thought might contain contraband, to wit liquor;
by thetime he showed up with thewarrant, thecar-unlike themore familiar, and stationary,
houses-might be long gone. Carroll was suspected, and convicted, of"transportation or
possession ofliquor."
Seventy-five years later, police are not limited to pulling over and searching cars they suspect
contain evidence ofillegal possession. Instead, they are just as likely to pull over cars for
something entirely different and then bootstrap themselves into a search of thecar for that all-
important possessionevidence. Theofficer in Carrol4 after all, still needed probable cause to
search thecar for liquor. Theautomobile exception is an exception to thewarrant requirement,
not to theFourth Amendment altogether.

As a result, thecar search-possessionjurisprudence of the war on crimeoften has been about
everything but possession. It has been about broken tail lights, expired registration stickers,
touched divider lines, rolled-through-stop signs, improperly signaled turns, and, ofcourse,
speeding. There are many possessionoffenses. And there are many who commit
possessionoffenses every day. But there are even more traffic offenses, and millions ofthem
are committed every minute.

Nothing's easier than cruising down thestreet, or staking out a highway, and developing
probable cause that someone has committed a traffic infraction. And armed with that
probable cause, a police officer can stop a car, and eventually search its occupants, and thecar
itself, happening upon possessionoffense evidence along theway.

But that's not all. Since 1968, thepolice don't need probable cause that an offense-including a
traffic infraction-has been committed. Since Terry, "reasonable suspicion" will do. And once
stopped, cars and their occupants have a tendency ofbeing searched, and yielding

More recently, theSupreme Court has made theleap from car stop to possessionevidence even
easier. In 1976, theCourt began authorizing police officers to stop cars without any suspicion
ofany kind, not reasonable suspicion, not probable cause, as long as thestop qualified as a
"roadblock" for routine checks ofthis and that-illegal aliens,188 driver's license,189
registration,190 and DWI.191

No matter how theinitial stop (or arrest) occurs, theso-- called plain view exception to
theFourth Amendment comes in handy in order to transform this encounter between police
and citizen into an instance of possessionpolice. If a police officer has a right to be where he
is, he has a right to see what he sees-- and feel what he feels-192 hear what he hears,193 or
smell what he smells.194 In thecase ofa traffic stop, what he sees often enough is evidence
ofillegal possession. The"plain view" exception was first recognized in 1971, in a murder
case.195 But it was significantly expanded for use in the crime warin 1983, in yet another
possessioncase. In Texas v. Brown,196 theCourt did away with therequirement that the
criminalnature of theitem seized in plain view be immediately apparent. Since Brown,
thepolice merely need probable cause to believe that theitem is contraband. Brown had been
stopped at "a routine driver's license checkpoint" in Fort Worth, "[s]hortly before
midnight."197 When theofficer shone theever present flashlight into Brown's car, he noticed
"between thetwo middle fingers of thehand . . . an opaque, green party balloon, knotted about
onehalf inch from thetip," which turned out to contain heroin. Brown pled nolo contendere to
heroin possessionand received four years in prison "pursuant to a negotiated plea

It makes no difference whether thepolice officer used thetraffic violation as a mere pretext to
finding evidence ofsome other offense, possessionoffenses in particular. Thepolice offi
cer's subjective intent is irrelevant. In 1996, theSupreme Court removed any doubt onthis
issue in another possessioncase, Whren v. United States.2w There plain-clothes members ofa
drug task force developed a serious interest in traffic enforcement when they noticed that a
car whose occupants they suspected ofpossessing drugs was driving off at an "unreasonable
speed." Their hunch turned out to be correct-it always does in court opinions-and thedriver
and passenger were convicted ofdrug possession.

Terry has proved enormously useful to the war on crimeas a war on possession. It authorizes
police officers to put their hands onsuspects without probable cause. And this laying on
ofhands is enough to provide conclusive evidence of possession, even if nothing else sticks.
Without Terry, possessionwouldn't be theuniversal velcro charge it is today, which sticks
when nothing else will.

As a final example, take therecent case ofIllinois v. Wardlow.201 There, theSupreme Court
decided that behavior in a "high crimearea" may give rise to thereasonable suspicion required
for a Terry stop even if thesame behavior wouldn't have been suspicious elsewhere. This
decision was warmly welcomed by police organizations and heavily criticized by civil rights
groups. In themelee, thefact that Wardlow was convicted ofa possessionoffense received
scant attention. It didn't help that theSupreme Court reported that Wardlow had been
convicted ofusing a weapon. TheIllinois statute in question, though entitled "unlawful use or
possessionweapons by felons. . . ," actually criminalizes themere possession ofa weapon,
without more. 202

Wardlow nicely illustrates thepotential of possessionas a sweep offense, as thefavored
incapacitation broom of the war on crime. Police officers descend on"high crimeareas," either
in coordinated raids or in casual cruise-throughs, in thehope offinding evidence of
possessionoffenses. In thecase ofa raid, that evidence emerges in thecourse of theexecution
ofa search warrant or an arrest warrant, with theinevitable search incident. In thecase ofa
regular patrol, it reveals itself through personal observation ("bulges"), informer tips, or
through frisks incident to Terry stops. Theitems illegally possessed tend to be drugs or

guns (as in Wardlow), or both; drug and gun possessionoffenses pack thegreatest
incapacitative punch. And in a "high crimearea," they aren't hard to come by. In New York
City alone, thenumber ofillegal guns is estimated to be between one and two million.203

Still, for searches incident to arrests and frisks incident to stops, police officers need to be
able to articulate some (legitimate) reason for focusing their investigative attention ona
particular person: probable cause and reasonable suspicion, respectively-except, ofcourse, if
their initial stop is part ofa "roadblock." There's no need for this type ofrationalization in
another common source of possessionevidence: consensual searches. TheSupreme Court
approved suspicionless consent searches in 1973, in Schneckloth v. Bustamonte, and held
that officers asking for consent didn't have to tell suspects that they had theright to say no.204
Schneckloth was another possessioncase, and the possessionevidence was found after another
"routine" traffic stop, this time for a burned out headlight and license plate light. Only thetype
of possessionoffense differed from therun-of-the-mill drug-cum-gun possessioncase. What
thepolice found "[w]added up under theleft rear seat" were three checks. And what
Bustamonte was convicted ofwas "possessing a check with intent to defraud."

Needless to say, in thedecades since Schneckloth, police officers have been finding more than
stolen checks during their consent searches. In Supreme Court cases, as well as presumably in
real life, they tended to find drugs and guns, and especially drugs.205 That's not to say,
however, that only illegally possessed drugs and guns turned up. Thevariety of
possessionoffenses available to themodern police officer insured that, even among thesmall
sample ofSupreme Court cases, there was also a case ofillegal possession ofstolen mail.206

That possessioncase from 1976, United States v. Watson, made its own significant
contribution to the war on crime.

There, theSupreme Court for thefirst time declared that theFourth Amendment didn't stand in
theway ofpublic arrests without a warrant. In and ofitself, that authority is a convenient
weapon in thehands ofpolice officers ferreting out crime. As we've seen, however, it also has
theindirect advantage ofjustifying searches incident to warrantless street arrests: every arrest
is also an armspan search-plus a "protective sweep." And "searches incident" have a tendency
to reveal evidence of possessionoffenses, especially since theCourt has taken an expansive
view ofwhat an arrestee's arm might reach.

After Watson, police officers once again were more likely to stumble upon drugs than stolen
mail in their searches incident to warrantless public arrests. In United States v. Santana,207
for example, thepolice arrested a suspect on the"curtilage" ofher home without a warrant.
Thesearch incident produced, among other things, "two bundles ofglazed paper packets with
a white powder." Santana was convicted of possession ofheroin with intent to distribute.

But possessionevidence doesn't just happen to crop up incident to arrests or stops for other
offenses, traffic or not. Although it's very effective as a piggyback offense, possessionis
much more than that. It can itself be theoffense that justifies theinitial police intervention.
Themyriad of possessionoffenses therefore also means that police officers have a myriad
ofjustifications for approaching, stopping, or arresting a suspect.

That's what happened in Watson, for example. An informer had told a postal inspector that
Watson, a mailman, was in themidst ofcommitting a possessionoffense, specifically that he
"was in possession ofa stolen credit card." That's also what happened in therecent case
ofFlorida v. J. L., where an anonymous informer called theMiami police department to report
that "a young black male standing at a particular bus stop and wearing a plaid shirt was
carrying a gun." J. L. was Terry stopped-and-frisked, and charged with "carrying a concealed
firearm without a license and possessing a firearm while under theage of18."208

No Supreme Court case, however, better illustrates theinitial justificatory, and theindirect
piggyback, function of possessionoffenses in the war on crime, as well as theinterplay

between different possessionoffenses, than 1972's Adams v. Wil liam. An informer-there tend
to be lots ofinformers in victimless possessioncases-had told a police officer onpatrol that "an
individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist," i.e.,
that he was engaging in two possessionoffenses at thesame time, drug possessionand gun
possession. Here's what happened next:

After calling for assistance onhis car radio, Sgt. Connolly approached thevehicle to
investigate theinformant's report. Connolly tapped on thecar window and asked theoccupant,
Robert Williams, to open thedoor. When Williams rolled down thewindow instead,
thesergeant reached into thecar and removed a fully loaded revolver from Williams'
waistband. Thegun had not been visible to Connolly from outside thecar, but it was in
precisely theplace indicated by theinformant. Williams was then arrested by Connolly for
unlawful possession of thepistol. A search incident to that arrest was conducted after other
officers arrived. They found substantial quantities ofheroin onWilliams' person and in thecar,
and they found a machete and a second revolver hidden in theautomobile.

After a bench trial (possessionoffenses are very rarely tried before a jury), Williams was
convicted ofone drug and two gun possessionoffenses: "having narcotic drugs in his control,"
"carrying a pistol onhis person without a permit," and "knowingly having a weapon in a
vehicle owned, operated or occupied by him. Theevidence for thegun possessioncounts
stemmed from theinitial Terry stop-and-frisk. And theevidence for thedrug possessioncount
turned up during thesearch incident to arrest based on theresults ofthat frisk.

Searches resulting from investigations into ongoing possessionoffenses ofcourse can produce
evidence not only ofother possessionoffenses, but ofany other offense. Finding evidence of
possessionoffenses is simply more convenient. It's self-- evident, whereas other evidence is
merely circumstantial. And thechances offinding other possessionevidence are so much
greater than thechance offinding evidence ofother crimes. As thecourts, including
theSupreme Court, are fond ofpointing out, drug and gun possessiontend to go hand in hand.
Whoever has drugs is likely to have a gun, and-at least in so-called

high crimeareas-vice versa. As theCourt explained in Wardlow, "it [is] common for there to
be weapons in thenear vicinity ofnarcotics transactions." That's why theofficers in Wardlow
found a gun, even though they were ostensibly looking for drugs, or rather "converging onan
area known for heavy narcotics trafficking in order to investigate drug transactions."211

Either way, as theboot or thestrap, possessionoffenses are particularly convenient
policinginstruments because they are continuous, across space and time. As we'll see in
greater detail below, possessionoffenses are continuous across space in that they can be
committed in public or in private. As a result, they have always justified state intrusion into
theprivate sanctuary of thehome-castle. But they're also continuous across time. Thewhole
point ofcarrying a gun, for instance, or keeping it at home or in thecar is to have it around
when theneed might arise. Gun possessiontherefore can continue for hours, days, even weeks,
months, years, or decades, depending onhow insecure thepossessor is without his possession.
And at any time during this period, theillegal possessor exposes himself to police intervention
ofvarious levels ofintrusiveness, culminating in an arrest, with its inevitably incident search.
He is a constant policingtarget, subject to incapacitation at any moment, day or night.

As we can see from our brief survey of possessionpolice in theSupreme Court, theCourt's
criminalprocedure jurisprudence since Terry represents an increasingly explicit effort to tap
thefull potential of possessionas a general policingtool. With remarkable frequency, theCourt
has found ways to legitimize possessionsearches and seizures in an ever increasing variety

But not only therecurrence of possessionoffenses among decisions loosening constitutional
safeguards in theinterest of crimecontrol is remarkable, so is thesheer number of
possessioncases that have found their way before theCourt, hinting at thefrequency of
possessioncases in criminalcourts throughout theland. In thethirty-odd years since Terry,
theSupreme Court has written opinions in give or take 150 cases that involved one
possessionoffense or another, in one way or another. Among these opinions are not only most
of theCourt's important Fourth Amendment opinions, but also several significant opin
ions in other doctrinal areas, not only in criminalprocedure but elsewhere as well.

As theinvestigatory tool par excellence, possessionhas left its greatest mark on
theconstitutional law ofpolice investigation. Thelist ofFourth Amendment/possessioncases
since Terry reads like a who's-who ofsearch and seizure law:

Thelist of possessionrelated Fourth Amendment classics is complete once we look past Terry
and back to Carroll the1925 opinion that established theautomobile exception in a liquor
possessioncase. Although thefifty-plus years between Carroll and Terry produced "only"
fifty-plus Supreme Court opinions in possessionrelated cases, foundational opinions like
Mapp (applying theexclusionary rule to thestates) and Aguilar (thefirst half of theAguilar-
Spinelli test, to be undone some twenty years later in Gates, another possessioncase), remind
us that the war on crimedidn't invent possessionoffenses; it just used them to greater effect.
Here are some of theFourth Amendment chestnuts of thepre-Terry era:212

Although possessionoffenses were most likely to crop up in Fourth Amendment cases, their
ubiquity ensured that they also appeared in other constitutional-and non-constitutional-
contexts. Non-Fourth Amendment cases involving possessionincluded:

In roughly chronological order, possessionoffenses thus appeared in opinions dealing with, in
addition to thenever ending issues raised by theFourth Amendment, evidentiary presumptions
(due process), vagueness (due process), conspiracy (substantive criminal law), First
Amendment (constitutional law), burden ofproof (due process), right to a jury trial (Sixth
Amendment), statutory interpretation (substantive criminal law), habeas corpus (federal
courts), Fifth Amendment (due process & self-incrimination), Sixth Amendment (right to
counsel), Eighth Amendment (cruel and unusual punishment), mens rea (substantive criminal
law), insanity (substantive criminal law), Commerce Clause (constitutional law), sentencing
guidelines (substantive criminal law), lenity (constitutional law), parole conditions (law
ofpunishment), double jeopardy (constitutional law), ex post facto (constitutional law), and
prosecutorial argument (law ofevidence).

That a possessionoffense appears in an opinion, no matter what its official subject matter, is
significant for two reasons. De facto, it illustrates theubiquity of possessionoffenses and their
frequent and varied use. De jure, it may tell us something about why this is so, why there are
so many possessionoffenses, and why they are so popular as policingtools.

Not only thenumber, but also thevariety, of possessionrelated cases is impressive. As one
might expect, most cases involved the possession ofdrugs and related "paraphernalia" (or
ofliquor, during Prohibition), followed by gun possession. But other cases provided glimpses
at other offenses in the possessiongrab bag available to American police at a particular time
in American history, including, in chronological order, possession of:

When we look more closely at theCourt's possessionopinions, we can detect thefunction and
impact of possessionoffenses for various policingefforts throughout thetwentieth century,
culminating in their extensive use during the war on crime. The1939 Lanzetta case, for
instance, reveals theusefulness of possessionoffenses as a device for identifying and
incapacitating undesirables.222 Thestatute at issue in this classic vagueness case was very
explicit about its incapacitative aim:223

1. A gangster is hereby declared to be an enemy of theState.
2. Any person in whose possessionis found a machine gun or a submachine gun is declared to
be a gangster: provided, however, that nothing in this section contained shall be construed to
apply to any member of themilitary ofnaval forces ofthis State, or to any police officer of
theState or ofany country or municipality thereof, while engaged in his official duties.

3. Any person, having no lawful occupation, who is apprehended while carrying a deadly
weapon, without a permit so to do, and who has been convicted at least three times ofbeing a
disorderly person, or who has been convicted ofany crime, in this or in any other State, is
declared to be a gangster.

4. Any person, not engaged in any lawful occupation, known to be a member ofany gang
consisting oftwo or more persons, who has been convicted at least three times ofbeing a
disorderly person, or who has been convicted ofany crime, in this or in any other State, is
declared to be a gangster; provided, however, that nothing in this section contained

shall in any wise be construed to include any participant or sympathizer in any labor dispute.

5. Any person convicted ofbeing a gangster under theprovisions ofthis act shall be guilty ofa
high misdemeanor, and shall be punished by a fine not exceeding ten thousand dollars
($10,000.00), or by imprisonment not exceeding twenty years, or both.

TheLanzetta statute was a classic instrument for themass neutralization ofperceived threats,
"enemies of thestate." And possessionoffenses, coupled with classic vagrancy (of
the"disorderly persons" variety),ZZa fit thebill. Quickly detected, easily proved, and harshly
punished, gun possessionwas theideal weapon against those "declared to be a gangster."

Pinkerton illustrates thesort ofdisrespect for theconstraints oflegality that was to characterize
the crimeextermination campaign of the war on crime.225 In this infamous conspiracy case
from 1946, theCourt turned a blind eye to thesweeping use ofconspiracy lawfor thepurpose
ofdestroying criminalenterprises. By holding every "member" ofa conspiracy liable for
thesubstantive crimes ofany other member, theCourt equipped lawenforcement officials
combating underground criminalconspiracies with a powerful weapon to strike at thevery
heart oftheir enemy. Minor players could now be held vicariously liable for theacts ofmajor
ones. Facing serious punishment for acts they hadn't committed, theformer could be turned
against thelatter, thus cracking thegroup.

Possessionoffenses spring from thesame attitude of crimesuppression by any means
necessary, borne ofa perception of criminal lawas thestruggle against an alien threat.
Possessionprovides state officials with a flexible policingtool, and flaunts almost every
principle of criminal lawalong theway, including theact requirement, theprohibition ofstatus
offenses, thegeneral resistance to omission liability, themens rea requirement and theprinciple
ofpersonal-as opposed to group-liability.

Combining conspiracy and possession, as in Pinkerton, produces a formidable policingtool.
Conspiracy is an inchoate crime, i.e., a crimethat inflicts no harm. So is possession. A

conspiracy to possess, thus, is an inchoate inchoate crime. Specifically, it is a plan to engage
in a nonharmful nonact, or to share in a state, that ofpossessing something that may be used
in a harmful way.
Like conspiracy, possessionoffenses also have been used to impose liability onentire groups
ofpeople. Whereas the law ofcomplicity has long been careful to remind itself that mere
presence does not an accomplice make, the law of possessionhas had no difficulty imposing
liability onthat very basis. We've already noted that being in thepresence ofcontraband is
enough to establish a presumption of possession.227 Possession, therefore, often becomes a
group affair, with everyone in a room, or everyone in a car, being found in possession ofa
gun, or a baggie ofmarijuana.

Lanzetta and Pinkerton illustrate theuse of possessionoffenses to police groups perceived as
threatening to thestate, gangsters, and "conspiracies," respectively. The1965 case ofStanford
v. Texas shows how possessionoffenses can be employed against a particular type ofgroup, a
political party. By criminalizing the possession of"books, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings and other written instruments concerning
theCommunist Party ofTexas, and theoperations of theCommunist Party in Texas,"228 Texas
authorized state officials to rummage through thehomes ofsuspected sympathizers, so as to
nip theCommunist threat in thebud. Themere possession ofthis explosive literature
represented thefirst step along a continuum that was sure to lead from distribution to agitation
and, eventually, to revolution.

It's no surprise, then, that so-called profiles should play such an important role in policing
possession. Possessionoffenses are committed by certain people who fit a certain image. An
item that is perfectly harmless in thehands ofa decent member ofsociety becomes a threat to
thesurvival ofthat society in thehands ofan outsider. In this respect, it's thepossessor who
makes the possession criminal. And possessionmerely provides theformal justification,
thepretext, for theharassment ofpersons who are suspicious because oftheir membership in
some group that remains ill-defined precisely because its distinguishing characteristic is its
difference from theingroup, the

society whose safety thestate is charged with protecting against outside threats. Profiles are
post hoc attempts to justify an ad hoc suspicion whose true basis remains hidden, often even
to theperson harboring it. Nonetheless, theSupreme Court has not stood in theway of
thewidespread use ofprofiles in the crime wareffort.229

The war on crimewould have been impossible without a dramatic expansion offederal
criminal law. Conceived as a presidential police action, the war on crimebecame a national
crimesuppression campaign through a remarkable expansion offederal criminal lawand
theclose coordination offederal and state criminal law. The possessioncases before
theSupreme Court bear witness to both phenomena. On thesubject ofexpanding federal
criminal law, theCourt has proved remarkably reticent. For instance, much ofits
(nonconstitutional) jurisprudence onmens rea (and ignorance of law) can be found in opinions
narrowly construing federal possessionstatutes, and gun possessionstatutes in particular.230
Again and again, theCourt was surprisingly receptive to theargument that a statute
criminalizing "knowing" possession ofa weapon required theprosecution to prove not only
that thepossessor knew he was possessing a certain gun (a mens rea issue), but also that he
knew that knowingly possessing that particular gun was illegal (an ignorance of lawissue). In
theface of theage old common lawmaxim that ignorance of the lawis no excuse, this
receptivity may well reflect a general uneasiness with thefederal government's assumption of
criminallawmaking powers traditionally reserved for thestates. In its uneasiness, theCourt
even found itself invoking theprinciple oflenity, which provides that ambiguous
criminalstatutes are to be interpreted in favor of thedefendant, a principle it had no difficulty
ignoring onother occasions. 231 Quiet discomfort recently turned into open obstruction, when
theCourt dusted off thecommerce clause to strike down a federal statute criminalizing gun
possession, in this case gun possessionnear a school.232

Still, theCourt's occasional resistance to theexpansion offederal criminal law, and offederal
criminal possession lawin particular, should not be mistaken for unwillingness to further the
crime wareffort in general. The war on crime, after all, is not being fought with federal
lawalone, and even thefederal arsenal of possessionoffenses is hardly depleted by theloss
ofan offense as inconsequential as theprohibition ofgun possessionnear a school. Who needs
a federal offense like that if a state offense ofsimple drug possession, anywhere and anytime,
calls for a mandatory life sentence without thepossibility ofparole?233

And if thestate sentence is not enough, thecoordination ofstate and federal crimesuppression,
combined with theinapplicability ofdouble jeopardy to punishment by separate sovereigns,
allows for theextension ofincapacitation, if necessary. TheCourt has done its share to
facilitate this coordination, as illustrated by therecent case ofUnited States v. Gonzales.234 A
popular federal statute, 18 U.S.C. (sec) 924(c), provides that "any person who, during and in
relation to any crime ofviolence or drug trafficking crime... uses or carries a firearm ... shall,
in addition to thepunishment provided for such crime ofviolence or drug trafficking crime...
be sentenced to a term ofimprisonment ofnot less than 5 years ...."235 Thestatute further
specifies that "no term ofimprisonment imposed ona person under this subsection shall run
concurrently with any other term ofimprisonment imposed on theperson."

Gonzales and two others had been sentenced in state court to prison terms from thirteen to
seventeen years for drug offenses and having pulled guns onundercover officers during a
"drug sting operation." While in state prison, they were indicted in federal court for thesame
conduct and convicted, once more, ofdrug offenses---including possession-and of"using
firearms during and in relation" to these crimesin violation ofsection 924(c). There, they
"received sentences ranging from 120 to 147 months in prison, ofwhich 60 months reflected
themandatory sentence required for their firearms convictions." TheTenth Circuit held that
thesixty months for thefirearms offenses could run concurrently, rather

than consecutively, to thedefendants' state and federal sentences for thedrug offenses.236

TheSupreme Court reversed, however, deciding that Congress meant what it said when it
provided that a 924(c) sentence shall not run concurrently with any other term
ofimprisonment, whether imposed by a state or a federal court. As a result, thefederal-state
collaboration in this case resulted in an additional five-year period ofincapacitation for three
"drug offenders" who had threatened federal officers.

Gonzales and his partners in crime, however, got off easy. In its current form, section 924(c)
mandates not only a five-year minimum sentence for gun possessionduring a drug or violent
crime, but also a twenty-five year minimum sentence for "a second or subsequent conviction
under this subsection."237 That second conviction, however, can result from thesame plea
agreement (or trial, should there be one). Enterprising Assistant U.S. Attorneys fighting the
war on crimetherefore can dramatically expand 924(c)'s incapacitative potential-six-fold,
from five to thirty years-by tying the possession ofa single weapon to different counts arising
out ofa single drug transaction, such as distribution and possession. Thefirst five years would
be for possessing a gun in connection with thedrug offense ofdistribution, and thesecond
twenty-five for possessing thesame gun in connection with thedrug offense of possession.
And that mandatory thirty-year sentence would be tacked onto whatever other sentence
thecourt imposed for thetwo drug offenses (distribution and possession), ontop ofany state
sentence imposed for thesame offenses, as Gonzales found out. In a recent case out
ofRochester, New York, this multiple possessionbootstrapping strategy (from drug
possessionto gun possessionto second gun possession(of thesame gun)) netted theprosecutor a
sentence of477 months, or roughly forty years.238

When theSupreme Court does resolve an issue in a way that might be perceived as interfering
with theexecutive flexibility required for an effective anti-crimecampaign, Congress steps in
to iron out thewrinkles. In Gonzales, thedrug offenders were charged with "using" a gun. In
an earlier case, Bailey v. United States, theSupreme Court had decided, quite sensibly but

against several circuits, that "mere" possessiondidn't amount to "use" for purposes ofsection
924(c).239 Congress quickly corrected this misunderstanding by amending section 924(c)
explicitly to include "any person who, during and in relation to any crime ofviolence or drug
trafficking crime. . . , in furtherance ofany such crime, possesses a firearm," thus at thesame
time re-elevating possessionto its proper status in the war on crimeand rendering theold "uses
or carries" clause superfluous.240

Thedeclaration that "possession" wasn't "use" under section 924(c) didn't mean that
possessionalone wouldn't result in a higher sentence. This two-track approach to
thesignificance ofgun possessionin drug offenses, denying it on theone hand while affirming
it on theother, was made possible by another important prong of the war on crime, thefederal
sentencing guidelines, which helped coordinate the crime war, both within thefederal system
and without, and gave its incapacitative measures thenecessary bite. For already at thetime
ofBailey, therelevant sentencing guideline provided for a two-level enhancement for drug
offenses, including possessionwith intent and simple possession, "[i]f a dangerous weapon
(including a firearm) was possessed."241

Themandatory federal sentencing guidelines made a comprehensive federal war on
crimepossible by keeping federal judges in line, some ofwhom might have been tempted to
blunt theincapacitative blow ofparticular provisions. And theSupreme Court significantly
enhanced theguidelines' coordinating potential, by first upholding theguidelines against a host
ofconstitutional attacks and then declaring their every word, from guidelines to policy
statements to commentary, to constitute binding authority on thefederal courts.242

Thefederal guidelines, however, also contributed to the wareffort beyond theborders offederal
criminal law. They helped initiate, and backed by federal grants significantly shaped, a
national move toward determinate sentencing. Even if thefederal

guidelines themselves could not be exported to thestates for thesimple reason that federal
lawdiffered from state law, their concept ofcontrolling judicial sentencing authority could be,
and was. As a result, not only thefederal government, but also state governments, could
implement their crime warinitiatives without undue interference from thejudiciary, no matter
how timid and sporadic.

Thefederal guidelines, however, were not only mandatory. They also were Draconian.
Theelimination ofparole alone-- under theheading of"honesty in sentencing"-dramatically
expanded theincapacitative potential ofexisting criminal law. Theguidelines created a
criminal lawbehind, or rather beneath, the criminal law, a system ofpunishment that operated
beyond constitutional constraints. They reflected a general shift from the law of crimesto the
law ofpunishments, from conviction to sentencing. In this system, theprecise nature of
theoffense ofconviction mattered less and less, and sentence enhancements mattered more
and more. What a defendant was convicted ofbecame less important than thefact that he was
convicted ofsomething, which then marked him for incapacitation to thegreatest extent
possible. That extent in turn was determined by sentence enhancements, chief among them
enhancements for gun possession.


Section 924(c), thefederal sentence premium for gun possessionin furtherance ofa "drug
trafficking crime" (including possession) as well as of"any crime ofviolence," merely
illustrates a more general incapacitative strategy ofusing possessionindirectly to increase
theincapacitative potential ofa given conviction. In this indirect use, gun possessionin
particular ensures that dangerous offenders stay off thestreet longer than they otherwise
would have.

As we have seen, theversatility of possessionas an instrument ofthreat suppression is
remarkable. So far we have focused onone application of possessionoffenses, their direct use
as theoffense ofarrest and conviction, even if it is only as thefall back velcro charge that
always sticks, for thesimple reason that possessionis as easy to detect as it is to prove.
Possession, however, has many other indirect uses as well.

1. Aggravation

Themost obvious indirect use of possessionis as an aggravating or predicate element in
another offense or as a sentence premium, which amounts to thesame thing: thefact of
possessionincreases theincapacitative potential of theunderlying offense. This technique is
particularly popular in thecase ofgun possession. Our modern statute books overflow with
offenses whose severity is enhanced by theaddition ofproof-either at trial or at sentencing-
ofgun possession. For instance, theoriginal federal carjacking statute was defined in terms
ofgun possession: "Whoever, possessing a firearm takes a motor vehicle .... ."243 In New
York, one variety offirst degree trespass requires that theoffender "[p]ossesses, or knows that
another participant in the crimepossesses, an explosive or a deadly weapon."244 "Felonin
Possession ofa Firearm," a federal felony, is among thepredicate offenses that can add up to a
RICO violation. 24 And thefederal sentencing guidelines provide for harsher sentences in
cases ofminor assault ("if a dangerous weapon (including a firearm) was possessed and its
use was threatened"246) and stalking ("possession, or threatened use, ofa dangerous

In general, legislatures prefer to use gun possessionas a sentence enhancement, rather than as
an offense element. That way, theprosecutor can make full use of theincapacitative potential
of possessionwithout having to establish it under theburden ofproof at trial (beyond a
reasonable doubt), should there be a trial. Instead, thejudge can enhance thesentence ofter
conviction, or more likely a guilty plea, upon a showing of possessionby a mere
preponderance of theevidence. In 1986, theSupreme Court explicitly endorsed this
circumvention ofconstitutional constraints on criminallawmaking, in McMillan v.
Pennsylvania,248 showing remarkable deference to thelegisla
ture's classification ofgun possessionas a sentencing factor, rather than as an offense element,
in theprocess.

Possessionoffenses serve to extend-or replenish-theincapacitative potential ofconvictions
(which ofcourse may be for possessionoffenses themselves, as in thecase ofdrug
possessionunder section 924(c)) not only at sentencing, but also at later points in thelife ofa
person who has been marked as a threat to society. Most immediately, possessionoffenses are
used to police-and if possible, to further incapacitate-persons under supervised release (parole
and probation), four million by last count. Federal law, for instance, mandates therevocation
ofsupervised release if a "defendant... possesses a controlled substance . . . [or] possesses a
firearm . . . in violation ofFederal law, or otherwise violates a condition ofsupervised release
prohibiting thedefendant from possessing a firearm . . . ."249

Next and most intrusively, possessionoffenses play an important role in the policing of the-
roughly two million-people under supervised nonrelease, prison inmates. In prison,
theprohibition of possession-as a matter ofprison discipline-- helps complete
theincapacitation ofhuman threats during their period ofincarceration and, if necessary,
allows theextension ofthat period-as a matter of criminal law. Prisoners are considered so
dangerous that they are presumptively prohibited from possessing anything. In thehands ofa
prison inmate, anything is a dangerous weapon. A prison inmate cannot be trusted to possess
themost innocuous items, including toothbrushes, coat hangers, and radio antennas.
(Possessing telescoping radio antennas, for example, is forbidden "because they might be
turned into `zip guns.' By inserting a bullet into thebase ofan extended antenna and then
quickly compressing it, an inmate could fire theinaccurate but still potentially deadly
gun.")250 Anything in the possession ofa prison inmate, through mere association with this
human threat, becomes tainted. That taint can only be removed by an affirmative license
granted by theadministrator of theprison, theprison police.

Prison management is threat management. And thefirst line ofdefense against prisoner-threats
is theprohibition ofpos

session, except as permitted by theprison police. As Ted Conover reports, prisoners at Sing

[T] hey couldn't possess clothing in any of thecolors reserved for officers: gray, black, blue,
and orange. They couldn't possess cash, cassette players with a record function, toiletries
containing alcohol, sneakers worth more than fifty dollars, or more than fourteen newspapers.
Thelist was very long-so long, in fact, that theauthors ofStandards ofInmate Behavior found it
easier to define what was permitted than what wasn't. Contraband was simply "any article
that is not authorized by theSuperintendent or [his] designee." 251

As with their analogues in theoutside world, however, these prison possessionprohibitions are
violated every minute ofevery day. In fact, themore categorical a possessionprohibition gets-
and it can't get any more categorical than that applied to prisoners-theless categorical its
enforcement tends to become. In Sing Sing, for example, where Conover worked as a prison
guard, guards were as likely to violate the possessionprohibitions applying to them as
prisoners were to violate their own. In prison, guards were barred from possessing "glass
containers, chewing gum, pocket knives with blades longer than two inches, newspapers,
magazines, beepers, cell phones, or ... our own pistols or other weapons."252 Thereason for
this prohibition was, once again, theconstant threat personified by theprisoners, rather than by
theguards themselves: "A glass container, such as a bottle ofjuice, might be salvaged from
thetrash by an inmate and turned into shards for weapons."253 Plus, smoking was prohibited
indoors, whether by inmates or guards. But, according to Conover, officers didn't pay much
attention to these rules: "[P]lenty ofofficers smoked indoors. Many chewed gum. Thetrash
cans ofwall towers were stuffed with newspapers and magazines."254

Needless to say, prisoners found it even more difficult, if not downright impossible, to
comply with thefar stricter possessionrules that applied to them. Again, Conover learned that
contraband, in "its most obvious forms-weapons, drugs, and alcohol-could all be found fairly
readily inside prison."255 As a

result, enforcing the possessionprohibition against inmates became a matter ofdiscretion.
Guards knew that they could write up any prisoner for illegal possession ofone item or
another any time they decided to "look[] for contraband during patfrisks ofinmates and during
random cell searches."256 Possessionviolations thus became a convenient and flexible way
ofenforcing discipline, a trump card that could be drawn when needed to recommend to
the"adjustment committee"257 that an obstreperous inmate receive more intensive
incapacitative treatment, perhaps by transferring him to the"special housing unit."

If necessary or convenient, possessionviolations could blossom into possessionoffenses.
Possession ofcertain items by a prisoner is, after all, not merely a matter ofprison discipline,
but a matter of criminal law, an issue not only for theadjustment committee, but for a
criminalcourt. Possession ofa dangerous weapon by a prisoner is a serious offense; so is drug
possession-as one might expect, prisoners are not among theprivileged or licensed few who
are exempted from thegeneral prohibition ofpossessing such dangerous items. Some prison
guards are.258 Possession ofweapons or drugs, therefore, can land a prisoner not only in
solitary. It can also extend his stay in prison.259

The possessionpolice, however, doesn't endwith theperiod ofpenal supervision, carceral or
not. Certain possessionoffenders, in particular those labeled "felons," will find themselves
back in prison even after their supervised release or nonrelease has ended. These felon-in-
possessionoffenses have proved particularly powerful and popular police possessiondevices.
They extend theperiod of possessionpolice far beyond theperiod ofpunishment. Once a person
has been marked a danger, a felon, he will be subject to police through possessionno matter
where he might be, and no matter how unsupervised he might be in theory.

We saw earlier how thefederal-state war on crime, under thecodename "Project Exile," uses
theDraconian federal felon--

in-possessionstatute to take released felonsback off thestreets.260 With theright felony priors,
mere possession ofa firearm will land a "felon" (as opposed to an "ex-felon") in prison for at
least fifteen years.261 And, thanks to "honesty in sentencing," a fifteen-year sentence in
federal prison means what it says. Finding felonsin possession, however, can be as easy as
pulling someone over for rolling through a stop sign. The felon-in-possessionstatute gives
thepolice terrific incapacitative bang for their investigative buck.

2. Presumption

But possession, indirectly employed, does more than aggravate theincapacitative treatment
ofthose marked as "convicts"; it also facilitates themarking itself. We've already seen how
possessioncan be established with thehelp ofevidentiary presumptions, which shift theburden
ofproof onto thealleged possessor. So presence quickly transforms itself into possession,
unless theperson present comes forward with a satisfactory explanation ofhis presence that
blocks thetransformation.262

But possessionitself may function as presumptive evidence ofanother offense: it can be
thesource, as well as thetarget, ofa presumptive inference. This presumption can either be
explicit or implicit, and either backward- or forward-looking.

Among theexplicit variety are-retrospective-presumptions ofillegal acquisition, including
importation, manufacture, transfer, even larceny.263 Moving ahead in time, possessionmay
be taken-concurrently-as presumptive evidence ofknowing possession(knowing that and
knowing what),264 and then-prospectively-as presumptive evidence of possessionwith intent

use, where thenature of theuse may or may not be further specified,265 and in some cases
both at thesame time.266 Presumptions ofthis sort are underhanded attempts to reduce simple
possessionoffenses to strict liability offenses and compound possessionoffenses to simple
possessionoffenses, or both.

Possessionpresumptions have become less significant since legislatures figured out that they
can get away with criminalizing possessionoutright, and attach severe penalties to its
"commission." In that case, there is no reason to have theprosecutor waste time establishing
both possessionand some ultimate fact which may be presumed from the possession,
especially when theSupreme Court has scrutinized possession-based presumptions, but not
theoutright proscription of possession.26

Themore interesting case of possessionas presumption, as opposed to possessionas presumed,
is that ofan implicit presumption. This phenomenon goes to theheart of the possessionoffense
for two reasons. First, it brings out theinchoate nature of possession. One way ofthinking of
possessionoffenses is to view them as criminalized presumptions ofsome other offense. In
criminalizing possession, thelegislature really criminalizes import, manufacture, purchase. Or
forwardlooking, thelegislature really criminalizes use, sale, or export. In thelatter variety,
theprospective presumption resembles an implicit inchoate offense. So possessionreally is an
attempt to use, sell, or export, or more precisely, possessionis an attempt to attempt to use,
sell, or export, that is, an inchoate inchoate offense. Some courts have even recognized
theoffenses ofattempted possession268 and conspiracy to possess, 269 which adds an explicit
inchoacy layer to thetwo implicit ones inherent in

theconcept of possession, resulting in an inchoate inchoate inchoate offense, a triple

Second, theimplicit presumption inherent in theconcept ofa possessionoffense reveals
themodus operandi of possession, thesecret ofits success as a policingtool beyond legal
scrutiny. Possessionsucceeds because it removes all potentially troublesome features to
thelevel oflegislative or executive discretion, an area that is notoriously difficult to scrutinize.
In its design and its application, possessionis, in doctrinal terms, a doubly inchoate offense,
one step farther from theactual infliction ofpersonal harm than ordinary inchoate offenses like
attempt. In practical terms, it is an offense designed and applied to remove dangerous
individuals even before they have had an opportunity to manifest their dangerousness in an
ordinary inchoate offense. Onits face, however, it does not look like an inchoate offense, nor
does it look like a threat reduction measure targeting particular types ofindividuals.


It is this sub rosa quality of possessionthat helps set it apart from its predecessor, vagrancy.
Prior to theadvent of possessionpolice, vagrancy lawsfulfilled a similar sweeping function.
Yet, in comparison to possession, vagrancy lawsare theblunt tools ofoppression wielded by a
state unsophisticated in thescience ofpolice control as public hygiene. Blessed with all
thedefinitional flexibility and executory convenience ofvagrancy, possessionis superior to
vagrancy in at least three respects.

1. Reach: Privacy! What Privacy?

Possession's first advantage is that it is not a public offense; unlike vagrancy, it can be
committed in private as well as in public. This means that thestate, through a suspicion of
possession, gains entry into thehome ofsuspected danger sources or, while there, can detect
evidence of possession. As we have seen, police officers are very good at finding illegally
possessed items "in plain view" whenever they enter a residence or get a look inside a car for
one reason or another.

This is thebeauty of possessionas a police instrument: anyone can possess anything anywhere
anytime and does possess something anywhere anytime. Especially if one expansively
defines possessionto include constructive possession, thecriminalization of
possessionpresumptively criminalizes everyone everywhere. Theideal police environment
therefore is theprison, where the possession ofanything is presumptively forbidden and, not
by accident, theprivate sphere no longer exists.270

So far, thefirst amendment appears to be theonly constitutional barrier to a comprehensive
possessionpolice crossing thetraditional-and traditionally impenetrable-border between public
and private, thewall surrounding theproverbial home that is also my castle. In 1969,
theSupreme Court declared categorically that the"private possession ofobscene material may
not be punished."271 But, as theCourt made very clear, that doesn't mean that there is
anything wrong with "mak[ing] the[private or public] possession ofother items, such as
narcotics, firearms, or stolen goods, a crime," because "[n]o First Amendment rights are
involved in most statutes making mere possession criminal." So, when in 1986 theSupreme
Court upheld Georgia's criminalsodomy statute, it made no difference that thestatute
proscribed private as well as public conduct: "Victimless crimes, such as the possessionand
use ofillegal drugs, do not escape the lawwhere they are committed at home."272

Theuse of possessionoffenses to extend police regimes into theprivate sphere has a long
tradition. Already thefirst English Metropolitan Police Courts Act of1839 included not only
several possessionoffenses, such as the possession of"instruments for unlawfully procuring
and carrying away wine,"273 and ofloaded guns onships,274 but also authorized police
officers to enter and search private homes "in case ofinformation given that there is
reasonable cause for suspecting that any stolen goods are concealed in a dwelling house."275
At about thesame time in theAmerican South, white slave patrols were authorized to
rummage through thehouses ofblacks in search ofillegally possessed weapons. 76 A few
years later, American prohibition
ary legislation backed up its criminalization of the possession ofliquor by equipping local
lawenforcement officers with extensive powers to search private homes and confiscate
illegally possessed liquor.277

In thecontemporary United States, theirrelevance ofprivacy in the policing of possessionas an
incapacitation strategy generally remains a hidden, and therefore all themore convenient,
feature of the war on crime. Occasionally, however, a legislature makes it explicit. So, in
theyear 2000, a Connecticut lawauthorized police to enter private homes to seize legally
possessed guns based ona finding that thepossessor might be "dangerous" to himself or
others. Searches and confiscations under the laware not based on thecommission ofan offense
ofany kind, but onother evidence ofdangerousness. So, in one recent case, a Connecticut man
found his mother's home searched and his legally possessed guns seized on thebasis
ofallegations made by two ofhis neighbors "that they'd had disputes with him and had
observed him with a gun at his side."278

2. Convenience and Permanence: TheVelcro Offense

Possessionoffenses also are far more efficient than theclunky toothless vagrancy statutes
ofold; they give lawenforcement officials much more bang for their buck. Penalties for
vagrancy paled in comparison to those for possession. Although vagrants might be
imprisoned for short terms, vagrancy lawswere most important in low level and continuous
police harassment ofundesirables. Already in colonial Virginia, we learn that:

[V]ery few cases appear in theCounty Court records ofVirginia ofpersons brought in solely
for vagrancy. . . . But when a person was brought before theCounty Court for some other
offense-a petty theft, for example-thefact that he was a vagabond might make thepunishment
a little more severe; or it might serve as an excuse for administering a whipping in case
theother charge could not be completely proved.279

And Christopher Tiedeman colorfully described how vagrancy lawswere used in late
nineteenth century America to harass, and "warn out," thedangerous classes:

A very large part of theduties of thepolice in all civilized countries is thesupervision and
control of the criminalclasses, even when there are no specific charges of crimelodged against
them. A suspicious character appears in some city, and is discovered by thepolice detectives.
He bears upon his countenance theindelible stamp of criminalpropensity, and he is arrested.
There is no charge of crimeagainst him. He may never have committed a crime, but he is
arrested on thecharge ofvagrancy, and since by theordinary vagrant acts theburden is thrown
upon thedefendant to disprove theaccusation, it is not difficult in most cases to fasten onhim
theoffense ofvagrancy, particularly as such characters will usually prefer to plead guilty, in
order to avoid, if possible, a too critical examination into their mode oflife. But to punish him
for vagrancy is not theobject ofhis arrest. Thepolice authorities had, with an accuracy
ofjudgment only to be acquired by a long experience with the criminalclasses, determined
that he was a dangerous character; and themagistrate, in order to rid thetown ofhis presence,
threatens to send him to jail for vagrancy if he does not leave theplace within twenty-- four
hours. In most cases, theperson thus summarily dealt with has been already convicted ofsome
crime, is known as a confirmed criminal, and his photograph has a place in the"rogues'
Equipped with an arsenal of possessionoffenses, today's lawenforcement official has no
reason to confine himself to expelling dangerous elements, knowing full well that they may
soon find their way back into town. Now he can incapacitate them through substantial prison
terms, after a summary process that will take little more ofhis time. Today's possessor faces
not thechoice between a short stay in jail and hitting theroad. Instead he finds himself
choosing between pleading to a five year prison term and taking thechance ofspending therest
ofhis life behind bars after a jury trial, where thedeck is stacked in thestate's favor.281

3. Impunity: TheTeflon Offense

Most important, possessionis far less susceptible to legal challenges than vagrancy. Vagrancy
had been thepolice sweep offense ofchoice for centuries until vagrancy statutes began to

run into constitutional trouble in the1960s. Vagrancy statutes were too explicit in their
criminalization ofstatus without any particular criminalact and in their delegation
ofinterpretive discretion to frontline police officers. So courts began to strike down vagrancy
statutes targeting "disorderly persons," or even "suspicious persons," which gave free reign to
police officers and their fellow "criminaladministrators," sympathetic local magistrates and
justices of thepeace, to cleanse their community ofundesirables, among whom one could find
a disproportionate percentage ofracial minorities, poor people, and other outsiders.

Historically, twentieth century American vagrancy lawshad replaced even more obvious and
oppressive attempts to dispose ofundesirables. While, according to a study by Eric Foner,
"most provisions" of theBlack Codes passed by Southern legislatures immediately following
emancipation "were quickly voided by thearmy or Freemen's Bureau, or invalidated by
theCivil Rights Act of1866," thevagrancy statutes remained in force, presumably because
they were racially neutral, at least ontheir face. Thus immunized from legal challenges, they
could fulfill their function of policingnewly freed blacks in thefield. As Foner points out,
"[w]hat is critical is themanner oftheir enforcement, and in theSouth of1865 and 1866, with
judicial and police authority in thehands of theplanter class and its friends, impartial
administration was an impossibility. Many southern vagrancy laws, in fact, contained no
reference to race. But as John W. DuBose, theAlabama planter and Democratic politico later
remarked, "thevagrant contemplated was theplantation negro."282

Thevagrancy laws' immunity survived for another hundred years, when they themselves fell
prey to judges who were willing to look behind theabstract letter of the lawto its meaning on
thestreets. Possessionoffenses represent thenext generation ofgeneral police measures. They
make no reference to race or any other suspect classification. In fact, they make no explicit
reference to any sort ofstatus. By contrast, vagrancy statutes brimmed with descriptions
oftypes, rather than ofacts, which-- given theact requirement in criminal law-invited scrutiny.
Their objective was to define not vagrant acts, but vagrants.

Those who fit thedefinition were not convicted ofvagrancy, but "deemed vagrants." Take, for
example, theFlorida vagrancy statute eventually invalidated by theSupreme Court in the1972
case ofPapachristou v. City of, Jacksonville.

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers,
persons who use juggling or unlawful games or plays, common drunkards, common night
walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and
lascivious persons, keepers ofgambling places, common railers and brawlers, persons
wandering or strolling around from place to place without any lawful purpose or object,
habitual loafers, disorderly persons, persons neglecting all lawful business and habitually
spending their time by frequenting houses ofill fame, gaming houses, or places where
alcoholic beverages are sold or served, persons able to work but habitually living upon
theearnings oftheir wives or minor children shall be deemed vagrants ... .283

A statute as broad and rambling as this, straining to capture theimage ofdisagreeable people,
even looks like thesweep it is obviously designed to facilitate. It bespeaks thevery
irrationality and arbitrariness it attempts to justify.

It didn't help matters that thepedigree ofthese statutes was fraught with arbitrary and thinly
veiled oppression. This history extended past thepost-Civil WarBlack Codes through colonial
America and thecomplex English system ofpoor police of thesixteenth, seventeenth, and
eighteenth century and eventually to thefirst English poor laws of thefourteenth century.
Thenew colonies took up thetask of policingvagrants almost immediately. Theestablishment
and refinement of thevagrancy regime in colonial Virginia may serve as an illustration:

In 1672 theAssembly found it necessary to order that theEnglish lawsagainst vagrants should
be strictly enforced. Thechief ofthese lawswas the39 Eliz., chapter 4 (1597), which permitted
theerection ofhouses ofcorrection in any county, and directed that rogues and vagabonds were
to be whipped by order ofa justice, constable, or tithingman, and sent to their own parishes,
there to be put in thehouse ofcorrection until employment was found for them, or until they
were banished. The law of1 James I, chapter 7 (1604), provided that incorrigible and
dangerous rogues might by order of thejustices be branded in theshoulder with theletter R . ..
TheEnglish statute 17 Geo. II, chapter 5, repealed theearlier laws onvagrancy, and went onto
provide for thepunishment ofidle and disorderly persons, vagabonds, and incorrigible rogues.
It was

from this statute that theAssembly copied extensively in 1748 .... The lawdefined vagabonds,
and provided that they were to be taken by warrant before a justice, who might order them
whipped from constable to constable like runaways, until they reached theparish in which
their families last resided. At that point thelocal justices were to take a bond that
thedelinquents would find work. Failing this, thenext County Court might bind such persons
to work for a year.284

Efforts to control this dangerous class continued uninterrupted and virtually unchanged
through thenineteenth century, and were by no means confined to theSouth, as an opinion of
theOhio Supreme Court upholding a vagrancy statute in theyear 1900 makes very clear:

Theact in question undertakes to define a tramp, or vagrant, by stating what acts shall
constitute such character. It is, in themain, theold method ofdescribing a vagrant, and
vagrancy, time out ofmind, has been deemed a condition calling for special statutory
provisions, i.e., such as may tend to suppress themischief and protect society. These
provisions rest upon theeconomic truth that industry is necessary for thepreservation
ofsociety, and that he who, being able to work, and not able otherwise to support himself,
deliberately plans to exist by thelabor ofothers, is an enemy to society and to

Possessionoffenses not only avoid explicitly criminalizing types, they also steer clear
ofcriminalizing facially innocent conduct, such as the"wandering or strolling around from
place to place without any lawful purpose or object," which drew such derision from
theSupreme Court in Papachristou.286

Compared to thebumbling vagrancy lawswhich, ontheir face, looked as suspicious as thetypes
they described, possessionoffenses look very much like modern criminalstatutes. Ontheir
face, one finds no description oftypes and no reference to status, no awkward definition
offacially innocent conduct, and, in fact, no definition ofconduct ofany kind.

So possessionis, on theface ofit, neither a status offense nor a conduct offense. As a result, it
is immune against all challenges. It is thephantom offense ofmodern American criminal law,
everywhere yet nowhere, an offense so flexible that it no longer is an offense, but a scheme, a
means ofsurreptitiously expanding thereach ofexisting criminalprohibitions, oftransforming
them into instruments ofincapacitation. Neither fish

nor foul, possessionis sui generis, thegeneral part of criminal lawas police control
ofundesirables, theparadigmatic modern police offense.

To appreciate its function, and thecomplexity ofits operation, one must scratch thesurface
ofthis apparently bland, yet ubiquitous and potent offense. So far we have taken thefirst step
toward understanding possessionby identifying it as a phenomenon. Normally, theoffense
goes about its work unnoticed as it disappears in its myriad particular manifestations. So,
discussions of the"legalization" ofdrugs as a rule ignore thetechnique by which drugs are
"criminalized." But thecriminalization ofdrugs means thecriminalization oftheir possession.
Similarly, any debate about gun "control" always also is a debate about possessionoffenses.

Once theteflon layer has been stripped away, possessionemerges as an offense that closely
resembles its predecessor, vagrancy, in substance, if not in form. Possessiondoes what
vagrancy did, only better and behind a legitimate facade.

4. Behind theFacade

Let us begin with theobvious. Possessionis not a conduct offense. As commentators have
pointed out for centuries, possessionis not an act, it is a state ofbeing, a status.287 To possess
something is to be in possession ofit.

To dismiss possessionsimply on theground that it violates theso-called act requirement
ofAnglo-American criminal law, however, would be premature. Theact requirement, from
theoutset, applied to common lawoffenses only, i.e., to offenses that traced their origins back
through a grand chain ofcommon lawprecedents, rather than to a specific statute that created
a new offense. Certainly theconcept ofcommon lawoffenses was malleable, so that judges had
some discretion in treating a particular offense as a common lawor as a statutory offense.
That's not thepoint here, however. Thepoint is that English judges from very early onthrew
out possessionindictments as violative of theact requirement only if they alleged a common
lawoffense of possession, rather than invoked a statutory possessionprovision. Once it was
settled that the possessionindictment was brought under one of theincreasing number of

utes thecommon law's act requirement was no longer an issue.288 Theact requirement was as
irrelevant to statutory possessionas themens rea requirement was to "statutory" rape. 289
Thecommon law's act requirement, therefore, does not stand in theway ofmodern
possessionstatutes. And thethin slice of theact requirement constitutionalized by theU.S.
Supreme Court in the(decidedly pre-crime war) 1962 case ofRobinson v. California' also can
do little, by itself, to challenge possessionoffenses. Theconstitutional act requirement merely
prohibits thecriminalization ofaddiction in particular, and ofsickness in general (or at least
"having a common cold").291 Possessiondoesn't criminalize an illness, at least not directly.
TheSupreme Court in Robinson went out ofits way to reassure legislatures that they remained
free to "impose criminalsanctions . . against theunauthorized manufacture, prescription, sale,
purchase, or possession ofnarcotics."292

Then there is thegeneral uneasiness regarding omission offenses characteristic ofAmerican
criminal law. Absent a clear duty to act, thefailure to act is not criminal. If possessionisn't an
act, perhaps one should think ofit as an omission, theomission to get rid of theitem one
possesses.293 But what is theduty that compels me to drop theshiny new pistol that my friend
has just bought himself at thelocal gun store, or to toss out thebaggie ofcocaine I noticed in
theglove compartment ofmy rental car? If one looked hard enough, perhaps one could find
such a duty nestled in thecriminalization ofa possessionthat is defined as thefailure to endit.
But thepoint ofrequiring a specific duty for omission liability, thesignificance of thegeneral
unwillingness to criminalize omission, is precisely to reject omission liability absent specific
and unambiguous provisions to thecontrary. Still, by itself, thedisfavored status ofomissions
does not imply rejecting possessionliability.

And thesame could be said about theabandonment ofanother ironclad principle ofAnglo-
American criminal law, mens rea. Some possessionoffenses, after all, do away not only with
the-even ironcladder-requirement ofan actus reus, but also therequirement of
criminalintent.294 If this absence ofmens rea alone would condemn possessionoffenses to
illegitimacy, thebulk ofmodern American criminal lawwould suffer thesame fate.

Finally, as discussed earlier on, one might try to domesticate possessionoffenses by
categorizing them as kinds ofinchoate offenses. To pick a familiar example, thesimple
possession ofcertain large quantities ofdrugs can be seen as an attempt to sell them.
Possessionin this case would be a kind ofinchoate inchoate offense, an attempted attempt,
perhaps. Inchoate liability, however, much like omission liability, is disfavored in traditional
Anglo-American lawand therefore limited to cases where theoffender acted with thespecific
intent to bring about theproscribed harm. But, by definition, that intent is missing in a simple
possessionoffense, as opposed to a compound possessionoffense, which requires proof ofan
intent to use theobject possessed in one way or another. Punishing simple possessionas a
quasi inchoate offense, therefore, would violate thegeneral rule that inchoate liability requires
specific intent. As nineteenth century cases emphasized again and again, in terms reminiscent
of thetheory ofattempt liability, it was theintent to use theobjects in a proscribed way that
justified criminalizing compound possession, not the possessionitself: "Theoffense consists
not in the possession of[adulterated] milk ... but in theintent to sell or exchange" it.295
Lacking this all-- important intent element, theprohibition ofsimple possessionobviously
could not avail itself ofthis justification.

Now thepoint ofthis litany ofdifficulties is not to suggest that any or each ofthem taken
individually exposes theillegitimacy of possessionoffenses. Instead, we learn two things from
this quick diagnosis. First, we come to recognize that possessionis sui generic and therefore
subject neither to traditional categories of criminalliability nor to traditional avenues
ofcritique. Second, and more important, we come to appreciate just how anxious themodern
state is to pursue its incapacitative mission,

so eager in fact that it is willing to enlist theservices ofan offense that runs afoul ofmost, if
not all, of thefundamental tenets oftraditional American criminal law.

What's more, it is thevery fact that possessionignores so many of thebasic rules, even bedrock
principles, oftraditional American criminal law, which turns it into such an attractive weapon
in the war on crime. This is so because every substantive principle has its procedural
analogue. Without actus reus, no act needs to be proved. Without mens rea, no evidence
ofintent is required. Without omission, there's no need to establish a duty. Without inchoacy,
theprosecutor can do without proving specific intent. Possessionis unclassifiable, it is
everything and nothing, an unspecifiable offense for a task best left unspecified: thecontrol

It is this control function of possessionthat is most troubling, not its tensions with established
principles of criminal lawdoctrine. Possessionoffenses are wolves in sheep's skin, highly
efficient instruments ofoppression and discrimination that have been camouflaged as run-of-
the-mill criminaloffenses, and thereby protected against legal challenges and shielded from
public scrutiny.

It is true that, on thesurface, possessionoffenses don't stand out among theoffense definitions
in thespecial part ofour modern criminalcodes. They are professionally short and to thepoint,
in welcome contrast to vagrancy's amateurishly rambling laundry lists ofsuspicious types.
But, as soon as one looks beyond thedefinition ofa core possessionoffense like "criminal
possession ofa weapon,"296 what does one see but long lists, lists oftypes! These lists take
one oftwo forms: they are either lists of thepoliced297 or lists ofthose "deemed to be
vagrants," thelatter are lists ofthose who do thedeeming. "Whoever" fits a type on thefirst list
may not possess a gun. "Whoever" fits a type on thesecond list is not only entitled to possess
a gun, but is exempt from the lawcriminalizing its possession. Theformer cannot legally
possess a gun, thelatter cannot illegally possess one.

It turns out that instead ofreplacing vagrancy's list oftypes, a gun possessionstatute like
theone in theNew York Penal Lawsimply removes thelist from thedefinition of theoffense to
another, subsidiary, part of thestatute. This strategy ofburying thetroubling aspect ofa
criminalstatute in thefine print has proved popular in the war on crime. So, legislatures have
been fond ofclassifying aggravating factors-including, as we saw earlier, gun possession-as
sentencing considerations, thereby insulating these provisions from constitutional attack and,
thanks to thelower burden ofproof at sentencing, simplifying their application, all at once.

Two types appear again and again on thelist ofdangerous characters prohibited categorically
from possessing a gun: convicted felons299 and aliens.300 Thejustification for inclusion of
theformer is explicitly based ondangerousness considerations: Convicted felonsare "persons
who, by their actions, have demonstrated that they are dangerous, or that they may become
dangerous. Stated simply, they may not be trusted to possess a firearm without becoming a
threat to society."301 Presumably, aliens too are potential threats to society simply onaccount
oftheir outsider status.

"Convicted felons" and "aliens" thus resemble thetargets ofvagrancy laws, who also were
considered far too dangerous to possess a gun.302 "Thevagrant," as one commentator
remarked in 1886, "has been very appropriately described as thechrysalis ofevery species of
criminal." Vagrants were members ofa permanent underclass who, by moving about theland
without attachment to a recognized unit ofsocial control, such as a household, an employer, a
school, or a prison, were by their very nature disobedient, disorderly, and therefore
dangerous. Congregating under bridges and in other hidden places, they constituted a
constant conspiracy against innocent and hardworking citizens who knew their place in
orderly society. They were a breeding ground ofcriminality, a menace to society.

Now thepoint is not simply that vagrants, like convicted felonsand aliens today, were not
allowed to possess guns. Thelarger point is that members ofthese groups are considered by
their nature to be dangerous simply onaccount ofthat membership, without any need to assess
their dangerousness individually. Theprohibition ofgun possessionis merely symptomatic
ofthis general classification by type. Those deemed to be "felons," "aliens," or "vagrants" are
inherently dangerous, and therefore cannot be trusted to possess a gun without putting it to
harmful use. Once a felon, always a felon.

To prohibit not merely possession, but possessionby a certain type ofperson, is to create a
double status offense. To be in possessionis a status. And to be a felon, or alien, or youth, or
insane person, in possessionis another status. So, a felonin possessionis punished for thestatus
ofbeing a "felon" and ofbeing "in possession." This makes "Felonin Possession ofa Firearm. .
. theprototypical status offense," as a federal court recently put it.304

Lumping together felonsand aliens in this way may seem odd, but it is not unusual. Aliens
and felonsalso share other disqualifications, including theprohibition against voting,305
holding elected office,306 and serving onjuries, 307 as judges, as prosecutors, police officers,
prison guards, or wardens.308 In other words, since felonsand aliens have no say in
themaking, application, or enforcement ofpolice regulations or the criminal law, they
consistently find themselves among thepoliced, rather than thepolice, among theobjects,
rather than thesubjects ofpolice. They are, by their nature, excluded from thepolitical
community, outsiders by definition.

One way ofthinking about thelist ofclasses whose members are bound to wreak havoc with a
gun is to recognize it as estab

lishing an irrebuttable presumption that anyone matching thetype is not of"good character"
and cannot give a "good account ofhimself." From this perspective, two key characteristics of
possessionoffenses clearly emerge, each ofwhich highlights thesimilarities between
possession- and vagrancy-based police regimes: their incorporation into a comprehensive
policingscheme driven by thediscretion ofstate officials and their heavy reliance
onpresumptions ofdangerousness, general and specific.

By theeighteenth century, English vagrancy lawsbelonged to a complex scheme for
thecontrol ofdeviants, which began with sureties and ended with whipping and imprisonment.
According to Blackstone, sureties for keeping thepeace or for good behavior were "intended
merely for prevention, without any crimeactually committed by theparty, but arising only
from a probable suspicion, that some crimeis intended or likely to happen .... Any justice of
thepeace could demand such a guarantee onhis own discretion or at therequest ofany person
upon "due cause."310 If thebound person violated theconditions ofhis bond (to keep thepeace
or to show good behavior), he forfeited to theking theamount posted. For our purposes, what
is most interesting is therecognizance for good behavior "towards theking and his people"
that applied to "all them that be not ofgood fame." Just who fell into this category was up to
theindividual justice of thepeace. Here is Blackstone's attempt to illustrate thescope of
thelimitless concept:

Under thegeneral words ofthis expression, that be not ofgood fame, it is holden that a man
may be bound to his good behaviour for causes ofscandal, contra bonos mores, as well as
contra pacem; as, for haunting bawdy houses with women ofbad fame; or ofkeeping such
women in his own house; or for words tending to scandalize thegovernment; or in abuse of
theofficers ofjustice, especially in theexecution oftheir office. Thus also a justice may bind
over all night-walkers; eavesdroppers; such as keep suspicious company, or are reported to be
pilferers or robbers; such as sleep in theday, and wake on thenight; common drunkards;
whoremasters; theputative father ofbastards; cheats; idle vagabonds; and other persons,
whose misbehaviour may reasonably bring them within thegeneral words of thestatute .... 311

There was, in other words, substantial overlap between those subject to regulation by sureties
and those in danger ofbeing classified as vagrants; "idle vagabonds" were explicitly listed as
in need ofcontrol through sureties of thepeace. In fact, thevagrancy lawscan be seen as a fall-
back option, should thesureties prove unsuccessful. By theeighteenth century, vagrancy
lawsgrouped vagrants into three categories:2 "idle and disorderly persons" (punished by one
month's imprisonment), "rogues and vagabonds" (whipping & imprisonment up to six
months); and "incorrigible rogues" (whipping & imprisonment up to two years). Theseverity
of thesanction increased as theamenability to treatment decreased. While theleast serious type
ofvagrant retained thetitle ofa "person" with theincidental qualities ofbeing "idle and
disorderly," themore serious types were defined exclusively by their deviant status: they were
"rogues and vagabonds," rather than persons. Any hope for a reclassification as a person was
lost in thecase of themost aggravated type ofvagrant, the"incorrigible rogue."

All ofthese vagrants pose a threat simply through their existence. They are, in Blackstone's
words, "offenders against thegood order, and blemishes in thegovernment, ofany
kingdom."313 As blemishes, they must be removed. Removed they can be through re-
education, or, if they are inherently and unalterably deviant, through incapacitation.

Thedangerous classes, then, were subject to a three-step police regime. First came thesurety
bond, designed to avert themanifestation of thethreat by tying it to conditional financial loss.
Next, for threats so substantial as not to be amenable to such inducements for self-correction,
came theforced correction through fines, whipping, infamous punishments, or imprisonment.
And finally, for theincorrigible rogues beyond all hope ofreintegration, there was theprospect
ofincapacitation through prolonged and repeated imprisonment. At each level, a presumption
ofdangerousness attached upon an initial suspicion of"being not ofgood fame" or of"being
idle or disorderly," and could be rebutted by proof to a justice of thepeace who enjoys wide
discretion, assuming ofcourse that one's initial attempt to remove thesuspicion of
theconstable (or concerned

citizen), who enjoyed even wider discretion, proved unsuccessful.

In thecase ofgun possessionoffenses, a modern possessionpolice regime, like New York's,
operates much like a full-fledged vagrancy regime. Thecriminalization of
possessionessentially sets up two presumptions ofdangerousness, one rebuttable, theother not.
Gun possessionis presumptively illegal.314 It is up to thestate, in its discretion, to grant
licenses to those whom it deems insufficiently dangerous in general, and insufficiently likely
to use a gun to harm others. Thestate is not required to issue a gun license to anyone. Gun
possessionis not a matter ofright, but ofgrace.315 For this reason, an applicant for a gun
license also is not entitled to an administrative hearing, though thestate may grant him one,
again in its discretion.316 Thepresumption ofdangerousness becomes irrebuttable when
theindividual has revealed himself to be inherently dangerous, as in thecase of"felons."

But how can an applicant for a gun license remove thepresumption ofdangerousness? By
convincing a "licensing officer," in large cities a member of thepolice department's license
division, that he is "ofgood moral character"!317 And as theEnglish justice of thepeace,
thestate licensing officer enjoys virtually unlimited discretion in deciding whether
theapplicant is or is not "ofgood fame."318 Felonsare by definition not "ofgood character;"
that's what it means to be a felon. And so are aliens who, also by definition, have not been
found to be "person[s] ofgood moral character, attached to theprinciples of theConstitution of
theUnited States, and well disposed to thegood order and happiness of theUnited States."319

Theuse ofpresumptions, however, is not limited to gun possessionoffenses. We already have
discussed at some length thespecific evidentiary presumptions emanating from and

pointing toward possession.320 Thevery concept of possessionliability is based on
thepresumption that the possession ofcertain items, by certain people, is inherently dangerous
and therefore worthy ofpolice investigation, if not ofoutright interference by seizing
thepossessors and theitem possessed for incapacitative purposes. Ill-defined presumptions
granting ill-- defined discretion to police officials have accompanied possessionoffenses at
least since thelate eighteenth century, when thestate began to tap thepolice potential of
possessionoffenses. For example, theEnglish Frauds by Workmen Act of1777 defined
thefollowing new possessionoffense: "having in his or her possessionany materials suspected
to be purloined or embezzled, and not producing theparty or parties being duly intitled [sic] to
dispose of thesame, ofwhom he or she bought or received thesame, nor giving a satisfactory
account how he or she came by thesame."321 Similarly, the1851 "Act for thebetter
Prevention ofOffences" imposed a prison sentence ofup to three years onanyone "found by
Night having in his Possessionwithout lawful Excuse (theProof ofwhich Excuse shall lie
onsuch Person) any Picklock Key, Crow, Jack, Bit, or other Implement

Not even thelicensing scheme is unique to gun possessionoffenses. Drug possessionoffenses
operate in much thesame way.323 Once again, the possession ofcertain "controlled"
substances is presumptively illegal. A controlled substance is a substance subject to a license
requirement. Possessionis legal only to theextent authorized by thestate. That authorization,
that license, is granted to particular groups ofpersons.

Licensing is less important in thecase ofdrug possessionoffenses simply because so few
licenses are granted. As a result, drug possessionis criminalfor almost everyone. This means
that for all intents and purposes, thepresumption ofdangerousness is irrebuttable in drug
possessioncases. Everyone is presumed to be incapable ofputting theinherently dan

gerous drug to harmless use. Given theaddictive potential ofdrugs, their very dangerousness
consists oftheir tendency to overcome their possessor's ability to prevent them from unfolding
their dangerous potential. So strong is thepower ofdrugs, and so weak thepower ofresistance
ofalmost everyone, that already their mere possessionis so likely to result in not only use, but
harmful use, that we are presumptively ill-equipped to even possess these noxious substances.
Possessionoffenses, particularly gun possession, therefore are merely thepunitive culmination
ofa policingprocess that begins with a licensing requirement. And what a sophisticated
process it is! By requiring a license, thestate kills several birds with one stone. First ofall, it
deters anyone from applying for a license who is not blessed with a "good moral character."
Moreover, therequirement ofa license itself very probably has a disproportionate effect
onoutsiders, who are far less likely to apply for a gun license in thefirst place, precisely
because they do not identify with thestate and its institutions. In fact, they are unlikely to be
inclined to comply with state licensing requirements ofany kind, be it for dogs, cars, or guns,
perhaps because they resent such obvious efforts to police them, perhaps because they don't
expect much ofa chance ofactually being awarded a license, perhaps because their
neighborhood is so inundated with unlicensed guns that thelicense requirement strikes them
as entirely toothless-until ofcourse they are stopped by a police officer who subjects them to a
Terry frisk.

Anyone who does submit an application for a gun license thereby subjects himself and his
character to theinquisitive eye and virtually limitless discretion ofa licensing officer. Here,
those not "ofgood moral character" who have theaudacity to apply can be weeded out. And,
at yet another level ofinquiry, theones that slip through thecracks can later be subjected to
license revocation proceedings, which in turn are backed up with criminalpenalties. Plus, an
additional inquiry into fitness and harmlessness will take place when thelicense comes up for
renewal, perhaps as often as every other year.324

Ofcourse, if a bad character doesn't apply for a license, and most don't, then the
possessionoffenses come into play. Obviously they apply to anyone who, such as "felons"
and "aliens," has revealed himself to be not "ofgood moral character" with

out further inquiry by thelicensing officer. Not so obviously, possessionoffenses also capture
those perfectly good characters who possess a gun without a license. Possessionwithout a
license is possessionwithout a license, no matter who does thepossessing.

This formal irrelevance ofgood moral character, ofharmlessness, deserves emphasis. It
suggests that thecore of the possessionoffense is not theprevention ofharm, but
thechastisement ofdisobedience. In this light, theimmediate and very real victim ofa
possessionoffense is thestate, as theorigin of thecommand not to possess guns without its
specific authorization. Licensing is a regulatory technique of themodern state and assumes a
state powerful and sophisticated enough to set thebackground condition against which a
licensing regime can operate. That background condition is a universal presumption
ofdangerousness, which thestate in its discretion permits its regulatory objects to rebut.
Everyone is presumed dangerous, unless thestate declares it to be otherwise under conditions
defined and applied by thestate.

Another way oflooking at the possessionlicensing scheme is to regard thestate as theoriginal
owner ofall objects it deems dangerous. Having declared itself theowner ofall contraband (all
"controlled substances"), it is within thestate's discretion to assign possession ofthis
contraband to certain individuals. As therightful owner, thestate can also retake these objects
into its possessionanytime it pleases, and certainly anytime theconditions ofits grant have
been violated or someone has boldly taken possession ofcontraband without receiving
permission from thestate. As Justice Murphy explained in his dissent in Harris v. United
States,325 "certain objects, the possession ofwhich is in some way illegal, may be seized
onappropriate occasions without a search warrant. Such objects include stolen goods,
property forfeited to theGovernment, property concealed to avoid payment ofduties,
counterfeit coins, burglar tools, gambling paraphernalia, illicit liquor and thelike."

Under either view, and even without an explicit licensing mechanism, possessionoffenses are
thesign ofa powerful state. Possessionis illegal, literally, because thestate says so. Illegal (or
"unlawful" or "criminal," in some possessionoffenses) means unauthorized, period. In
thewords of theNew York

Court ofAppeals, "a person either possesses a weapon lawfully or he does not,"326 and
theconditions oflawful possessionare exhaustively established by thestate in the
possessionoffense itself. Hence, there's no need to worry about such messy concepts as self-
defense or, even worse, justification, which claims that a violation ofa statute may be justified
on thegeneral ground that, though facially criminal, it was not unlawful in thegrand scheme
ofthings.327 Possessionoffenses begin and endwith thestate. This is what makes them so
simple and so useful to thestate.

But this is also what makes them so troubling. To commit a possessionoffense is to interfere
with thestate's effort to regulate, to control, the possession ofcertain dangerous items,
including not only certain guns and drugs, but also, say, firecrackers. 328 In its heart ofhearts,
theillegal-i.e., unauthorized-possession ofguns or ofdrugs does not differ from theillegal-i.e.,
unauthorized-possession offirecrackers. Theessence ofa possessionoffense is disobedience
ofstate authority.

5. Authoritarian States and Fatherly Monarchs

Despite thecentral role of themodern state in possession-- based policing, there are important
structural similarities between the possessionmodel and theoriginal English vagrancy model.
It is no accident that thetheory oforiginal state ownership ofcontraband generally resembles
thetheory oforiginal royal ownership ofland, and in fact theentire system ofdelegation which
traced theorigin ofall legal authority and entitlements to theking. Both models presume a
strong central authority ofgovernance charged with maintaining thewell-- being of
thepolitical community.

And both models spring from thepolice power oftheir respective sovereigns. In a passage
much quoted by nineteenth century American writers onpolice power and regulation,
Blackstone explained in 1769 that theking, as the"father" ofhis people, 329 and "peter
families of thenation,"330 was charged with:

thepublic police and oeconomy[, i.e.,] thedue regulation and domestic order of thekingdom:
whereby theindividuals of thestate, like members ofa well-governed family, are bound to
conform their general behavior to therules ofpropriety, good neighbourhood, and good
manners: and to be decent, industrious, and inoffensive in their respective stations.331

In theUnited States, thepaternal (or parental, as John Locke insisted 332) "police power" of
theking eventually was taken over by thestate as parens patriae, which-but ultimately
ofcourse also who-regulated thecommonwealth, and later ondefined and protected
theinterests of thecommunity as such.

It was this same quasi-paternal police power, proceeding from a quasi-familial hierarchy
ofpolicer and policed, ofsubject and object, that gave rise to thestring ofAmerican vagrancy
lawsthat began in theearly days ofcolonial America-when theparens patriae was still
theEnglish king-and continued for over three centuries, through thesecond half of
thetwentieth century. TheAmerican revolution and theCivil Warmight have wrought
fundamental changes in American law. They had no effect onvagrancy police, which was
considered a necessary weapon in thearsenal ofany government that took its task ofpreserving
public order and welfare seriously. Only thecivil rights era brought thedownfall ofthis
convenient police mechanism, as judges began to identify with theobjects ofthis police
regime, rather than only with its subjects.333

Still, something does distinguish the possessionscheme from thetried, but true, and ultimately
dismantled vagrancy police regime. Here, I don't mean themany ways in which
possessionoffenses are preferable to vagrancy statutes as instruments ofsocial control, in
particular their insulation against legal attack, at least ontheir face and in theabstract. I mean,
instead, precisely theflipside ofthat process ofabstraction which rendered possessionpolice
facially unassailable.

Thefundamental difference between a vagrancy statute and a possessionstatute is that one is
open about its discriminatory purpose, and theother isn't. In other words, vagrancy statutes
apply only to vagrants, possessionstatutes apply to everyone.

Vagrancy lawswere clearly a way, and clearly understood as a way, of policing theboundaries
ofa political community, which was neatly defined along socio-economic and, not only in
theSouth and not only immediately after theCivil War, especially along racial lines. 34
Thesame cannot be said for possessionoffenses; and that's why they make theNRA so

When we marvel at theantiseptic, and apparently unassailable, neutrality ofsleek modern
possessionoffenses, it's good to remember that they weren't always so. They wore their now
hidden connection to vagrancy lawsright ontheir sleeves. Through thenineteenth century,
thesuppression ofgun possessionamong blacks, and other undesirable sources ofthreats to
thegoverning group, was a common, and very explicit, strategy ofgovernance.335 Before
theCivil War, Slave Codes regularly prohibited free blacks and slaves from possessing
guns.336 Legislatures also already made full use of theintrusive potential of
possessionoffenses. In 1825, Florida authorized slave patrols to "enter into all negro houses
and suspected places, and search for arms and other offensive or improper weapons, and ...
lawfully seize and take away all such arms, weapons, and ammunition . . . ."337 Eight years
later, Florida reaffirmed thepatrols'

broad search authority and went onto provide that blacks unable to "give a plain and
satisfactory account of themanner... they came possessed ofweapons found in their
possessionwere to be "severally," and summarily, punished-"by moderate whipping on
thebare back, not exceeding thirty-nine lashes."338

After theCivil War, Black Codes continued thegeneral prohibition ofgun possessionby blacks,
until thepassage of theCivil Rights Act of1866.339 Thereafter, openly discriminatory gun
possessionstatutes disappeared from thestatute books.

That didn't mean that gun possessionstatutes in general were a thing of thepast. On
thecontrary. As in thecase ofvagrancy statutes, thegoal ofracial oppression simply migrated
underground, from theface of thestatute into its increasingly unspoken intent. As in thecase
ofnow race neutral vagrancy statutes, therace neutral gun possessionstatutes applied only to
blacks, and everybody knew it. Here is what a judge on theFlorida Supreme Court, in 1941,
had to say about theracist point ofthat state's race neutral gun possession law:

I know something of thehistory ofthis legislation. Theoriginal Act of1893 was passed when
there was a great influx ofnegro laborers in this State drawn here for thepurpose ofworking in
turpentine and lumber camps. Thesame condition existed when theAct was amended in 1901
and theAct was passed for thepurpose ofdisarming thenegro laborers .... Thestatute was never
intended to be applied to thewhite population and in practice has never been so applied.

Possessionoffenses and vagrancy statutes thus followed a similar trajectory from explicit to
implicit oppression. What distinguishes possessionfrom vagrancy is thesubtlety with which
possessiondischarged its oppressive function. Vagrancy stat

utes, even after their forced neutralization in thewake of theCivil War, never managed to shed
their oppressive origins. Possessionoffenses did. Modern possessionoffenses ontheir face
apply to anyone and everyone who possesses some object without theauthorization required
by thestate. They apply, as modern criminalstatutes do generally, to "whoever." By contrast,
vagrancy statutes by their very nature singled out rogues, vagabonds, dissolute persons,
common gamblers, jugglers, gamblers, common drunkards, common night walkers, thieves,
pilferers, pickpockets, lewd, wanton and lascivious persons, common railers and brawlers,
habitual loafers, disorderly persons, and even "persons wandering or strolling around from
place to place without any lawful purpose or object."341 Singling out undesirable types, i.e.,
vagrants, remained theexplicit point ofvagrancy statutes, while possessionoffenses managed
to transform themselves into quasi-conduct offenses that could be committed by all types.

There is a list oftypes even in possessionoffenses, as we have seen, but that list is much
shorter: felonsand aliens. Other distinctions are irrelevant, except for one, and this is
thecrucial distinction for possessionas a pure state obedience offense: thefundamental
distinction between thestate and everyone else. Thestate commands, everyone else obeys.

In this particular case, thestate commands that anyone who wants to possess must apply for a
license. This is so because everyone, not just those "deemed vagrants," is presumed to be
dangerous and therefore incapable ofpossessing a gun without putting it to harmful use.
Thepresumption ofdangerousness has been expanded from vagrants to everyone. To rebut it,
everyone must convince a state license officer ofhis "good character."

Anyone who fails to comply with these commands, and thereby to acknowledge thestate's
authority, is guilty ofa weapons offense, no matter how good his character. And this is
theproblem, and thedistinctive feature of possessionoffenses: thelines separating thepolicer
and thepoliced are no longer clearly drawn. Those middle class whites who could be certain
to escape classification as vagrants cannot rest assured that they

may not find themselves on thewrong side of the law of possession.

Theanxiety about gun control, i.e., theregulation ofgun possession, arises from this tension,
this uncertainty among those who once clearly identified themselves with thepolicers in their
effort to control undesirables. Privileged members of thepolitical community are appalled to
find themselves treated by the law, if not necessarily by its enforcers, as presumptively
dangerous, and therefore as vagrants, felons, aliens, and "negroes." Pointing to theSecond
Amendment, they challenge thestate's claim to original ownership ofguns as dangerous
instruments, with possessionto be delegated to those deemed worthy. Men of"good moral
character" balk at therequirement that they demonstrate their moral fitness to a state official.

They are, in short, experiencing thevery sense ofpowerlessness so familiar to thetraditional
objects ofpolice control. Now, they too are theoutsiders who find themselves confronted with
thearbitrary discretion ofa superior power, thestate. And this sense ofalienation only grows
when these state-defined sources ofdanger realize that state officials are exempt from
thegeneral prohibition of possession.

This then is thesecond list oftypes one finds in modern possessionoffenses, to go along with
thelist ofinherently dangerous characters like felonsand aliens: thelist oftypes who are
inherently harmless and therefore subject to an irrebuttable presumption offitness to possess a
weapon, without further inquiry into their moral character. What follows is a short excerpt
from theNew York exemption provision:

Section 265.20 Exemptions

a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15
and 270.05 [weapons offenses] shall not apply to:

1. Possession ofany of theweapons, instruments, appliances or substances... by thefollowing:

(a) Persons in themilitary service of thestate ofNew York ....

(b) Police officers ....

(c) Peace officers ....

(d) Persons in themilitary or other service of theUnited States ....

(e) Persons employed in fulfilling defense contracts with thegovernment of theUnited States

2. Possession ofa machine-gun, firearm, switchblade knife, gravity knife, pilum ballistic
knife, billy or blackjack by a warden, superintendent, headkeeper or deputy ofa state prison,
penitentiary, workhouse, county jail or other institution for thedetention ofpersons ....

11. Possession ofa pistol or revolver by a police officer or sworn peace officer ofanother state
while conducting official business within thestate ofNewYork.


b. Section 265.01 shall not apply to possession ofthat type ofbilly commonly known as a
"police baton" which is twenty-four to twenty-six inches in length and no more than one and
one-quarter inches in thickness by members ofan auxiliary police force ....342

But how is this reverse presumption possible? Because theonly relevant victim in modern
criminal law(or rather administration) is thestate, and state officials by definition cannot pose
a threat to thestate, no matter how dangerous theinstruments they possess, and no matter how
prone to violence they are or how bad their character is.343 Only harm against thestate
counts; harm against anyone or anything else does not.

State officials are qualitatively different from therest ofus. They can do no relevant harm.
They cannot illegally possess guns. And thecommunal boundary they police is that between
thestate and everyone else. They, and only they, do the policing. They, and only they, are
thesubjects ofpolice. Everyone else is reduced to its object.

Or so it is in principle, if not in fact. In fact, thewhite middle class still has little to fear,
theNRA's constant warnings notwithstanding. In fact, possessionpolice draws thesame
socioeconomic lines familiar from thedays ofvagrancy, only more deeply, thanks to its vastly
greater punitive potential. Thedevastating impact that the war ondrug possessionhas had
onpoor blacks is well known. Poor blacks also are disproportionately represented among
unlicensed gun possessors and, more im

portant, among "felonsin possession." Weapons arrest rates are five times higher for blacks
than for whites.345

And yet possessionpolice is so much more than a hypercharged vagrancy police. For in
principle, if not in fact, theingroup that protects itself against outside threats is thestate itself,
rather than this or that social, ethnic, or economic group or class. Theultimate victim in a
regime of possessionpolice is thestate, and theultimate offender is thecommunity at large,
rather than a mere subset ofit.

So far possessionpolice merely functions as a more sophisticated cover for thehidden
oppression ofthose social groups that have always been oppressed in theopen. Theever
increasing facial neutrality ofpolice measures has done little more than to insulate long-
standing practices from legal attack. But theremoval ofdistinguishing features from
thedefinitions ofstate norms, for thepurpose ofeliminating open discrimination, not only has
driven thesame discrimination underground. It also has dramatically expanded thegroup
ofpotential police objects from thewell recognized outsiders persecuted by oldstyle police
measures like vagrancy statutes to everyone (and everything) whom (or that) thestate, or
rather a particular state official, perceives as a threat to his authority and therefore to
theauthority of thegrand institution he represents, serves, and protects.


By reducing everyone to a potential threat to thestate, possessionoffenses are symptomatic
ofan apersonal regime of criminaladministration in which persons have a role only as sources
ofinconvenience, as nuisances to be abated, as objects ofregulation. This police regime is
apersonal in three senses: First, it does without personal offenders. Second, it does without
personal victims. And, third, its only victim is apersonal, namely thestate itself considered as
an abstraction, rather than as a group ofpersons.

In the end, everything and everyone is reduced to a nuisance, an inconvenience to state
officials who know best. Contraband is a nuisance; dogs are a nuisance; offenders are a

nuisance; victims are a nuisance; and so is thecumbersome apparatus oftraditional criminal
law. So, offenders are abated, victims rendered irrelevant or used as cover, and theprinciples
of criminal lawignored or openly abandoned as anachronistic remnants ofa time when
theregulatory nature of criminal lawhad not revealed itself, and when the criminal lawwas
about personal rights, rather than social interests.


Theirrelevance of theoffender's personhood is obvious. We already have noted, prior to our
exploration of theplace of possessionoffenses in an apersonal police regime, that the"public
welfare" takes "offense" as soon as it is threatened by, literally disturbed by, anyone and
anything. Hence, thepreventive measures ofsocial control put in place for its protection will
attach themselves to any threat, whether it emanates from a person or not. Hence, there is no
need to worry about that peculiarly human question of"guilt." Likewise, thereluctance to
criminalize thefailure to act (something ofwhich plants are capable) evaporates, status
(namely that ofbeing dangerous, again a familiar attribute ofdogs, objects, and natural
phenomena) is freely punished in open defiance of thevenerable actus reus principle, mere
presence (also something well within thecapacity ofinanimate objects) is enough for penal
intervention, infancy and insanity defenses are irrelevant, and so onand so on.

We have seen how possessionhas been adapted to assist thestate in its identification and then
eradication ofhuman sources ofdanger. Possessionhas proved very useful because it bears
theform ofa traditional offense while it is in substance merely an instrument ofnuisance
control. Its form therefore is theonly concession to thepersonhood ofits objects. Thestate
generally does not find it necessary to pour measures for thecontrol ofthreats emanating from
animals, inanimate objects, or natural phenomena into themold ofa criminalstatute, which at
least onits face is addressed not only to state officials but also to those who might fall within
thescope ofits prohibition.


Perhaps less obvious, this system ofnuisance control also has no room for persons as victims.
Once again, possessionrecommends itself as a useful tool, this time not because it's
offenderless, but because it's victimless. Take gun possession, for instance. Possessing a gun
harms no one. Using it may, but we're not talking here about themany statutes that
criminalize improper gun use, say, to kill someone. We're talking about simply possessing,
not using, not abusing,346 not even owning, a gun. Conviction ofa possessionoffense does
not require theprosecution to show that thegun was used to harm anyone, or anything for that
matter. Again, this doesn't mean that thegun might not in fact also have been used to cause
some harm. This simply means that, even if it was, that result is not required for a conviction
ofpossessing thegun. That's why possessionworks both individually and in conjunction with
other charges. Depending on thecase, a prosecutor can either go after the possessionalone or
can use the possessioncharge as a fall back in case themore serious offense-which involved
theuse, but not the possession of thegun-does not stick for one reason or another. Possessionis
theuniversal velcro offense.

Theabsence ofa victim is convenient in two ways. First, it lightens theprosecution's burden
ofproof. It's always easier to prove possessionthan it is to prove its use against a particular
victim in a particular way at a particular time. Why? Because use includes possessionso that
every use is also a possession, but not every possessiona use. Plus, we already saw how easy
it is to prove possession.
Second, and most important, victims are a nuisance. They slow down theprocess. They forget
things, lose evidence, misremember facts, change their stories. They miss appointments. They
try to drop charges. They want harsher penalties, they want lower penalties. They just want
their money back, or their hospital bills paid for. They require attention, even handholding.
They may be annoying, greedy, poor. In fact, victims

tend to resemble offenders in every socio-economic category, including race, income,
residence, gender, and even age.347

Victims are in theway. They are a hindrance to theefficient disposal ofdangers, which is what
the war on crime, ostensibly fought ontheir behalf, is all about. And therecent creation
ofvictims' rights to give victims more say in more aspects of the criminalprocess only makes
things harder on theprosecutor who is just trying to do her part in thestate's grand scheme

How much cleaner, faster, and more convenient is a victimless crimelike possession, with no
victim to deal with? No victim to notify about court hearings, trial dates, or negotiations with
defense counsel. No victim to be consulted about charges, about plea arrangements, about
trial strategy, about sentencing, about everything.

As a victimless regulatory offense, possessionis a perfect creation of thestate. Who is
offended, whose interests violated, by possessing a gun? No one in particular, except thestate.
Theonly clear violation ofa personal interest, and a heavily guarded personal interest at that,
occurs not in thecommission ofa possessionoffense, but in its punishment.

1. Property! What Property?

To put it more succinctly, theonly personal victim ofa possessionoffense is theperson doing
thepossessing, or being thepossessor. Thepunishment of possessiondirectly interferes with
thepossessory interest of theperson in possession of thething in question. And traditionally,
that possessory interest has enjoyed extensive protection in American law. Interference with
someone's possessiongives rises to criminalliability (in theform of the crime oflarceny) and
civil liability (in theform of thetort oftrespass).

In fact, courts have from early onenforced thepossessory interest even ofwrongful possessors.
Since the crime oflarceny protects possessionper se, thethief can be thevictim ofanother thief.
This age old doctrine has been interpreted as an attempt

to deter theuse ofself-help, which in medieval English lawwas treated as contempt of theking,
who claimed themonopoly ofviolence.349 To engage in self-help, for example by using
violence to retake stolen goods or land illegally possessed, drew into question theking's
ability to maintain thepeace ofhis realm by punishing theillegal possessor. At thesame time,
theuniversal prohibition ofinterference with possessionalso reflected thecentral significance
assigned to thepossessory interest itself. Theviolent retaking ofstolen goods was prohibited
for thesame reason that theinitial larceny was prohibited-it interfered with thecurrent
possessor's interest in theobjects, even though theoriginal possessor's ownershipremained
undisturbed. It was larceny, since larceny was theinterference with possession, period.

So close is theconnection between larceny and possessionthat thehistory of the law oflarceny
is largely thehistory of theconcept of possession. In this context, theconcept of
possessionalready displayed theconsiderable malleability that would allow it to play such an
important role in theuse of possessionoffenses as flexible policingtools. Interestingly,
thejudicial use of possessionto expand theborders oflarceny already had obvious
policingovertones. This manipulation oflarceny with thehelp of theinvention of theconcept
of"constructive possession" occurred against thebackground ofmaster-servant law, with
theeffect ofdramatically expanding theservant's liability vis-ak-vis theproperty ofhis lord.
Originally, servants could not steal objects entrusted to them by their lord for thesimple
reason that they had legally acquired possession ofthem. What they already possessed they
couldn't steal, since larceny was theinterference with someone else's possession. This
loophole was eventually closed to better protect thelord's property against disloyal-but not yet
thieving-servants. So thecourts invented theconcept ofconstructive possession. Theservant, it
was decided in theeighteenth century, had only "custody" of theobjects handed to him by his
lord, while possession, constructive possession, remained with themaster. Hence, when
theservant ran away, or

otherwise misappropriated theobjects constructively possessed by his lord, he committed

That the possession of theobject has been prohibited by thestate makes no difference-it can
still be stolen. Even thepossessory interest in contraband is protected against interference by
another. Again and again, thecourts have upheld convictions for larceny ofcontraband,
including intoxicating liquor352 and gambling devices.353

Yet, it is an entirely different story when thestate rather than another person interferes with
theotherwise so strictly guarded possessory interest. A full discussion ofthis topic would take
us too far afield since it would require an investigation of therelationship between thepower
ofeminent domain and theregulation ofreal property under thepolice power. A brief look at
thestate's authority to interfere with personal property, or chattel, will suffice for our
purposes, especially since theprivileged position of thestate will come through loud and clear
even in this limited context. This limitation also makes sense because larceny originally was
limited to personal, as opposed to real, property and the possessionoffenses that concern us
here all prohibit the possession ofpersonal, not real, property.

State officials enjoy very wide authority to commit acts that would constitute larceny if
committed by a private person. Any seizure ofproperty by a police officer, as opposed to a
brief inspection, is, technically speaking, a theft-it permanently interferes with thepossessory
interest ofa person. Notice that this theft occurs long before thestate action that tends to
receive thelion share ofattention, forfeiture. Thedisposal offorfeited property presumes a prior
theft and constitutes an additional offense: destruction ofproperty or criminalmischief.354
Similarly, an arrest is on theface ofit an assault355 and false or un

lawful imprisonment; themere entrance into a house to execute a search warrant a
trespass;357 imprisonment is, once again, false or unlawful imprisonment; and execution is
pr/ma facie murder.358 In each case, what distinguishes one from theother is that one is
justified and theother isn't.

But what provides this justification? Theanswer is, in a state-centered system of criminal law,
thestatus of theactor as a state official. In fact, and increasingly also in law, theinquiry begins
and endswith thequestion whether theputative thief was a police officer or not. So entrenched
is thenotion that status alone justifies theactions in these situations that thevery need to
inquire into a justification is dismissed as preposterous. This was not always thecase. In
nineteenth century America, trespass actions against police officers who entered private
residences were not uncommon and not always unsuccessful.359

Thepoint is not that no justifications would be available. In fact, larceny and each of
theoffenses listed above-with theexception ofassault and murder-often have justifications
built into their very definition ("having no right to do so nor any reasonable ground to believe
that he has such right,"360 "not licensed or privileged,"366 unlawful,362 "false"363).
Thepoint is instead that these justifications are irrelevant, that no state official needs to avail
himself ofthem. State officials are by their nature implicitly exempt; it is as though every
criminaloffense, no matter how serious, contained thefollowing silent clause: "except if it is
committed by a state official." A criminalcode littered with this clause would drive home
thepoint that theofficial (non-civilian) makers, appliers, and enforcers ofpenal norms lie
beyond their reach.

This tacit exemption for state officials is rarely made explicit. This is why thelengthy and
detailed list of"exemptions"

from gun possession laws, which we encountered earlier on, is so remarkable. Imagine if
every provision in every criminalcode, in fact every criminalprovision anywhere, were
followed by an exemption provision like this:

Theprohibition of[insert name of crimehere] shall not apply to:

(a) Persons in themilitary service of thestate,

(b) Police officers,

(c) Peace officers,

(d) Persons in themilitary or other service of theUnited States,

(e) Wardens,

(f) Prison guards,

(g) Members ofany auxiliary police force.

An exemption differs from a defense. While a defense exculpates someone who has engaged
in facially criminalconduct, an exemption removes theconduct from therealm of crime. To
defend oneself against an allegation of criminalbehavior is to provide reasons for that
behavior or to plead for mercy. To claim an exemption, by contrast, is to do just that. It is to
deny theneed for a defense, an explanation, a plea for mercy. It is instead to claim that
thegeneral criminal lawsdo not apply to oneself for one reason or another.364

Status-based exemptions thus shield state officials from criminalliability under the lawsthey
generate, apply, or enforce. They turn ona fundamental distinction between thesubject and
theobject ofgovernance. Lawsare made for others, applied against others, and enforced
onothers. Thelegislator, thejudge, thepolice officer never imagines herself as theobject, but
rather always only as thesubject ofgovernance, i.e., theone doing thegoverning, rather than
theone being governed.

Exemptions join theunder-the-table immunity ofstate officials from criminalliability as
testimony to thepower of thestate to protect its own.365 As every state official knows, he is

immune against thesort ofpolice measures thestate uses to keep therest ofus under control.
Few, if any, police officers, prosecutors, judges, and legislators will receive a speeding ticket.
Police officers especially, who are so identified with thetask of policingas to bear its name,
are effectively exempted from therules they apply.

Viewed in this light, theradical distinction between private and state interference with a
person's possessory interest in personal property merely exemplifies a fundamental
distinction between private and state action typical ofcontemporary criminal law. Thecontrast
is nonetheless startling in its starkness, given that Anglo-American lawso long has been so
unyielding in its protection ofpossessory interests against private interference. At a time when
thedistinction between state and private larceny was not yet obvious to all, courts
occasionally found themselves in theuncomfortable position ofhaving to immunize thestate
while at thesame punishing theperson for thesame act.

Take, for example, the1923 case ofPeople v. Otis from New York. Here, Mr. Otis argued
against his larceny conviction for stealing whiskey on theperfectly reasonable-though by now
hopeless-ground that he couldn't be convicted oftaking possession ofsomething from
someone who had no right to possess it. Unfortunately for theNew York Court ofAppeals, it
couldn't dismiss this argument, as many other courts had done before it and have done since,
simply by referring to theold common lawthat saw stealing from someone who had no right
to possess theitem stolen, and perhaps had stolen it himself, as still stealing. (Any other
conclusion, so theargument went, would mean "to discourage unlawful acquisition but
encourage larceny," to quote a much trotted out phrase.366) Otis's case was different because
theNew York legislature had, in its prohibitionary zeal, declared that "'no property rights shall
exist' in liquor illegally possessed."367

But, thecourt went on, since "[t] here can be no larceny ofproperty not subject to ownership. .
Now then, it is asked,

may there be larceny ofsuch liquor?"368 Theanswer was, simply, that thestate was different.
Thepurpose of theNew York legislature's broad declaration was not to immunize private
persons from larceny liability for dispossessing private persons ofillegally possessed
whiskey. No, thepurpose was to immunize thestate from criminaland, more important, tort
liability for doing theexact same thing. There was some cause for concern since every wave
ofprohibitionary legislation in thenineteenth and twentieth century had brought with it a slew
oftort suits and constitutional challenges by liquor owners who saw their inventory turn into
contraband, and their often substantial investment into a (criminal) liability, from one day to
thenext. And unlike thecourts in most other states, with thenotable exception ofIndiana,
theNew York courts had once proven receptive to these complaints.369 Thestate, in short,
meant to immunize itself, not anyone else. And since Otis was anyone else, he was out
It was in thenineteenth century challenges to liquor prohibition, i.e., theprohibition of
thesimple possession ofliquor, that American courts took their hardest-and so far only-look at
theoppressive potential of possessionoffenses. Theprohibition ofliquor possessionwas a
harbinger ofthings to come, also because it fit into a comprehensive police regime that began
with a general licensing requirement. At theoutset, nineteenth century liquor regulation
looked much like it does today-and, as we'll see, generally resembled theregulation ofguns.
To sell liquor, one needed a license. Selling liquor without a license was a crime. According
to William Novak, these penal provisions were "a constant feature oflocal lawenforcement,"
at least in Plymouth County, Massachusetts.370 A 1787 Massachusetts lawprovided that
liquor licenses were to be granted by town selectmen only to applicants whom they found to
be "person [s] ofsober life and conversation."371

This license system was simple, but it was not strict enough for temperance enthusiasts. By
the1830s, outright prohibitions

ofliquor began to appear, culminating in a much copied Maine liquor law of1851. Under this
new regime, licenses were still granted, but they were restricted to "special municipal agents
for medicinal and mechanical purposes."372 Now, for thefirst time, the possession ofliquor
was criminalized. Liquor possessed in violation ofthese lawswas subject to confiscation and
summary abatement as a public nuisance, without compensation.

Much of thelitigation and commentary triggered by these new lawsfocused ontheir procedural
aspect. So, for example, Massachusetts Chief Justice Lemuel Shaw was inspired to write an
eloquent opinion on thedemands of"due process," even in thecase of theforfeiture and
destruction ofcontraband liquor.373 There was also much handwringing about theretroactive
effect of thesudden condemnation ofonce valuable property held by businessmen, who at one
time or another were at least reputable enough to have passed thecharacter test ofa liquor
licensing officer, perhaps more than once.

These musings, though often extensive, are oflittle interest to us, expect perhaps to point out,
once again, thetendency ofAmerican jurists to evade difficult substantive questions by delve
ing into detailed, but secondary, procedural ones. Far more interesting are two-now
celebrated-cases in which courts addressed thesubstantive question ofwhether thestate may
interfere with theproperty rights ofliquor owners through statutes that prohibited, among
other things, the possession ofliquor. 374

In Beebe v. State,374 theIndiana Supreme Court struck down, as an unjustified interference
with theright to property, an 1855 Indiana lawproviding that "no person shall manufacture,
keep for sale, or sell" liquor. Violations of the lawwere punished with confiscation and
destruction of theliquor and fine. Beebe had refused to pay thefine and landed in prison.
Technically, thecase arose out ofhis habeas corpus petition to win release from confinement.
In essence, thecourt concluded that thestatute's radical interference with a person's right to
property could not be justified because theproperty in question was not inherently dangerous,
or, in thecourt's words, because "themanufacture

and sale and use ofliquors are not necessarily hurtful."375 Thecriminalization ofpublic
drunkenness was another question, for "[i] t is theabuse, and not theuse, ofall these beverages
that is hurtful."376
One year later, theNew York Court ofAppeals followed suit, but onbroader grounds. In
Wynehamer v. People, thecourt invalidated the"Act for thePrevention ofIntemperance,
Pauperism and Crime," also passed in 1855, which prohibited thesale ofliquor, as well as its
possessionwith intent to sell, along with its simple possession.377 In thecourt's view,
thestatute confronted liquor possessors with an intolerable dilemma:

Property is lost before thepolice are in motion, and, I may add, crimeis committed without an
act or even an intention. On theday the lawtook effect, it was criminalto be in possession
ofintoxicating liquors, however innocently acquired theday before. It was criminalto sell
them, and under the law, therefore, no alternative was left to theowner but their immediate

TheNew York court based its decision on thesimple, and sweeping, proposition that
thelegislature was not justified in summarily destroying liquor because liquor was private
property, period. What was at stake was nothing less than "a vindication of thesanctity
ofprivate property."379 Unlike their Indiana colleagues, theNew York judges saw no need to
investigate thedangers ofalcohol. Since "all property is alike in thecharacteristic
ofinviolability," theonly thing that mattered was that liquor was indeed property.380 "If
thelegislature has no power to confiscate and destroy property in general," which it clearly
had not, "it has no such power over any particular species."381 In theface ofsuch categorical
principles, a detailed analysis of thedangers ofa particular type ofproperty was not only
unnecessary, but positively dangerous:

It may be said, it is true, that intoxicating drinks are a species ofproperty which performs no
beneficent part in thepolitical, moral or social economy of theworld. It may even be urged,
and, I will admit,

demonstrated with reasonable certainty, that theabuses to which it is liable are so great, that
thepeople ofthis state can dispense with its very existence, not only without injury to their
aggregate interests, but with absolute benefit. Thesame can be said, although, perhaps, upon
less palpable grounds, ofother descriptions ofproperty. Intoxicating beverages are by no
means theonly article ofadmitted property and oflawful commerce in this state against which
arguments ofthis sort may be directed. But if such arguments can be allowed to subvert
thefundamental idea ofproperty, then there is no private right entirely safe, because there is
no limitation upon theabsolute discretion of thelegislature, and theguarantees of
theconstitution are a mere waste ofwords.382

Although theIndiana statute prohibited possessionwith intent to sell and theNew York statute
prohibited possessionwith intent to sell as well as mere possession, neither court focused
onthat aspect oftheir respective statutes. Beebe was convicted ofmanufacturing and selling
liquor, Wynehamer ofselling, and Toynbee, theother defendant in theNew York case, of
possessionwith intent to sell. The possessionquestion didn't come up simply because
thecourts found that theprohibition ofmanufacture and sale alone constituted an unjustified
interference with theright ofproperty. Their discussion applies with even greater force to
theprohibition of possessionwhich ofcourse is even more intrusive than prohibiting
thecreation and alienation of theitem possessed.

If theprohibition of possessionwas insignificant, so was thedistinction between different kinds
of possession, namely simple possessionand possessionwith intent to sell. That distinction,
however, played a crucial role in several later decisions reviewing liquor statutes containing
possessionclauses and other possessionoffenses. Theprohibition ofsimple possessionwas
struck down, and theprohibition with intent to sell was upheld, on thegeneral ground that
mere possession"neither produces nor threatens any harm to thepublic."383 For example, an
1889 Michigan case invalidated the1887 amendment to thestate liquor lawwhich made it a
crimeto "keep [liquor] in his possessionfor another" on theground that:

[T] he keeping ofliquors in his possessionby a person, whether for himself or for another,
unless he does so for theillegal sale ofit, or for some other improper purpose, can by no
possibility injure or affect thehealth, morals, or safety of thepublic; and, therefore, thestatute

such keeping in possessionis not a legitimate exertion of thepolice power.

We have already encountered theRhode Island case, which, in upholding an 1882 statute
making it a crimeto "have in his possessionadulterated milk, to wit, milk which contained
more than eighty eight per cent. ofwatery fluids, and less than twelve per cent. ofmilk
solids.... with intent then and there to sell thesame," stressed that "[t]he offence consists not in
the possession of[adulterated] milk ... but in theintent to sell or exchange such milk, ,385
implying that there would have been trouble had it prohibited mere possession.

Now, as we saw, thedistinction between simple and compound possessionhas lost much ofits
significance because ofimplicit and explicit presumptions that, emanating backward and
forward in time, could quickly generate upon prosecutorial demand not only theintent to sell,
but all manner ofillegal acquisitions and alienations of theobject simply possessed.
Thesignificance ofthese nineteenth century cases, however, does not lie in their recognition of
thedistinction between different types of possession, but in their deep respect for theproperty
rights of thepossessor. Fine doctrinal distinctions, such as that between simple and compound
possession, were carefully drawn precisely because thecourts knew that they were entering a
sensitive area when they were reviewing statutes massively interfering with property rights,
even to thepoint ofprohibiting not merely theacquisition and sale, but even themere
possession ofcertain items ofproperty, or as theWynehamer court put it, theexistence of
thething itself.386

Today, this concern about the policing ofcontraband property has completely disappeared.
Today's legislatures and courts don't think twice about thelegitimacy ofcriminalizing not only
themanufacture and sale (along with virtually every imaginable means ofacquisition and
alienation), but also the possession ofcertain items. In fact, contemporary criminal lawnot
only punishes the possessionwith intent to sell, but simple possession. And it not only
punishes simple possession, but simple possessionwith no mens rea requirement ofany kind.
Today thelegitimacy of possessionoffenses is so far beyond the

shadow ofa doubt that we punish simple possessionwith life imprisonment without parole,
which is a far cry from themodest fines imposed by thestatutes that so incensed theBeebe and
Wynehamer courts. So oblivious are we to theotherwise so heavily guarded property rights at
stake in possessionoffenses that we completely ignore that aspect of theproperty police that
drew theharshest criticism from nineteenth century courts: theautomatic confiscation and
destruction ofcontraband, supplemented by thewidespread "forfeiture" (i.e., confiscation and
disposal) ofany property, real and personal, somehow connected to some criminalactivity or
other, which more often than not consisted precisely in the possession ofcontraband,
specifically drugs.
2. Opium, Chinese Immigrants, and the War on Crime

How did we get from there to here? Theanswer is dangerous drugs, dangerous outsiders, and
a depersonalized criminal lawas danger disposal, or, more simply, opium, Chinese
immigrants, and the war on crime.

Possessionoffenses are a fairly recent invention in Anglo-- American criminal law. We know
already that thecommon lawdid not recognize any possessionoffenses, simple or compound,
because "thebare possessionis not an act."387 To punish possessing "indecent, lewd, filthy,
bawdy and obscene prints" with intent to publish, stamps which could impress thescepter
oncoin with intent to utter sixpences for half guineas, or counterfeit coin with intent to utter
would amount to punishing a mens rea without an actus reus, "an intent without an act."388
No one would have dreamed ofpunishing simple possession, without any intent, since then
both mens rea and actus reus would be missing.

English statutory lawhad no similar compunction about criminalizing possession, and for that
matter simple possession, directly. Thecrown was not shy about enlisting theextraordinary
preventive potential ofsuppressing the possessioneven before theuse. A good, and early,
example is thetreason statute 8 & 9 Will. 3 c. 26, which provided:

That whoever (other than thepersons employed in theMint) shall make or mend, or assist in
themaking or mending, &c. any puncheon, counter-puncheon, matrix, stamp, die, pattern or
mould, ofany materials whatsoever, in or upon which there shall be, or be made or impressed,
or which will make or impress thefigure, stamp, resemblance, or similitude, ofboth or either
of thesides or flats ofany gold or silver coin current within this kingdom... or shall have in
their houses, custody, or possession, any such puncheon, counter-puncheon, matrix, stamp,
die, or oar tool or instrument before-mentioned, shall be adjudged guilty ofHigh Treason.

After early attempts to use gun possessionto police blacks, thepunishment ofsimple
possessionin American criminal lawbegan in earnest when thewestern states, and Oregon in
particular, decided it was high time to police two new serious threats to thewell-being of
thecommunity, one an inherently dangerous object, opium, and theother an inherently
dangerous race, theChinese. The1887 Oregon "Act to regulate thesale and gift ofopium,
morphine, eng-she or cooked opium, hydrate ofchloral, or cocaine" provided that "[n] o
person shall have in his or her possessionor offer for sale" any of thedrugs enumerated in
thetitle "who has not previously obtained a license from thecounty clerk of thecounty in
which he or she resides or does business."390

In Ex parte Mon Luck, a Chinese man, who had been imprisoned under this new law, filed a
habeas corpus petition to regain his freedom, pointing out that courts had struck down
statutes prohibiting thesimple possession ofliquor as unjustified uses of thepolice power. In
response, thecourt explained that opium, unlike alcohol, was dangerous per se and its use,
therefore, necessarily constituted abuse. It was "admitted by all to be an insidious and
demoralizing vice, injurious alike to thehealth, morals, and welfare of thepublic."391

But not only was opium qualitatively different-and more dangerous-than alcohol, that
traditional American beverage ofchoice. At least as important, thepeople who possessed it
were likewise qualitatively different-and more dangerous-than Americans. As thecourt
explained, opium, again unlike alcohol, "has no place in thecommon experience or habits of
people ofthis country."392 The"public's" well-being was threatened by aliens, theChinese,
through their very presence, but in particular through their possession ofan alien substance
which, due to its inherent and mysterious dangerousness, was certain to drive "theweak and
unwary... to their own physical and mental ruin."393

In other words, thedangerous Chinese must be prevented at all costs from using thedangerous
opium to ruin theAmerican-alcohol drinking-community. Given thevital importance ofthis
campaign ofpreventive communal self-protection for thevery existence of thecommunity,
thelegislature could not afford to detain itself with legal niceties. Quick and decisive action
was called for. There simply was no time for luxuries such as qualms about
theunconstitutionality ofdestroying property rights in an object by prohibiting its sale, and if
not its sale, then certainly its possessionwith intent to sell, and if not its possessionwith intent
to sell, then certainly its simple possession.

Such worries were entirely misplaced not only because thesituation was so desperate and
thethreat to theAmerican community so serious. They were also simply inappropriate given
theobject of thenecessary police action: threats. It made no difference whether these threats
emanated from thepossessor or theitem possessed, or, for that matter, theinterplay of thetwo.
Possessor and possessed were relevant only as threats, and threats don't have constitutional

In the end, thepossessor and thepossessed, and therespective threats they embodied, were
indistinguishable. Theperceived dangerousness ofopium derived in large part from
theperceived dangerousness ofthose who possessed it, particularly in theabsence ofscientific
research into theconstitution and effeet ofopium. In the end, however, it mattered little whose
dangerousness infected theother. This identification ofpossessor and possessed emerges
clearly from a remarkably-and unusually-honest federal court opinion upholding
theconstitutionality ofa predecessor to thestatute at issue in Mon Luck.394 The1885 statute at
issue in Ex parte Yung Jon, "An act to regulate thesale ofopium, and to suppress opium
dens," prohibited the

sale, and not yet the possession, ofopium. In rejecting Yung Jon's habeas corpus petition,
thecourt conceded that opium use was "now chiefly confined to theChinese," and even that,
in direct contradiction to thereasoning of theOregon court in Mon Luck ten years later, "[s]
moking opium is not a vice."995 But more important, even stunning, was its conclusion:
"therefore it may be that this legislation proceeds more from a desire to vex and annoy
the'Heathen Chinee' in this respect, than to protect thepeople [!] from theevil habit."396
Perhaps even more remarkable, however, was that thecourt, having just let thecat out of
thebag, squeezed it right back in, on theground ofno less sweeping a principle
ofconstitutional adjudication than that "themotives oflegislators cannot be thesubject
ofjudicial investigation for thepurpose ofaffecting thevalidity oftheir acts. "397

Whether "to vex and annoy the`Heathen Chinee"' or "to protect thepeople from theevil habit"
ofopium smoking, or both at thesame time, Oregon's opium statute amounted to an all out
war on theChinese and opium, with thegoal ofextinguishing them as potential sources
ofthreats to "thepeople," before they had a chance to manifest their inherent noxious
potential. Theopium possessionstatute thus must be seen as part ofa comprehensive, two-
pronged, effort to eliminate theChinese threat: by keeping them out, by expelling them from
thebody politic, and, if this proved impossible for some reason, by subjecting them to
intensive police control through simple possessionoffenses. The possessionoffenses proved
useful police tools for thenow familiar reasons, including easy detection and proof, followed
by incapacitation. In addition, conviction could result in thepreferred means of policing:
expulsion through deportation.

Although this police campaign emanated from thewestern states, it soon engulfed theentire
nation. Federal interference was necessary, prohibiting Chinese immigration. And a new
administrative agency, theImmigration and Nationalization Service, was needed to police
theinflux ofChinese. This is not

theplace for a detailed recounting of thehistory of thegrowth ofAmerican immigration lawas
an anti-Chinese police measure, especially since this story has been told recently and with
great success.398 This discriminatory purpose also requires no great interpretative unearthing
because it appears brazenly on thesurface, for theentire world to see. TheChinese were so far
beyond thepale, and everyone knew that they were, that a camouflage for racism was
unnecessary. As thefirst Justice Harlan put it matter offactly in 1896, thesame year theOregon
Supreme Court decided Mon Luck, in his dissent in Plessy v. Ferguson, now celebrated as a
plea for theconstitutional enforcement ofracial equality: "There is a race so different from our
own that we do not permit those belonging to it to become citizens of theUnited States.
Persons belonging to it are, with few exceptions, absolutely excluded from our country. I
allude to theChinese race."399 Harlan's point? The criminalprohibition against blacks riding
in white-only railroad cars was patently irrational since thesame prohibition did not apply to
theChinese who, as was common knowledge, were inferior to and even more despised than

A federal case from thesame period-1892 to be exact, and thus falling between Mon Luck and
Yun Jon-made theconnection between containing thedangerous Chinese and their dangerous
opium as police measures explicit. Thequestion in this case out ofLouisiana was whether
thecourt had criminaljurisdiction over an illegal Chinese immigrant, Hing Quong Chow, who
had been "found" in theUnited States in violation ofa federal statute providing that "any
Chinese person or person ofChinese descent ... shall be adjudged to be unlawfully within
theUnited States, unless such person shall establish by affirmative proof, to thesatisfaction
ofsuch justice, judge, or commissioner, his lawful right to remain in theUnited States."400

Thecourt dismissed theindictment on theground that thecase involved a matter ofpreventive
police, not ofretrospective punishment. As such, it was something for an immigration

commissioner, not a judge. Along theway, thejudge gave a telling reading of thestatute
which, he explained:

. . [d]eats with thecoming in ofChinese as a police matter, and is there-enacting and
continuing what might be termed a 'quarantine against Chinese.' They are treated as would be
infected merchandise, and theimprisonment is not a punishment for a crime, but a means
ofkeeping a damaging individual safely till he can be sent away. In a summary manner, and
as a political matter, this coming in is to be prevented.

This being a police matter, then, rather than a punishment matter, theprinciples ofsubstantive
and procedural criminal lawwere suspended. As an object ofpolice, rather than ofpunishment,
as a danger to be eliminated, rather than as a person guilty ofa criminalact, Hing Quong
Chow was a threat carrier, a nuisance, and thus depersonalized enjoyed thesame individual
rights as "infected merchandise." There was no mens rea requirement, no actus reus, no
inquiry into guilt, no conviction, no trial, no judge, no jury, no presumption ofinnocence, no
burden ofproof on thestate, and, ofcourse, no punishment:

Thematter is dealt with as political, and not criminal. Thewords used are those which are
ordinarily found in criminalstatutes; but theintent ofcongress is . . . unmistakable. What is
termed "being convicted and adjudged" means "found," "decided" by thecommissioner,
representing not the criminal law, but thepolitical department of thegovernment.

A reversal of thepresumption ofconduct or presence being lawful might be introduced into
procedures which were political in character, and assimilated to those relating to quarantine
.... Thewhole proceeding ofkeeping out of thecountry a class ofpersons deemed by
thesovereign to be injurious to thestate, to be effective ofits object, must be summary in its
methods and political in its character.402

Themere fact that thestatute provided for one year's imprisonment at hard labor didn't mean
that it was a criminal lawrather than a police measure any more than did its employment
ofterms "ordinarily found in criminalstatutes." No, theimprisonment also was a matter
ofquarantine: "[H]e must keep from entering thecommunity of thepeople of theUnited States,
and therefore is to be imprisoned. To prevent expense to thegovernment, and as a sanitary
matter, he is to be made to work."403

Ofcourse, theracist immigration policies against theChinese fit into a comprehensive, local
and national effort in thenineteenth century to exclude, and if that proved unsuccessful, to
police all immigrants. Like vagrants and tramps, immigrants as a group posed a dual threat to
the"public welfare" as potential criminalsor potential public charges. Theconstitutionality
ofthis police regime was never seriously questioned. So in New York v. Miln, theSupreme
Court in 1837 upheld a New York statute requiring ship captains to post bond for each
passenger to cover any expenses theport city might incur in poor relief as "a mere regulation
ofinternal police":

We think it as competent and as necessary for a state to provide precautionary measures
against themoral pestilence ofpaupers, vagabonds, and possibly convicts; as it is to guard
against thephysical pestilence, which may arise from unsound and infectious articles
imported, or from a ship, thecrew ofwhich may be labouring under an infectious disease.404

Still, in their open racism and harshness, theanti-Chinese policies stood apart from this
general discrimination against aliens in thename ofsocial hygiene. Unlike other, particularly
European, immigrants, theChinese were not simply presumptively dangerous, they were
dangerous per se. And so was opium, making it theparadigmatic Chinese drug. Unlike liquor,
theintoxicant ofchoice among Americans and European immigrants alike, opium was
inherently dangerous, so dangerous that only complete prohibition, even ofits possession,
would stand any chance ofcontaining its noxious nature.

Eventually, theinstrument ofpolice through possessionspread from opium to other dangerous
drugs, and from theChinese to other dangerous classes, and, ultimately, with thedevelopment
ofa state centered criminal law, to theentire "public" as a giant dangerous class. In the end,
thevery public whose welfare originally was protected against outside threats thus finds itself
transformed into an outside threat, this time to theinterests of thestate, all ofcourse ostensibly
in theinterest ofits own welfare. Through theuse offacially neutral, abstract, police offenses
like possession, camouflaged as traditional criminalstatutes, thepublic endsup being policed
by thestate for its protection from itself.

In thearea ofdrug police, theanalogue to thegeneral prohibition ofgun possessionwithout a
state issued license that onits face applies to thevery people of"good morals" whom it is
designed to protect, is theprohibition ofmarijuana possession. Designed in theearly decades of
thetwentieth century along thelines of theearlier Chinese opium model as a campaign to
police another class ofdangerous aliens, Mexican immigrants, this prohibition fulfilled its
regulatory function admirably, at least at first. It was an added benefit when marijuana use,
and therefore thescope ofits police through possessionoffenses, spread in the1920s to another
troublesome outgroup, urban blacks and black jazz musicians in particular. It didn't hurt
either that "'degenerate' bohemian subcultures" soon took up thedrug as well.405

Thefacially unlimited scope ofmarijuana possessionoffenses did not become apparent until
the1960s, when thechickens came home to roost. Having entrusted itself with thepower to
punish marijuana possession, period, thestate began to apply that power against members of
thevery community whose integrity, whose order, these lawswere, in practice though not
onpaper, designed to protect. Suddenly the"sons and daughters of themiddle class"406 found
themselves theobjects ofpolice, demoted to thestatus ofa dangerous outgroup. And thus
theenormous police potential of possessionrevealed itself to those who had always thought
ofthemselves as thepolicers, rather than thepoliced. As Richard Bonnie and Charles
Whitebread pointed out in 1970, "[s]ince marijuana use has become so common, there are
certain student and hippie communities in which thepolice could arrest nearly everyone. Here
theproblem ofselective enforcement necessarily arises-- thepolice arrest those they dislike for
other reasons . . . ."407 Substitute "gun or drug possession" for "marijuana use" and "urban
blacks" for "certain student and hippie communities" and thestatement captures an important
aspect of the war on crimetoday.

To recapitulate, theright to property ofpossessors ofcontraband today is as irrelevant as their
other personal rights sim

ply because they are considered not as persons, but as threats. Threats cannot have rights.
They also can't be victims. Thedifference between thenineteenth century cases carefully
reviewing, and in some cases overturning, statutes interfering with theright to property in
liquor and contemporary cases upholding statutes prohibiting simple possession ofdrugs
without any proof ofmens rea, including negligence, is thedifference between respectable
white Americans who enjoy their occasional drink or who run a liquor related business and
opium smoking Chinese immigrants or their contemporary analogue, theinner city "drug
fiend." Over time, theformally abstract but substantively discriminatory system of
possessionpolice showed its potential as a convenient means ofstate oppression, not only
ofrecognized outgroups, but ofthose who fancied themselves members of theingroup.

3. TheState as Victim

With theirrelevance of thepossessor himself, all potential personal victims of
possessionoffenses have been eliminated. Only thestate remains. And thestate is defined
precisely in contradistinction to a community ofpersons. Thestate is apersonal because it
ostensibly, and simply, manifests theinterests of thecommunity it governs. It is a bureaucratic
institution with no identity, and no function, except themaintenance of"public welfare"
through theprotection of"social interests." It is that which stands above theparticular groups
that constitute themass ofpeople under its governance, (civil) society or thecommunity at

Left without personal victims, theessence ofa possessionoffense is reduced to disobedience
ofstate authority. At bottom, thefunction of possessionoffenses is to control dangerous
persons and things, i.e., to eliminate or at least to minimize threats. Threats to what? To
the"public's" "welfare," thefundamental "social interest." Thestate defines both "public" and
"welfare," "social" and "interest." Most often, thepublic is simply thedominant group in
society, theingroup. Thestate, however, may also come to identify itself with thepublic and
confuse thepublic's welfare with thestate's. Thefirst case results in intrasocial conflict,
thesecond in consternation among members of the(normally) dominant social group who saw
thestate as theextension oftheir community. Oppression occurs in both cases, either
ofoutsiders by thedominant social group (via thestate) or of thecommunity at large by thestate

Both aspects ofa state-centered criminal law, or rather police regime, are important. Not only
is thestate theonly victim, but thestate, as an abstraction, is an entirely apersonal victim.
Thefirst move eliminates all personal victims, thesecond move insulates thefirst from

Once again, thenotion of thestate as theonly victim is nothing new to modern American
criminal law. Since themiddle ages, English criminal lawhas been conceived ofas a system
ofenforcing theking's peace. And theking's peace in turn was nothing other than thepeace
attached to every householder, his grid or mund."8 Since theking's household eventually
covered theentire realm, rather than his court, any attack within therealm against one ofhis
subjects (an odd, but all too common, oxymoron) also disturbed his peace. In Pollock and
Maitland's words, "[b]reach of theking's peace was an act ofpersonal disobedience," a
personal affront, daring him to exercise his power to keep his house in order.409

And yet again, themodern American state makes for an entirely different victim than did
theEnglish king, much as it makes for a different kind ofpater patriae. Thesignificant
difference here lies in thefact that a breach of theking's peace amounted to a personal
challenge to theking, as a person and not merely as an institution. Every man within theking's
mend was beholden to him personally by an oath offealty, as every man to his lord, ever since
William theConqueror "decree [d] that every freeman shall affirm by oath and compact that
he will be loyal to king William both within and without England, that he will preserve with
him his lands and honor with all fidelity and defend him against his enemies."410

Thestate, unlike theking, has no personal identity. As a total institution, not merely an
abstraction but an abstraction precisely from particular persons and their conflicting interests,
thestate has only an institutional identity. So, counterfeiting is not an offense against theking,
but "a contempt ofand misdemeanor against theUnited States."411

Or so "it" would have us believe. In practice, though not in theory, thestate, ofcourse, is
constituted by certain persons called officials, officers, ministers, judges, and senators.
Although a violation ofstate commands constitutes, technically speaking, an act ofabstract
disobedience against thestate, as opposed to one ofpersonal disobedience against theking, it is
always also an act ofdisobedience against theofficials constituting thestate and one ofpersonal
disobedience against theparticular official issuing thecommand or enforcing it. Themodern
American system ofgovernance thus turns out to be just like thehistorical English one, except
it has no head, or rather its head is not a person, but a deliberately apersonal abstraction. In
theUnited States today, an act ofdisobedience against thestate is an act ofdisobedience against
a particular state official. In England, threats to judicial authority were always also threats to
royal authority because all judges derived their power from a commission issued on theking's
prerogative. As a "judicial officer," a judge represented royal authority to non-officials. As a
"ministerial" officer, however, he was a link in thechain ofcommand moving from theking
through superior to inferior courts.412 Unlike in England, theindignity ofdefiance or
contempt in theUnited States does not travel up theladder to theking, but remains with
thestate official experiencing it first hand, since there is nothing at thetop except a great
abstraction called "thestate."

So, we find that themodern American state takes great pains to protect theauthority, dignity,
safety, and well-being in thebroadest sense, of"its" officials. Acts, even hints, ofdisobedience
are punished severely, and acts ofobedience rewarded. Any interference with thewell-being
ofa state official, physical or otherwise, is likewise threatened with punishment. In general,
theline between thestate and everyone else, between thepolicers and thepolice, is guarded
with great vigilance. So any behavior by thepoliced that is inconsistent with their inferior
status, including theegregious attempt to assume thesuperior status of thestate official on
theother side of theline, is taken as a challenge to theline separating thestate from therest and
therefore represents a welcome opportunity to reinforce that all-important line by putting
thedisorderly and contumacious in their proper place.

Theprotection ofstate officials is achieved through a variety ofstatus-based provisions,
sprinkled throughout modern American criminalcodes. For example, in theNew York Penal
Lawone finds not only a special "assault ona peace officer, police officer, fireman or
emergency medical services professional,"413 along with a special "aggravated assault ona
police officer ofpeace officer,"414 but also a special "assault against a peace office, police
officer, fireman, paramedic, or emergency medical technician . . . by means including
releasing or failing to control an animal."415 As in all modern American death penalty
statutes, first degree murder is elevated to capital murder if thevictim is a police officer,
peace officer, or employee ofa correctional institution.416 Even "killing or injuring a police
animal" is covered in a special provision.

At thesame time, theauthority and dignity ofstate officials is ensured by punishing
disobedience and rewarding obedience. Most obvious are offenses that explicitly criminalize
acts ofdisobedience, including-in theNew York Penal Law-disorderly "conduct" by
"congregat[ing] with other persons in a public place and refus [ing] to comply with a lawful
order of thepolice to disperse"418 (a watered down version of theinfamous English Riot Act,
which criminalized disobedience of theorder to disperse communicated by reading theAct
419), resisting arrest,420 refusing to aid a peace or police officer,421 failing to respond to an
appearance ticket,422 and refusing to yield to a party line.423 Plus, there are extensive and
comprehensive prohibitions ofall manners ofcontempt, including criminalcontempt in thefirst
and second degree, 24 which reaches "[d]isorderly, contemptuous, or insolent behavior,
committed during thesitting ofa court, in its immediate view and presence and directly

to interrupt its proceedings or to impair therespect due to its authority,"425 "intentional
disobedience or resistance to thelawful process or other mandate ofa court except in cases
involving or growing out oflabor disputes,"426 "[c]ontumacious and unlawful refusal to be
sworn as a witness in any court proceeding or, after being sworn, to answer any legal and
proper interrogatory,"427 "[i]ntentional failure to obey any mandate, process or notice, issued
pursuant to . . . thejudiciary law, or to rules adopted pursuant to any such statute or to any
special statute establishing commissioners ofjurors and prescribing their duties or who
refuses to be sworn as provided therein,"428 "contumaciously and unlawfully refus [ing] to
be sworn as a witness before a grand jury, or, when after having been sworn as a witness
before a grand,jury, [refusing] to answer any legal and proper interrogatory," 9 and "in
violation ofa duly served order ofprotection . .. intentionally or recklessly damag[ing]
theproperty ofa person for whose protection such order was issued in an amount exceeding
two hundred fifty dollars."430

Then, for good measure, the criminal lawthrows in provisions punishing disobedience ofother
state officials, beyond judges, police officers, and peace officers, who might issue particular
directions, such as subpoenas. Hence, one finds crimes of criminalcontempt of
thelegislature,431 and even criminalcontempt ofa temporary state commission 432 and of
thestate commission onjudicial conduct.433

For our purposes, most interesting is theoffense of criminal possession ofa weapon in
thefourth degree, which criminalizes "refus[ing] to yield possession ofsuch rifle or shotgun
upon thedemand ofa police officer" by a "person who has been certified not suitable to
possess a rifle or shotgun."434 As a possessionoffense that explicitly punishes disobedience
ofa state official's demand to surrender theobject possessed by persons deemed

"not suitable to possess" it, this offense is theparadigmatic possessionpolice offense in
theguise ofan ordinary criminalstatute.

Theflipside ofthis disobedience possessionoffense is an obedience possessiondefense. So a
"person voluntarily surrendering" a weapon illegally possessed to theproper police authority
thereby joins theselect ranks ofstate officials exempt from criminal possessionstatutes.435

Supplementing offenses that explicitly criminalize disobedience against thestate, or rather
state officials, are impersonation offenses.436 These statutes preserve thestate's monopoly
onoppression not by punishing disobedients, but by exposing impostors. The
criminalimpersonator attempts to obtain for himself therespect that is due only to state
officials. He is a disorderly person of theworst kind, an object ofpolice who tries to pass as its
subject. He is a personal self-counterfeiter who boldly appropriates theexternal indicia
ofinsider status, be it in theform of theking's seal or a police officer's uniform. Theinteresting
feature ofimpersonation offenses is that theimpersonation by itself does no damage to
theauthority of thestate. To thecontrary, it relies on thevery fact that theexternal indicia
ofstatehood suffice to command obedience from outsiders. Instead, impersonation offenses
are offenses against thestate because they represent an attempt to circumvent thestrict
requirements for entry into statehood. Theimpersonator threatens thevery distinction between
police and policed, between state and other, by challenging that fundamental distinction
itself. Theimpersonator pretends as though anyone could become a state official worthy
ofrespect and unquestioning obedience, simply by donning a uniform or displaying a badge.

Apart from criminalizing disobedience to state officials at all levels ofgovernment, the
criminal lawalso punishes disobedience in more subtle ways that extend far beyond specific
disobedience offenses. The law ofsentencing, for example, provides for various contumacy
premiums. Most obvious and most Draconian are thesentencing enhancements for recidivists,
which have been a central weapon in the war on crime.437 These lawspermit, and in many
case require, thejudge to in

crease thesentence based exclusively onprior convictions. They target those offenders who
have revealed themselves as particularly dangerous or particularly disobedient, or both.
Theperiod ofcarceral incapacitation for these "recidivists" is extended, in an increasing
number ofcases until their death. They have proved themselves impervious to previous
threats ofpunishment, and as undeterrable must be incapacitated. In most cases, they also
have thumbed their noses not merely at thethreat ofpunishment, but even at theactual
imposition and infliction ofpunishment. Their repeat offense therefore reflects multiple acts
ofdisobedience against thestate and a disregard for its superior power. Recidivists personify
contempt ofstate authority and, for that reason alone, must be put in their place. That place is
either prison or, in particularly outrageous cases, thegrave, for recidivism is also a symptom
ofdeathworthiness in theAmerican law ofcapital punishment.438

Disobedience is penalized, and obedience rewarded, in other aspects of thesentencing process
as well. As anyone who has ever encountered a police officer-or for that matter a DMV
official-knows, state officials do not appreciate inconvenience. To state officials, ordinary
people represent potential nuisances. Interactions between members ofeach group therefore
are designed, from theperspective of theformer, to abate nuisances. Any additional
inconvenience is not appreciated, no matter what form it might take. Least appreciated is any
behavior that might be interpreted as a manifestation ofdisobedience. Sanctions for non-
cooperation, i.e., additional inconvenience, depend on thenature of theinteraction and
thepower of thestate official. If we stick with police officers, that sanction may range from
formal measures (including further investigation, ranging from frisks to full-fledged searches
of theperson, objects, and places, or theinitiation ofproceedings, which may be accompanied
by an arrest) to their informal, and far more expedient, analogues (harassment and "police
violence," which conveniently compress theimposition and infliction phases of the
criminalprocesses into one act ofdiscipline, as a sort ofsummary nuisance abatement,
including permanent abatement through destruction by theuse of"lethal force").

But police officers are not theonly state officials in the criminaljustice system who do not
appreciate recalcitrance.

Once a nuisance has been passed onto theprosecutor-which means that thepolice officer has
chosen a formal sanction for disobedience, perhaps as a supplement to informal sanctions
imposed and inflicted at thetime of theoriginal encounter between state and nuisance-
the"suspect" is well advised to display a properly respectful demeanor to prevent his
reclassification as a "defendant." Should that reclassification nonetheless have occurred, and
a formal charge ofone kind or another have been filed, thenow-defendant should do
everything in his power to minimize any further inconvenience to theprosecutor, and ofcourse
to thejudge, thenext state official whose valuable time might be occupied with theabatement
of thedefendant-nuisance. Luckily, themodern American criminalprocess has developed
theperfect procedure for this purpose: plea bargaining.

A plea bargain is often nothing more than theexchange ofa reduction in punishment for a
reduction in prosecutorial and judicial inconvenience. It is a form ofpersonal summary self
abatement. Through an act ofsubmission to state authority, thedefendant relieves thestate
officials in question of thetime-- consuming task ofbeating him into submission.
That is not to say, ofcourse, that thesuperior may not decide to go through with this ceremony
ofhumiliation nonetheless. It simply means that theinferior is well advised to assume a
submissive position-to humiliate himself-in order to maximize his chances ofaverting
theimpending attack. This discretion to insist onofficial humiliation in theface ofself--
humiliation helps to account for a startling phenomenon in American criminal law,
theimposition of thedeath penalty ondefendants who have entered a guilty plea.439 Entering
a guilty plea simply means to throw oneself upon themercy of thestate official in charge, thus
acknowledging his superior power.

There is, ofcourse, another model of theplea bargain, which focuses on thefact that it is a
bargain, rather than a plea. And bargaining is said to presume some basic equality among
bargainers. As a theoretical matter, this is entirely correct. And as a participatory model of
theimposition ofpunishment, plea

bargaining is attractive.44 Nonetheless, thereality ofAmerican plea bargaining reflects a
fundamental inequality ofpower between defendant and state officials inconsistent with this
model, no matter how attractive. That is not to say that plea bargaining must always be more
ofa plea than a bargain, but merely that it is.

From theperspective ofa state official, any resistance to punishment by "defendants" is
considered a cumbersome complication oftheir nuisance abatement, which only aggravates
theoriginal nuisance and therefore calls for more radical and permanent abatement. So,
neither prosecutors nor judges appreciate a defendant who prolongs theabatement
proceedings by filing motions, by demanding a trial, perhaps even by having a trial before a
jury, then raising evidentiary objections at trial, and filing post-trial motions or even an
appeal, not to mention collateral motions, such as a habeas corpus petition.

Defendants who do behave themselves so as to accelerate their own abatement can expect
certain benefits, again within thediscretion of therelevant state official. A defendant with
theproper attitude may receive sentence discounts for "acceptance ofresponsibility."441 Or,
he may receive more lenient treatment in exchange for "substantial assistance to [the]
authorities,"442 much like a dangerous weapon, which can escape complete and permanent
incapacitation upon a state official's "certificate that thenon-destruction thereof is necessary
or proper to serve the ends ofjustice."443

Thesame pattern continues, in ever more drastic form, as theperson is transformed from
"suspect" to "defendant" to "convict" to "inmate," and even continues when he becomes
"parolee." In prison, guards constantly struggle to extract from inmates therespect owed a
state official.44 Prison guards are particularly anxious to separate themselves from theobjects
oftheir (and thestate's) power because they occupy a particularly low position in thestatus
hierarchy among state officials. Un

like their fellow frontline officials (who are police officers), prison guards also do not enjoy
most of theaccoutrements ofstate power that help them gain and, if necessary, enforce
respect. Their training is perfunctory, their uniforms unimpressive, they have no patrol cars
with special police engines and ever more advanced communications equipment, and most
important they do not have at their disposal theever increasing arsenal of themodern police
officer, except for its least intimidating and least effective component, thebaton.
Themost blatant evidence of thestate's claim to victimhood in modern American criminal
lawcomes not in theform ofpunishments for disobedience or rewards for obedience. One
finds it where one would least expect it: in thecampaign for victims' rights. So a federal
appellate court determined that thefederal government, and in particular theInternal Revenue
Service, is a victim of thefederal Victim and Witness Protection Act, and therefore entitled to
compensation as a crimevictim.445 Likewise, theCalifornia Penal Code provides, without
theaid ofjudicial interpretation, that "'victim' shall include . . . theimmediate surviving family
of theactual victim" as well as "any ... government, governmental subdivision, agency, or
instrumentality ... when that entity is a direct victim ofa crime."446

Theirony ofthis move must be savored. Here is thestate fighting a campaign onbehalf
ofpersons who have been twice victimized, once by theperpetrator ofa crimeand then by
thestate itself, whose officials treat thevictim like a nuisance rather than a person. And now
that state, which already occupies thepositions ofboth violator and vindicator ofvictims'
rights, classifies itself as thevictim for whose benefit it is fighting the war on crime. In the
end, then, we have thestate violating and vindicating itself.

Small wonder that the war on crimeand thecampaign for victims' rights has been so
tremendously successful. It involves thestate and only thestate, as offender and as victim.

By including itself among thevictims it is protecting from itself, thestate does not deny
theexistence ofpersonal victims al

together. Yet thestate is more than just another victim. It is theparadigmatic victim ofmodern
criminal law. As apersonal, it is qualitatively different than all other victims, including
communal organizations like corporations and other societal entities. Thestate is not simply a
bigger corporation, a wider community, a broader society. It is an abstraction and, as such,
without any connection to persons. It is thepursuit ofsocietal interests itself and, as such,
without rights and without interests. Any interference with thestate is an interference with
theinterests it protects. It is selfless in both senses of theword.


The war on crimerepresents themost advanced and comprehensive manifestation ofthis type
ofapersonal criminaladministration, which begins and endswith thestate, reducing all persons
to objects ofhazard police along theway. But modern criminaladministration has roots that
extend far beyond Richard Nixon's anti-crimecampaign. At thevery height of thecivil rights
era and theWarren Court, American criminal lawwas ripe for theincapacitationist turn of the
war on crime.

Thebeginnings ofrehabilitationism during thefirst quarter of thetwentieth century were also
thebeginnings of theincapacitationism that was to shape American criminal lawduring thelast
quarter of thecentury. By thetime theModel Penal Code was completed, in 1962, theperson
had already been removed from theheart of criminal lawto its periphery.

In the end, theenduring legacy of theWarren Court-in procedural criminal law-and theModel
Penal Code-in substantive criminal law-turned out to be theendorsement ofthreat
minimization as a, if not the, central function of the criminal law. And thetarget of thethreats
to be minimized was thestate, directly and indirectly. Thepreventive-- communitarian-
authoritarian model ofmodern criminaladministration was in place long before the war on
crimeperfected and implemented it ona broad scale.

1. ThePound-Sayre Model

Already Pound and Sayre explained that modern criminal lawwas about social interests, not
about individuals.447 Thestate

was merely theabstract representation ofthese interests. Thestate and theinterests ofsociety
were identical. So, to protect thestate was to protect social interests and to protect social
interests was to protect thestate.

In modern criminal law, personal victims and thevindication oftheir rights play at best a
supporting role. In fact, one may view theelaborate system ofso-called traditional criminal
law, with its discoveries ofbodies, investigations, arrests, trials, juries, verdicts, victim impact
statements, and sentencing hearings, as a convenient cover for theprotection of theone
apersonal victim that matters in the end: thestate. Thestate thus buys its comprehensive
control ofsociety as a whole through thedramatic vindication of theindividual rights ofsome
ofsociety's members. In the end, even theprotection ofindividual rights serves theprotection of

In its role as cover, theindividual victim appears not as an object ofrespect, endowed with
thedignity ofpersonhood. Whether as the policing ofpublic nuisances (in regulatory offenses)
or theunconsidered manifestation ofreflexive impulses (in "true crimes"), contemporary
punishment respects neither offenders nor victims as persons. Thefirst, administrative, model
simply views both victim and offender as expendable. The"victim" is thepublic (as in
"public" nuisances) or perhaps even thestate itself (as in pure disobedience offenses). Under
thesecond, traditional, model thevictim emerges as consumed by a rage as confused as it is
uncontrollable, and theoffender as an alien threat to thesurvival of theherd. Overcome with
thegrief and sense ofpowerlessness often associated with victimization, thesobbing victim
begs theall-powerful state to apply "a salve to help heal those whose rights and dignity have
been violated...." 448 And thestate is all too happy to oblige.

In fairness to Sayre it must be said that he saw not only thepromise ofa state-based criminal
law, he also recognized some ofits dangers. He did not fully appreciate thegeneral tendency
ofmodern criminaladministration to bend, if not to abandon, principles of criminal law.
Instead he focused, somewhat excessively, on thedilution ofa single principle, that ofmens
rea. By making mens rea thedefining characteristic ofpolice offenses, he even can be said to
have unwittingly facilitated the

radical extension ofDraconian police offenses that paid homage to mens rea, but abandoned
other principles, while circumventing mens rea through presumptions. Still, with respect to
this particular means ofrendering thestate's job ofnuisance control less inconvenient, Sayre
clearly saw thepotential for state oppression:

Themodern rapid growth ofa large body ofoffenses punishable without proof ofa guilty intent
is marked with real danger. Courts are familiarized with thepathway to easy convictions by
relaxing theorthodox requirement ofa mens rea. Thedanger is that in thecase oftrue
crimeswhere thepenalty is severe and theneed for ordinary criminal lawsafeguards is strong,
courts following thefalse analogy of thepublic welfare offenses may now and again similarly
relax themens rea requirement, particularly in thecase ofunpopular crimes, as theeasiest way
to secure desired convictions.449

Sayre even captured much of theessence of themodern police regime, which renders it such a
formidable machine for thediscretionary suppression ofstate defined nuisances: "convenience
in theinterest ofeffective administration depending in part upon thevagueness ofits limits."450

What's more, Sayre noticed a particular manifestation ofthis potential for oppression in his
own days, which was to play a key role in theblossoming of criminaladministration into the
war on crimesome fifty years later: drug criminal law. As Sayre reminds us, theSupreme
Court's cavalier treatment of themens rea requirement began with a case involving an early
federal drug statute, theNarcotic Act of1914. Thedefendants in that case, United States v.
Balint,451 had been convicted of thetax offense of"unlawfully selling to another a certain
amount ofa derivative ofopium and a certain amount ofa derivative ofcoca leaves, not in
pursuance ofany written order ona form issued in blank for that purpose by theCommissioner
ofInternal Revenue."452 They protested that they weren't charged with knowing that thedrugs
were "inhibited," so that it wouldn't make a difference if they mistakenly thought otherwise.
Thetrial court agreed and threw out theindictment. In a very short opinion,

theSupreme Court unanimously reinstated theindictment on thebasis of thefollowing

[I] n theprohibition or punishment ofparticular acts, theState may in themaintenance ofa
public policy provide "that he who shall do them shall do them at his peril and will not be
heard to plead in defense good faith or ignorance." Many instances ofthis are to be found in
regulatory measures in theexercise ofwhat is called thepolice power where theemphasis of
thestatute is evidently upon achievement ofsome social betterment rather than thepunishment
of the crimes.... 453

Sayre's analysis of theBalint opinion is appropriately blunt and eerily foretelling:
"Thedecision goes far; it can be justified only on theground of theextreme popular
disapproval of thesale ofnarcotics."454 Balint, in other words, was not only thebeginning of
the end of themens rea requirement, as contemporary accounts ofAmerican criminal
lawwould have it-it was a harbinger of thehate driven war ondrugs, which by the end of
thecentury would claim many more casualties among thehallowed principles of criminal law.
In fact, theSupreme Court had sent themens rea requirement packing more than a decade
before Balint, in Shevlin-Carpenter Co. v. Minnesota, a little known case involving an
offense that would go onto play a distinctly minor role in thedevelopment ofmodern
American criminal law: "cutting or assisting to cut timber upon thelands of thestate.455

In the end, however, Sayre saw only thedanger, but not its source. To a progressive reformer
like Sayre thesolution to theproblem ofstate oppression lay, paradoxically, with thestate.
Theproblem was not thestate itself, but its administration. If only one could place state
discretion into thehands ofselfless experts, thediscretionary state would fulfill theabstract
state's potential for good, not evil, and theessential selflessness of thestate would manifest
itself. If those wielding discretion were good, so was thestate. Or, in thewords ofJustice
Frankfurter in an opinion applying Balint some twenty years later: "In such matters thegood
sense ofprosecutors, thewise guidance oftrial judges, and theultimate judgment ofjuries must
be trusted,"456
in exactly that order ofsignificance, we might add, with a sharp decline from theprosecutor to
thejury, since so very few cases ever make it past theprosecutor to any sort offact finder,
never mind a jury.

Thepolice regime of the war on crime, by implementing and developing Sayre's model ofa
modern administrative system that polices dangers to social interests, rather than punish
violators ofindividual rights, points up Sayre's blind spot, one he shared with Pound and
every social engineer ofhis time and since: thefailure to distinguish state from community,
and theresulting failure to perceive thedangers ofan authoritarian state which, acting in
thename of thecommunity, in fact advances its very own interests. Theconcept ofsociety (or
"thesocial") is sufficiently ambiguous to refer either to thecommunity or to thestate, or to
both at thesame time. Yet in the endit is thestate, and not thecommunity, that determines
which "social interests" deserve its penal protection. It is thestate, and not thecommunity, that
decides how to protect the"social interests" it deems worthy ofprotection. And it is thestate,
and not thecommunity, that actually inflicts pain onpersons to make these "social interests"

This scenario is troubling only to those who have lost their faith-assuming they ever had it-in
theideal ofan apersonal state composed entirely ofselfless bureaucratic experts using their
discretion in theinterests, not ofany individual (including themselves), but of thecommunity
or "thesocial." Along with so many oftheir contemporaries, Sayre and Pound were intoxicated
by this ideal. So was an entire generation ofAmerican writers on lawin general, and criminal
lawin particular. This trust in thebenevolence of thebureaucratic state lies at theheart of
theLegal Process School, so many adherents ofwhich cut their teeth during theNew Deal and
thecontrol economy ofWorld WarII. And it forms thefoundation of theentire artifice
ofmodern American criminal law, which was constructed by one of thekey exponents ofthis
sweeping movement, thegreat Herbert Wechsler.

2. TheModel Penal Code

TheModel Penal Code was a characteristically ambitious attempt to bureaucratize American
criminal lawin theLegal Process vein. Sponsored by theAmerican LawInstitute, a blue ribbon
society ofconcerned jurists, and drafted by Wechsler with theassistance ofa group
ofpenological experts drawn from criminal lawand other related disciplines like criminology
and psychiatry, theModel Code placed all discretion in themaking and application of criminal
lawin thehands ofexperts. Thevery need for theModel Code arose from theinability ofamateur
legislatures to appreciate theadministrative complexities ofa truly scientific system ofpenal
treatment. Stuck onatavistic, even barbarian, common sense notions ofpunishment according
to desert, unreflecting legislators were in desperate need ofscientific assistance, which
Wechsler and his collaborators were anxious to provide.457

Once therules of criminaladministration were defined according to theModel Code's expert
blueprint, their actual administration had to be controlled.458 In particular, judicial discretion
had to be eliminated as much as possible by a detailed set ofinterpretative guidelines. While
thejudge retained discretion in sentencing, that discretion was curtailed by a set ofsentencing
guidelines based ona fairly elaborate hierarchy ofoffense grades. These limitations may
appear modest from today's standpoint, after decades upon decades ofever more specific
constraints onjudicial sentencing discretion, culminating in thefederal sentencing
guidelines.459 At thetime, however, theModel Code's sentencing provisions represented a
significant departure from the"law" ofsentencing, which then was little more than a set
oflocal customs varying from courtroom to courtroom, and from judge to judge. Moreover,
thejudge's sentencing decision was subject to review by thehead penological bureaucrat,
thecommissioner ofcorrection, within thefirst year ofpenal treatment, who could petition
thecourt to resentence theoffender, if he was "satisfied that thesentence of theCourt may have
been based upon a misapprehension as to thehistory, character or physical or mental
condition of theoffender."46 Finally, thenature and, most important, theduration ofpenal
treatment, lay largely within thediscretion of thepenological experts in correctional facilities.
Under theModel

Code scheme, judges merely set thegeneral time frame for "correctional treatment"461 in
theform ofindeterminate sentences which might range, in thecase ofa first-degree felony,
from anywhere between one to ten years and one year to life in a "correctional

Theproblem of criminalcodification to Wechsler and his collaborators was a problem of
criminaladministration. As such, it was primarily a staffing problem. The
criminaladministration was as good as its administrators. And thebest administrators were
those best versed in thescience of criminaladministration, penology. Thesystem thus had to be
designed so as to shift discretion into thehands of thepenologists, at least to theextent oftheir
scientific expertise. Traditional actors retained discretion for two reasons: to maximize
theModel Code's chances ofadoption in American legislatures by minimizing theappearance
ofreform and to retain functions that for themoment lay beyond thecurrent state ofpenology.
To illustrate thesecond point, Wechsler eventually realized that thepenologists could not
generate a truly scientific insanity test.463 So, instead ofturning theinsanity inquiry entirely
over to thepsychiatrists, he merely revised thetraditional common lawinsanity test, but gave
psychiatric experts a far greater procedural role in its application. So, theCode provided that
thecourt appoint a psychiatrist as a matter ofcourse, who was to make detailed findings
regarding thedefendant's mental condition, that thedefendant could have himself examined by
a psychiatrist ofhis own choice, and that thecourt hold a pre-trial hearing on theinsanity
question, where theexpert or experts would be subject to direct and cross-examination.
Theexperts would take thestand once again at thesubsequent trial, should thejudge permit
thedefendant to raise theinsanity defense on thebasis of thepre-trial hearing. They may then
get to testify a third time at thepost-trial civil commitment hearing, should theinsanity defense
have succeeded at trial, resulting in a verdict ofnot guilty by reason ofinsanity. There, they
would address thequestion ofwhether theex-defendant, having just escaped the

custody of theCommissioner ofCorrections, would now be entrusted to thecare of
theCommissioner ofMental Hygiene.464 Having recognized thelimits ofpenological science
on theinsanity question, Wechsler thus had thepsychiatrists guide thediscretion of thejudge
and, if necessary, thejury, rather than settle theissue themselves. This arrangement had
theadditional advantage ofoutwardly maintaining thestatus quo, while at thesame time
strengthening theinfluence ofpenological experts in fact.

Now, thesignificance ofshifting discretion on theinsanity issue from experts to lay people, in
particular jurors, should not be overestimated for thesimple reason that theinsanity defense is
rarely invoked and, if invoked, is even less likely to make it past a pre-trial hearing and
before a jury. Still, therole of thejury in theModel Penal Code's bureaucratic scheme deserves
some attention. A body oflay judges is an odd fit for a system built on thenotion ofexpert
efficiency. Whatever a jury trial may be, it is neither efficient nor particularly scientific. In
fact, it would not be an overstatement to say that thejury trial is specifically designed to be
cumbersome and unscientific.

What then is thejury doing in theModel Penal Code-- other than keeping theCode on thegood
side of theSixth Amendment? It is not thecritical voice of thecommunity checking
theotherwise boundless power of thestate. Thejury instead fulfills two other functions. First, it
enables convenient solutions to drafting problems inherent in an attempt to define away
discretion in theadministration of criminal law. TheModel Code drafters repeatedly rely on
the law ofevidence to solve tricky problems in criminal law, in particular by varying and
shifting theburden ofproof through affirmative defenses and presumptions.465 Thedetails
ofthese drafting techniques aren't important here; what matters is that none ofthem would
have been available without thejury. TheAmerican law ofevidence represents a single
sustained attempt to guide thediscretion ofjurors, who are considered to be unreliable and
impressionable fact finders, in contrast to professional judges, whose expert judgments
deserve greater respect-though they too are in considerable need ofguidance, in theopinion of

enable need ofguidance, in theopinion of theModel Code drafters.

Furthermore, and for our purposes more important, thejury plays a role in theidentification
ofdeviants who are in need ofpenal treatment in institutions for thecorrection of thecriminally
abnormal. Repeatedly, theModel Code drafters stress that thejury should determine whether
certain behavior crosses theline between normal and abnormal, between thereasonable and
theunreasonable. Especially in borderline cases, it's up to thejury to decide whether
thedefendant should be marked as deviant, and whether he "deserves" thestigma ofbeing
labeled a criminal, a felon, a murderer, and so on.466

Here, one might find themaking ofa communal corrective ofstate oppression. Whether thejury
actually performs that function, however, depends crucially on thecommunity it is meant to
represent. If thejury represents thecommunity ofinsiders which more or less openly conspires
with thestate to police outsiders, thejury becomes a terrible instrument ofoppression, which
contributes to oppression by wrapping it in themantle oflegitimacy. Thejury can only fulfill
its critical function, by giving thecommunity a voice in themachinery ofstate power exercised
in its name, if thecommunity it represents is that of theobject ofstate power. In thetrial against
a black slave defendant, a jury ofwhite slave owners oppresses, a jury ofblack slaves

TheModel Penal Code doesn't show much interest in this function of thejury, nor in theall-
important question ofrepresentativeness. Although theCode has a great deal to say about
other procedural matters (including, for instance, theelaborate procedures for theparticipation
ofexperts in insanity cases), that omission by itself is perhaps not significant. Still, by
integrating thejury into thecomprehensive administrative process ofdeviance diagnosis,
theModel Code in characteristically pragmatic fashion manages to retain a traditional
institution of the criminal lawwhile reinterpreting its function. Thefact remains that thejury is
fundamentally inconsistent with theModel Code's general bureaucratic approach.
Thepenologist at the

heart of theCode's model of criminaladministration through thediagnosis and treatment
ofdeviants has about as much need for a lay jury as does a brain surgeon.
At thevery least, theModel Penal Code's treatment of thejury does nothing to prevent thejury's
subsequent development into that silent instrument ofoutsider police which it can become if
one disregards its function as communal critique ofstate oppression. Thejury of the war on
crimerepresents theinsider community ofpotential and actual victims, bound together through
identification with theparticular victim's experience. It does not represent theoutsider
community ofoffenders. As a result, it merely reinforces thecommunal hatred captured by
thestate's accusation, labeling, and eventual disposal of theoutside threat to thecommunity
ofvictims. Thejury is eager to do its part by aligning itself with thevictim in a united front
against external evil.

As slave owner juries once sat in judgment over their fellow slave owner, rather than his
accused slave, so contemporary American juries more often than not sit in judgment over
their fellow victim, rather than his accused victimizer. Only now theobject oftheir attention
and identification stands to lose nothing from thehumiliation and disposal of theostensible
focus of thetrial. Unlike theslave owner, whose proprietary interests were at stake in thetrial
ofhis human capital, thevictim today is seen as benefiting from thepunishment of"his"
offender. Thetransition from identification to condemnation, therefore, is so quick and easy
as to become indistinguishable: to identify with thevictim is to condemn theoffender and vice
versa. Anything less than an act ofcommunal hatred against theoffender would bespeak a
failure to identify with thevictim. And not to identify with thevictim implies identifying with
theoffender, and therefore excluding oneself from thein-group, or rather revealing oneself as
already having been deviant to begin with.

Thejury in this form facilitates, rather than checks, state oppression. It facilitates state
oppression ofa particular kind, namely thestate assisted oppression by a societal in-group
with access to state power. So, juries have done little to prevent, and much to aid, race based
oppression throughout theUnited States, and not only because so very few cases are disposed
ofofter a jury trial. They simply provide a veneer oflegitimacy to state oppression.

Juries can play thesame role in direct state oppression, i.e., oppression ofanyone and anything
outside thestate understood as theultimate in-group. Theinfamous German Volksgerichtshof
(People's Court), which handed out scores ofdeath sentences under theNazis, featured several
lay judges, who lacked theformal independence ofjurors and therefore provided a thinner
veneer oflegitimacy. These lay judges made no difference whatsoever to theoperation of
thecourt, apart from whatever little legitimacy they could contribute.46s

ThePeople's Court lay judges were hand-picked by theNazis for their commitment to
stamping out enemies of thestate, which Hitler long ago had identified-along with theNazi
party and, ofcourse, himself-as theultimate manifestation of theGerman community (theVolk)
thanks to his claimed ability to identify "its" social interests. These enemies of thestate, it
bears emphasis, appeared to thenaked eye to be members of theGerman community.
TheVolksgerichtshof is most famous for its disposal ofactual and suspected participants in
thefailed July 20, 1944 assassination attempt onHitler. Thedefendants who were humiliated in
various ways before thetribunal (for example, by removing thebelts from their loose fitting
pants) and then hanged onmeat hooks included high ranking officers of theGerman army and
public officials, all ofwhom had acted in pursuit of thewell-being of theGerman community
by ridding it of thestate in its personification as Adolf Hitler.

In thetotal National Socialist state we therefore find both theidentification ofcommunity and
state, and theuse of thejury (or, more precisely, lay judges) as representatives of
thecommunity to enforce theinterests of thestate against those of thecommunity. ThePeople's
Court manifested theinterests of theultimate state ingroup, Hitler and his associates, against
an attack from thecommunity, whose interests thestate ostensibly protected. Theentire
community had become theobject ofpolice, rather than its subject.

Given theexperience ofNazi terror, theresult ofwhich Wechsler saw first-hand at Nuremberg,
it is surprising that thePound-Sayre model ofstate-centered criminaladministration survived
World WarII intact and managed to exert such influence on theModel Penal Code. Thejury
question here is only

symptomatic ofa general phenomenon. Wechsler's faith in thebenevolent bureaucratic state
and theconcomitant failure to recognize thedistinction between thecommunity and its state--
or thepublic and its public servants-never wavered. In this fundamental respect, nothing
distinguishes Wechsler's 1952 plan for theModel Penal Code from his 1937 blueprint for
American criminal lawreform ("A Rationale of the Law ofHomicide") .470 The1937 piece
itself is a prolonged attempt to work out theimplications of thePound-Sayre model for
thedoctrine of criminal lawin general, and the law ofhomicide in particular.

Wechsler, in this seminal article, both implemented thebureaucratic model of criminal
lawand, by expanding it to theheartland of criminal law, illustrated its weakness. Like Sayre,
Wechsler's Model Code recognizes theneed for strict liability offenses, while limiting this
device ofprosecutorial convenience to minor offenses. Sayre had gone so far as to define his
public welfare offenses, which could be sanctioned without proof ofintent, as minor offenses.
For that reason, he had no room for serious strict liability offenses, such as bigamy, statutory
rape, adultery, and drug offenses.471 These were, Sayre explained, "wholly unlike public
welfare offenses, and although often cited among thecases of thelatter, are subject to
altogether different considerations,"472 whatever these considerations might be. (Sayre didn't

Not only that, but theway theModel Code retained strict liability offenses also deserves
attention. TheCode simply declared that strict liability offenses were not crimes, but an
altogether different kind ofanimal, a sui generis category ofcivil, not criminal, offenses
dubbed "violations."473 Moreover, theCode drafters punted on thedifficult issue ofSayre's
public welfare-and strict liability--offenses by restricting thescope oftheir project to
traditional criminal law. In an appendix, thedrafters remarked simply that "a State enacting a
new Penal

Code may insert additional Articles dealing with special topics such as narcotics, alcoholic
beverages, gambling and offenses against tax and trade laws."474

In this way, theCode could have its cake and eat it too. It could declare its categorical
rejection ofstrict criminalliability, yet retain strict liability for any offense deemed civil,
rather than criminal. And what was a violation? Whatever thelegislature declared it to be.
Only in theabsence ofa legislative classification did theCode place any limits onwhat might
be considered a violation, and therefore punished without criminalintent: a violation could
not be punished by imprisonment, though no limits applied to other punishments, including
fines and forfeiture, which thelegislature remained free to, set at whatever level it pleased.475
Even these timid limitations were frequently ignored by state legislatures that picked up
theModel Code's general endorsement ofstrict liability offenses without its limitation to
"violations" and defined violations more generously to include offenses threatened with short
term imprisonment.476

As we saw earlier, one of theweaknesses in Sayre's conception ofpublic welfare offenses was
his obsession with mens rea. He mistook strict liability for theessence ofmodern
criminaladministration, rather than as a mere symptom. Modern criminaladministration is by
nature apersonal and state-centered. Theabandonment ofmens rea is merely a symptom of
thegeneral irrelevance ofpersonhood and theprimacy ofconvenience in thestate's enforcement
ofits commands. This also means, conversely, that theabsence, or even theemphatic rejection,
ofstrict liability does not imply theabsence ofmodern criminaladministration. Thedistinction
between "true crimes" and "public welfare offenses" does not survive simply by retaining
mens rea for theformer.477

As Wechsler made clear, modern criminaladministration can swallow traditional criminal
lawwhile at thesame time proclaim its strict adherence to theprinciple ofmens rea. Wechsler
expanded theadministration model from theleast serious and most modern to themost serious
and least modern ofoffenses, from Sayre's public welfare offense to first-degree mur

der. With theexpansion ofoffenses came an expansion ofsanctions. Where Sayre had to
contend only with fines, Wechsler's account of criminaladministration covered theentire
range ofpenal measures, all theway to capital punishment.

Sayre sketched a model ofmodern criminal lawas bureaucratic risk management. Wechsler
expanded that model to cover theentirety of criminal law, including thesocietal response to
those "true crimes" which Sayre was so anxious to leave untouched. In such an apersonal and
state-based system of criminal law, theretention ofmens rea is ofno significance, other than as
a camouflage. Thesystem ofdanger control applies equally to a strict liability offense like
thesale ofadulterated milk, and to a mens rea offense like premeditated murder. In both cases,
theperpetrator appears as a threat to societal interests that requires suppression.

Wechsler's-and therefore theModel Penal Code's-regime of criminaladministration is
apersonal with respect to both offenders and victims. It treats offenders as nonpersons insofar
as it regards them as criminaldeviants "disposed to commit crimes" who pose a threat to
"individual or public interests." It treats victims as nonpersons insofar as it subordinates
theprotection of"individual" to that of"public interests," and penalizes interference with
thelatter without any connection to theformer.

a) apersonal offenders

TheModel Penal Code did not break new ground in criminal lawtheory. It merely
implemented a long-standing consensus about theobjective ofpenal law-"theprevention
ofoffenses"478-where offenses were defined, vaguely, as "conduct that unjustifiably and
inexcusably inflicts or threatens substantial harm to individual or public interests."479
Offenses were to be prevented by extinguishing threats, either through deterrence or, if that
failed, through treatment. Treatment, in turn, came in two basic forms: rehabilitative and
incapacitative, including the"extreme affliction sanction" ofdeath. 480

And whatever treatment turned out to be, everyone agreed what it was not and could never be
in a rational regime of
criminaladministration: punishment. Like every other enlightened writer on criminal lawsince
at least the1930s, theModel Code drafters studiously avoided theterm "punishment."481
Punishment was passe, treatment very much en vogue.482

So eager was theCode to extinguish threats, rather than to punish crimes, that its goal was not
merely to prevent theinfliction ofharm, but already themere threat ofthat infliction.483
Preventing theinfliction ofharm was too close for comfort. TheCode preferred to intervene
earlier on, when thethreat had not yet appeared, never mind manifested itself, in theform
ofactual harm suffered. Potential threats were to be extinguished, before they could blossom
into full-fledged threats. Theobjective of criminal lawwas to prevent not threats, but threats

If the criminal law-through its criminalcode-didn't succeed in extinguishing thethreat
personified by a particular potential offender, then it was time for penological treatment. In
thewords of theCode, thetime had come "to subject to public control persons whose conduct
indicates that they are disposed to commit crimes."484 That "public control," ofcourse, had
nothing to do with the"public," except if thepublic was synonymous with thestate. State
control would take whatever form, and last however long, the"correction" of theoffender's
particular criminaldeviance required. Once that treatment was complete, theoffender-now
cured ofhis "disposition to commit crimes"-could reenter thecommunity ofnormals, except
ofcourse if he turned out to have been incorrigible, in which case some extreme affliction
sanction or another would be indicated. Thecorrigible deviants were treated through
rehabilitation, theincorrigible ones through incapacitation, but treated they all were, one way
or theother.

TheModel Penal Code was but thefirst half of theModel "Penal and Correctional Code," as it
is properly called.485 Thegeneral and special parts of thePenal Code, dedicated to the

general principles of criminalliability and thedefinition ofspecific offenses, respectively,
guided thepenological diagnosis that determined theappropriate correctional treatment. As
theCode drafters saw it, "[i]t ought to be theobjective of the criminal lawto describe
thecharacter deficiencies ofthose subjected to it in accord with thepropensities that they .
manifest."486 And these character deficiencies, and with them theoffender's abnormal
disposition to commit crimesalong with his extraordinary dangerousness, were ironed out
according to thescheme laid out in theCode's second half, theCorrectional Code, which
encompassed parts III & IV of thePenal and Correctional Code, entitled "treatment and
correction" and "organization ofcorrection," respectively.

This diagnosis of criminaldeviance with thehelp of thePenal Code's categories ofliability
(general part) and offenses (special part), however, not only aided thepenologists' prescription
of theproper, rehabilitative or incapacitative, treatment. Before thedeviant could be treated, he
first had to be identified.

TheCode, therefore, places tremendous emphasis on thedetection ofabnormally dangerous
individuals and ofexceptional criminalthreats. The criminal lawshould interfere early and
often. There's no reason to wait for theinfliction ofharm, because theinfliction ofharm is ofno
significance, other than as theconcrete manifestation ofa particular individual's
criminaldeviance. Other indicia ofabnormal dangerousness are far preferable. As a threat
radar, theCode consistently errs on theside ofearly intervention, often long before thethreat
has transformed itself into harm.
So, theCode explicitly criminalizes thecreation ofdanger. It devotes a substantial portion ofits
special part to defining "offenses involving danger to theperson."487 There, we find offenses
that do so much more than those that "involve danger to theperson," including murder,
manslaughter, negligent homicide, and rape. Thedrafters presumably were less worried about
theoddness ofcharacterizing a homicide as a type ofdanger to a person than they were eager
to indicate what they con

sidered to be their progressive focus onthreats, rather than harm.

This threat-based category made room for a new offense, "recklessly endangering another
person,"488 which codified thegeneral principle ofthreat neutralization theCode drafters
detected behind "antecedent statutes addressed only to ad hoc situations, such as reckless
driving br a motor vehicle or reckless use offirearms."489 Once again, it authorized penal
intervention already on thebasis ofpotential, and not merely actual, threats. It subjected to
state control anyone who "recklessly engages in conduct which places or may place another
person in danger ofdeath or serious bodily injury."490

Another advantage of thenew crime ofreckless endangerment was that it conveniently
supplemented the law ofattempt, by authorizing state control ofdangerous individuals who
lack theproper mens rea-purpose-for an attempt conviction, at least in cases "involving"
serious "danger to theperson," to wit, death or serious bodily injury. In theCode's view of
criminal lawas threat elimination, "[t]he primary purpose ofpunishing attempts is to
neutralize dangerous individuals."491 This had Draconian consequences. First, theCode
expanded theconcept ofattempt to reach any conduct "strongly corroborative of theactor's
criminalpurpose."492 What mattered, in theCode drafters' eyes, was not whether some
abstract line separating preparation from attempt had been crossed, but whether theoffender
had revealed that level ofdangerousness, that abnormal criminaldisposition, which indicated
theneed for penal treatment.

Second, theCode rejected theimpossibility defense. Once again, thefocus was on theoffender's
abnormal dangerousness, not thelikelihood-or even theimpossibility-of theactual infliction of
criminalharm. In other words, theoffender's criminaldisposition-thethreat he posed as a
criminaldeviant-- required state intervention even if his particular conduct posed no threat to
anyone or anything.

Third, it punished attempt much more harshly than before, namely as harshly as its
consummation. This must be so because someone who goes through thetrouble ofattempting
a crimeis just as dangerous, and suffers from thesame general disposition to commit crimes,
as theperson who succeeds in attaining his criminalgoal. "To theextent that sentencing
depends upon theantisocial disposition of theactor and thedemonstrated need for corrective
sanction, there is likely to be little difference in thegravity of therequired measures depending
on theconsummation or thefailure of theplan."493

Consistent with its treatment-or rather its neutralization-- ofattempters as threats, theModel
Code did not hesitate to criminalize possessionas an inchoate inchoate offense. Possession,
like attempt, demanded correctional interference because it indicated that thepossessor was
"disposed to commit crimes," theassumption being that possessing a particular object wasn't a
crime, while using it could be. Still, since theCode sought to prevent crimes, rather than to
punish them, merely posing a threat ofa crimecould be treated as a crimein and ofitself. In
theCode, possessionis simply another endangerment offense.
In addition to several possessionoffenses among theCode's special part, part II, which
contains thedefinitions ofspecific offences, one finds two crucial and broad-sweeping
possessionoffenses in its general part, part I, containing thegeneral principles of
criminalliability that apply to all offenses in thespecial part: possession ofinstruments of
crime, including firearms and other weapons, and possession ofoffensive weapons.494 These
two provisions appear, appropriately, in thearticle oninchoate crimes, following theCode's
expansive definitions ofattempt, solicitation, and conspiracy, each ofwhich criminalizes
thepropensity to commit some crimeor another. Thefirst, and more general,
possessionprovision makes it a crimefor anyone to "possess[] any instrument of crimewith
purpose to employ it criminally," with instrument of crimedefined loosely as "anything
specially made or specially adapted for criminaluse" or "anything commonly used for
criminalpurposes and possessed by theactor under circumstances which do not negative
unlawful purpose."495

This general possessionoffense is not so much an offense as a theory of criminalliability, or
rather a diagnosis ofdangerousness, that no longer has anything to do with punishment for
harmful conduct. In theprocess, it stretches thealready broad traditional offense ofpossessing
burglar's tools (such as the19th century English statute prohibiting being "found by Night
having in his Possessionwithout lawful Excuse (theProof ofwhich Excuse shall lie onsuch
Person) any Pick-- lock Key, Crow, Jack, Bit, or other Implement ofHousebreaking"496)
beyond recognizability. It punishes the possessionpure and simple, rather than the
possessionwith an intent to commit a particular crime. No such intent need be proved; the
possession of"anything commonly used for criminalpurposes" ofsome form or another, will
do. 497 It's punishment not merely for an intent to commit a particular crime, but for an intent
to commit some crime. In other words, it's punishment for a criminaldisposition.

In its search for indicia ofdangerousness, theModel Code pays particular attention to one
class ofobjects, weapons. It goes without saying that weapons are included among
theinstruments of crime, possession ofwhich is criminalized. Weapons are also conveniently
defined to include not only firearms, but "anything readily capable oflethal use and possessed
under circumstances not manifestly appropriate for lawful uses which it may have."498 Even
"firearm" is defined generously to include "a firearm which is not loaded or lacks a clip or
other component to render it immediately operable, and components which can readily be
assembled into a weapon."499 What's more, weapons unlike other instruments of crimeare
presumptively possessed "with purpose to employ [them] criminally." And that's not all: even
the possessionitself is presumed, if theweapon is found in a car. And so, mere presence turns
into possessionturns into possessionwith intent to use it "criminally." If we put it all together,
theModel Code criminalizes being in thepresence of"anything readily capable oflethal

use." Why? Because that presence alone is a symptom ofa "dispos [ition] to commit crimes."

This theory of criminalliability, ofcourse, flies in theface of theCode's very own act
requirement. As theCode announced in its general part: "A person is not guilty ofan offense
unless his liability is based onconduct which includes a voluntary act or theomission to
perform an act ofwhich he is physically capable."501 Even in its most explicit endorsement
ofincapacitation, theCode insists that one ofits "general purposes" is "to subject to public
control persons whose conduct indicates that they are disposed to commit crimes."502

TheCode resolves this difficulty with characteristic simplicity: through legislative (or
codificatory) fiat. Possessionis an act because theCode says it is. Right after
theannouncement of thecategorical act requirement, we learn that "[p]ossession is an act ... if
thepossessor knowingly procured or received thething possessed or was aware ofhis control
thereof for a sufficient period to have been able to terminate his possession."503 Possessionis
criminalized as a symptom of criminaldeviance. Since only acts may be criminalized,
possessionis declared an act.

Thepersonhood of thepossessor is as irrelevant as thepersonhood of the criminaldeviant.
Possessionis convenient for thediagnosis ofabnormal dangerousness, as opposed to
thepunishment ofpersons for wrongful acts, precisely because it is a state, and as such can be
experienced by any living creature, persons and nonpersons alike. Animals, in other words,
can possess, but they cannot act. Likewise, animals can possess, but cannot own; and they
can behave, but cannot act.

Thesuspension of theact requirement, whether it is through thecriminalization of possessionor
ofomissions (i.e., failures to act), expands the criminal lawbeyond therealm ofpersons.
Personhood, then, is no longer a prerequisite for punishment, or rather treatment. Any living
creature can possess; anyone, even anything, can fail to act.

And any living creature, along with a host ofinanimate objects and natural phenomena, can
pose a threat. In a view of criminal lawas singularly concerned with theextermination of

potential threats as those underlying theModel Code, theoffender is ofinterest only as a threat
personified. As a result, criminal lawis radically depersonalized. There is nothing necessarily
personal about a threat. Threats can emanate from anything and anybody. And theproper way
ofdealing with threats is their elimination, without any reference to guilt or other uniquely
personal considerations.

This is not to say that remnants of thepersonal offender can't still be found in theModel Penal
Code, at least on thesurface. So, theCode insists onproof ofsome sort ofmens rea for all
crimes(as we noted above) and provides for various justification and excuse defenses that
shield even offenders acting with therequired mens rea from criminalliability. But neither
theconsideration of theoffender's mental state nor theavailability ofdefenses implies that
theoffender is punished as a person. Instead, theCode's mens rea scheme and thegrading
ofoffenses onits basis can be seen as classifying offenders by dangerousness. Themental state
simply reveals thelevel of criminaldisposition, once thegeneral presence of the"dispos[ition]
to commit crimes" has been diagnosed. Theinquiry into mental states thus allows for a fine
tuning of thegeneral diagnosis of criminaldeviance, with an eye toward prescribing
theappropriate mode and length of thepeno-correctional regimen.

Defenses have a similar function. Causing a threat to relevant interests triggers thepenal
response. Thepresence ofmens rea indicates a deviant disposition to commit crimes.
Thelevels ofmens rea indicate thelevel and nature ofthat disposition. Theinitial diagnosis
ofdeviance based ona finding ofmens rea, however, can be adjusted in theexceptional cases
where mens rea does not imply deviance. These exceptional cases are captured by
thedefenses ofjustification and excuse. For example, according to theModel Penal Code
commentaries, thedefense ofclaim ofright (where theoffender acts under thebelief, however
mistaken, that theproperty he stole belonged to him) is needed because "[p]ersons who take
only property to which they believe themselves entitled constitute no significant threat to
theproperty system and manifest no character trait worse than ignorance."504
Theavailability ofdefenses thus doesn't mean that their beneficiaries are persons. They also
are not inconsistent with an apersonal regime ofhazard control. As we've seen, theNew York
dog control statute includes a full panoply ofjustification defenses. What's more, thestatute
refers to thedog's "conduct," another concept that one might have thought had no application
outside thesphere ofpersons. Here too, there is a remarkable similarity to theModel Code.
Like theCode, thedangerous dog lawdoesn't focus onconduct for its own sake. Conduct is
only relevant as an indication ofdangerousness. What matters in the endis whether thedog is
dangerous, i.e., whether it "poses a serious and unjustified imminent threat ofharm to one or
more persons."505 That's why thedog isn't punished for having done something, namely
inflicted harm, but for being something, namely dangerous. Theonly difference between
theCode and thedangerous dog lawis that thelatter doesn't bother with prevention. In the end,
both are about theidentification and disposal ofthreats, one personal, theother not.

b) apersonal victims

Having transformed theoffender into an apersonal deviant threat, theModel Code also largely
depersonalizes thevictim. Recall that theCode defines crimeas "conduct that unjustifiably and
inexcusably inflicts or threatens substantial harm to individual or public interests."506
The"individual or public interests" protected by offenses defined in theCode include, in that
order, "theexistence or stability of thestate," "theperson," "property," "thefamily," "public
administration," and "public order and decency.""' As we saw earlier, theCode also recog

nizes thestate's authority "to insert additional Articles dealing with special topics such as
narcotics, alcoholic beverages, gambling and offenses against tax and trade laws."508

In other words, thevast bulk of theCode's criminal lawconcerns not individual interests, but
communal interests, ranging from theprotection of the"family" (!) to that of the"corporation"
or "unincorporated association," then to the"public," and ultimately the"state." Theprimacy
ofpublic interests, and particularly theinterests of thestate as such, is easily overlooked, even
if thebulk of theCode is dedicated to offenses protecting communal interests ofone kind or
another. To conclude that theCode restricts thescope of criminal lawto thevindication
ofpersonal rights against personal interference is to misunderstand theCode's scope, and
thereby to mistake theCode for theentirety of criminal law. That misunderstanding,
unfortunately, is fostered by theCode drafters themselves. So, thefinal version of theCode
contains no reference to the"victimless" police offenses. Theabove quoted appendix appeared
in theProposed Official Draft, not in theFinal Draft. Similarly, theFinal Draft makes no
mention of thevery first category ofoffenses, namely those against theexistence or stability of
thestate. Again, only a note in theProposed Official Draft as much as hints that theCode
drafters recognized theexistence, never mind thecentral importance, ofthis category-and, for
that matter, of thestate itself:

This category ofoffenses, including treason, sedition, espionage and like crimes, was
excluded from thescope of theModel Penal Code. These offenses are peculiarly theconcern of
thefederal government. ... Also, thedefinition ofoffenses against thestability of thestate is
inevitably affected by special political considerations. These factors militated against theuse
of theInstitute's limited resources to attempt to draft "model" provisions in this area. However
we provide at this point in thePlan of theModel Penal Code for an Article 200, where
definitions ofoffenses against theexistence or stability of thestate may be incorporated.509
Without this note, thefinal version of theCode creates themistaken impression that thefirst
interest to be protected by the criminal lawis theparadigmatic individual interest in
theexistence of theperson (in article 210 (criminalhomicide)). In

stead, thefirstness of thefirst interest to be protected belongs to theparadigmatic public
interest in theexistence and stability of thestate.

TheModel Penal Code did not altogether eliminate thevictim as person. If we include
thecategories ofstate and police offenses, thesecond of theseven offense categories, after all,
is explicitly dedicated to theprotection of"theperson." Characteristically, this category deals
with offenses "involving danger" to theperson, and thereby combines thevagueness typical
ofa police regime ("involving") with its focus onthreats, rather than harm ("danger").

TheCode defines "person" broadly to include not only "any natural person," but also "a
corporation or an unincorporated association."510 Thedrafters, however, here appear to have
thought ofoffenders, not victims, and we've already seen that theoffender as person had no
place in theCode's model of criminaladministration through danger control. TheCode does
not define "victim."

The"person" protected in thecategory of"offenses involving danger to theperson" is
theindividual, or "natural," person who is thevictim ofa homicide, an assault, a kidnapping, or
a rape. Thesame could be said for offenses in thenext category, "offenses against property,"
though here already theCode turns its attention from theperson to an interest, property, which
may be either individual or public. It is theinterest that theCode seeks to protect, not
theperson holding it. Only one of theoffences against "theproperty system,"511 robbery,
presumes an individual victim because it presumes an "offense involving danger to
theperson," assault: robbery is theft (an offense against property) plus assault (an offense
involving danger to theperson). Theultimate, or true, victim ofa robbery, however, is
apersonal since thecore ofrobbery is theft, and not assault. It is, after all, theft plus assault,
and not theother way around. That is why robbery appears among theproperty offences, and
not theperson offenses.

Still, thevictim ofa property offense may, though it need not, be a person. Thenext offense
category, offenses against thefamily, is thefirst one explicitly to protect not an individual,

but a community. Whereas thethird offense category protects an interest (property), which
may be held by individual or communities, and is in this sense apersonal, thefourth offense
category protects not an interest, but a community, thefamily. By definition (or rather by
categorization) offenses against thefamily are not offenses against persons, at least not
directly. They may be construed as offenses against persons only indirectly, by conceiving
ofthese persons as members ofa family. So, bigamy, incest, and child neglect obviously (and
abortion not so obviously) affect individuals, but they also victimize thefamily, at least
according to theModel Code.

Theremaining three categories bear an even more remote relation to individual persons.
Offense categories five and six concern the"public" (as in "public administration" and "public
order and decency"), whereas theseventh, and last, category, that ofpolice offenses, once
again protects thestate, and thereby closes thecircle originating with thefirst category,
of"offenses against theexistence and stability of thestate."
In the end, thevictim as person plays a subordinated role in theModel Code. It finds itself
sandwiched between apersonal victims, beginning (and ending) with thestate, but also
including thefamily and thepublic, as well as an abstract interest, property. TheCode begins
with thestate and endswith thestate. Along theway, it touches upon theperson, in thesecond
category ("offenses involving danger to theperson") but then immediately proceeds to remove
theperson, by reducing it, first, to incidental significance (as potential holder ofa property
interest), next, to indirect significance (as members of thefamily and thepublic), and,
eventually, to insignificance (as object ofstate police).

Therelative insignificance ofpersonal victims in theModel Code raises themore general
question of thesignificance ofso-- called traditional, or "true," crimesin modern
criminaladministration. TheModel Code goes a long way toward shifting thecore of criminal
lawfrom interpersonal crime-ofpersons against persons-to apersonal offense-ofthreats against
interests, communities, and ultimately thestate, a shift first described (and applauded) by
Pound and Sayre. This new model of criminal lawbehind thenew model ofa criminalcode
remained unchallenged even during theliberal constitutional challenges against
criminalstatutes of the1960s and early 1970s. It found its fullest and most comprehensive
implementation in the war on crime of thedecades since then.

3. The War on Crime

In the war on crime, thetraditional criminal law-with its central ceremony, thejury trial-is not
only pushed into theperiphery, but also is relegated to a mere means to the end offacilitating
theenforcement of thenew core of criminal law. As a cover for theefficient and silent
administration of thebulk ofoffenses, theentire elaborate system oftraditional criminal
lawserves a function not unlike themens rea and actus reus principles in theModel Penal
Code: its retention-with therequisite exhortations ofits crucial significance-serves to hide its
irrelevance. In this way, theremnants oftraditional criminal lawserve to legitimate modern
criminaladministration. Needless to say, thelegitimacy oftraditional criminal lawitself is
beyond question. Theories ofpunishment are useless not only because punishment is passe,
but also because there's no need to justify anything.

It's not clear to what extent the war on crimemerely spelled out theadministrative program of
theModel Penal Code, or deviated from that program in some significant way. TheModel
Code, as we saw, obscured its underlying program of criminaladministration as state-focused
danger control both through theexplicit retention ofprinciples oftraditional criminal lawand
through theexclusion ofstate and police offenses from its scope. Yet, all of theweapons of the
crime warcan be found in theCode, even if they are not apparent to thenaked eye. On
thesurface, we find theheavy use and expansive definition ofinchoate offenses, thefull arsenal
of possessionoffenses supplemented by presumptions, and, in general, a system of criminal
lawgeared toward theidentification and disposal of criminaldeviants. Even without
theexcluded categories ofstate and police offenses, theCode assigns theprotection ofvictims
as persons a minor, supporting, role.

If one looks closely, one can even make out theultimate weapon of the crime war: permanent
disposal and complete incapacitation through capital punishment. Theentire, and extensive,
Code section dealing with this "extreme affliction sanction" appears in brackets, expressing
thedrafters' inability to reach a consensus onits legitimacy. Despite its non-- committal
brackets, this section provided theblueprint for therevival ofcapital punishment in theUnited
States.112 And last but not least, there is theCode's off-hand suggestion that legislatures
might wish to insert into their criminalcodes "additional Articles dealing with special topics
such as narcotics, alcoholic beverages, gambling and offenses against tax and trade laws,"513
a suggestion that legislatures were only too happy to take up in the war ondrugs, though
surely with an enthusiasm and consequences that theCode drafters didn't anticipate.

In the end, the war on crimetook thegeneral system ofmodern criminaladministration as threat
elimination, sketched by Pound, Sayre, and their contemporaries and, belatedly, codified by
Wechsler, and then put it to radically different use. A shift from a presumption ofcorrigibility
to one ofincorrigibility produced a concomitant shift from rehabilitation to incapacitation.
Eventually, extreme affliction sanctions became thenorm, and correctional measures
theexception. Prisons were transformed from correctional institutions run by penologists into
warehouses supervised by inventory managers. Treatment still was thename of thegame, but
therealities oftreatment, as well as its function, had changed in ways unimaginable to
thenaively progressive champions oftreatmentism.

In the war on crime, theModel Code's mechanisms for theearly detection and diagnosis
ofcorrectional needs became a vast net ofmass incapacitation. Theattempter was still placed
under state control as soon as his abnormal dangerousness had revealed itself, with no regard
for traditional worries about theline between preparation and attempt or theimpossibility
defense. And having been identified as exceptionally dangerous, he was still subjected to
thesame treatment as theoffender who had succeeded in putting his criminalplan into action.
But now, that treatment was no longer designed to cure, but merely to quarantine, and to
quarantine for as long as possible, given that theoffender's criminaltendencies were presumed
to be inherent and permanent.

So, possessionoffenses were transformed from opportunities for early correctional
intervention into opportunities for lengthy, perhaps permanent, incapacitation. Strict liability

crimesflourished, no longer constrained by theModel Code's artificial limitation to
"violations," and even extending to serious felonies punished with mandatory life
imprisonment without thepossibility ofparole. In fact, parole was entirely abandoned,
rendering supervision and continued diagnosis ofinmates unnecessary and maximizing
theincapacitative potential ofevery conviction. Most dramatically, thedeath penalty, that most
extreme ofextreme affliction sanctions, which had found only an awkward place in theModel
Code, re-emerged as themost permanent ofpermanent incapacitation sanctions.

But theModel Code, and theprogressive approach to criminal lawit represented, was not alone
in unwittingly laying thegroundwork for the war on crime. As an emergency measure
designed to abate a national crisis, the war on crimewas not choosy when it came to selecting
thetools that helped it accomplish its crimeextermination mission. There simply was no time
to revamp American criminal lawin its entirety. Nor was there any need to do so. The war on
crimeinstead used theprinciples and practices at its disposal and molded them into tools,
turning progressive reforms into Draconian incapacitation measures.

TheWarren Court suffered thesame fate in criminalprocedure as theModel Code did in
substantive criminal law. In the war on crime, not only theModel Penal Code, but also
theWarren Court's Fourth Amendment jurisprudence became a blueprint for policingthreats
through early incapacitative intervention. Much as theModel Penal Code's greatest influence
onsubstantive criminal lawwas not its elaborate system ofcorrectional treatment (codified in
its parts III & IV, long since forgotten) but its model death penalty statute, so theWarren
Court today lives onin millions upon millions ofTerry stop-and-frisks.

Terry today does not survive as an attempt to bring low level police intervention within
therealm of, albeit scaled down, constitutional scrutiny. Terry instead stands for theexplicit
endorsement ofpolice intervention as threat management, and more specifically-and
troubling-as management ofthreats against thestate by thestate, or rather against state officials
by those same officials.

Terry turns entirely on thesafety ofstate officials. Terry held that a police officer is entitled to
"frisk" a suspect he has "stopped" for thepurpose ofprotecting himself. Evidence discovered
during such a safety frisk, like Terry's gun, is an unanticipated benefit, not a justification for
thefrisk. TheSupreme Court, after Terry, spent a lot oftime stressing theexclusively protective
justification of thefrisk, without recognizing thedanger ofauthorizing state intervention on
thebasis ofthreats to an official of thestate as perceived by that official. These perceptions
were not only unreviewable; in the war on crime, they were also unreviewed. In thecrisis of
crimethat triggered the war on crime, police officers in thetrenches had good reason to fear
for their safety. What appellate court, comfortably removed from therealities ofhand-to-hand
combat, would dare challenge theapprehension experienced by an officer in thefield who
comes face to face with theenemy, a criminalsuspect?

Theresult has been that Terry today justifies "protective sweeps" ofbuildings following
arrests, car frisks incident to traffic stops, and ever more elaborate connections between ever
more innocuous items seized by ever more frightened police officers during protective
sweeps and frisks ofpersons reasonably suspected of criminalconduct. And with thehelp
ofpresumption enhanced possessionoffenses, modeled on theModel Penal Code, these Terry
searches and seizures play an important role in the war on crime. Terry thus establishes a
convenient link between a state official's perception ofa person as a threat and thethreat's
elimination through theperson's incapacitation. And that, in a nutshell, is what the war on
crimeis all about.


Over thepast thirty years, the war on crimehas transformed American criminal lawinto a
system ofthreat elimination and minimization that has no room for persons, as offenders or as
victims. Today criminaljustice policy begins and endswith incapacitation. And that
incapacitation is achieved by any means necessary.

Faced with a crisis of crimein the1960s, as real as it was political, themuch celebrated artifice
ofAnglo-American criminal lawsimply collapsed. Thetraditional common law, unthinkingly
imported from England centuries ago, put up no resistance to thestate's attempt to turn
criminaljustice into a system for theidentification and disposal ofdangerous elements. Thetwo
fundamental principles ofthis much celebrated body of law, actus reus and mens rea, proved
so malleable and ungrounded in anything other than common lawtradition that they were
easily accommodated to thenew demands ofemergency management. Themens rea
requirement either simply disappeared, or was easily circumvented through evidentiary
presumptions. Theactus reus requirement likewise went quietly, as theconcept ofact proved
flexible enough to provide at least thesheen oflegitimacy to theparadigmatic offense of the
war on crime, possession. It made no difference that English courts centuries ago had
expelled this status offense from therealm of thecommon law.
Thetreatmentist orthodoxy of thetime similarly did nothing to halt thetriumph
ofincapacitation as thecore function of the criminal law. On thecontrary, it facilitated
theemergence of the war on crimein various ways. It was treatmentism that rendered mens
rea and actus reus expendable. It was treatmentism that had softened up these once iron-clad
principles of criminal law, giving them thesort offlexibility that proved so useful to thestate's
efforts to retain thefacade ofnormalcy for theemergency measures of the war on crime.

Having transformed punishment into treatment, theprogressive treatmentists paved theway
for the war on crime's shift ofemphasis from enlightened rehabilitation to theother, darker and
danker, end of thetreatment spectrum, incapacitation. Having successfully debunked what
they perceived as theanachronistic orthodoxy ofretributivist punishment, therehabilitationists
found themselves ill-equipped to restrain thearational urge to exterminate theevil of crime,
personified by an identifiable subgroup called "criminals." All treatmentists are out to
"subject to public control persons whose conduct indicates that they are disposed to commit
crimes."514 Theonly difference between rehabilitationists and incapacitationists is what sort
oftreatment they prescribe to theabnormally dangerous. Therehabilitationist is a treatmentist
who thinks all criminalsare at bottom good, and therefore curable. Theincapacitationist is a
treatmentist who thinks they're all bad, and incurably so. An incapacitationist is a
rehabilitationist who has been mugged.

There is something rotten in a system of lawthat abandons all principles at a time ofcrisis.
What good are principles ofconstitutional lawthat buckle under thepressure ofcrisis-and
theexcitement ofwartime xenophobia-to justify themass in

ternment ofenemy minorities?515 Similarly, what good are thetime honored principles
ofAnglo-American criminal lawif they can so easily be pressed into service in a war on
crime, resulting once again in themass internment ofenemy minorities, this time onan even
larger scale? And what good are enlightened principles ofcorrectional treatment if they can so
easily flip over into a blueprint for eliminatory treatment? They are all good for one thing,
and for one thing only: wrapping theunprincipled exercise ofstate power in themantle

The war on crimehas done American criminal lawa favor. It has exposed theweakness ofits
foundation. In particular, it has demonstrated theimpossibility ofbuilding a system of
lawgrounded only in tradition, rather than in firm principles. More specifically, the war on
crimehas shown once and for all that theonly way to guarantee thelegitimacy ofstate
governance is to ground it in theconcept of theperson. Theprogressive treatmentists had
removed theperson from criminal law, and replaced it with theconcept ofthreat, transforming
person punishment into threat neutralization, and criminal lawinto criminaladministration. It
was this apersonal concept of criminal lawthat paved theway for the war on crime, which
replaced rehabilitation with incapacitation as thethreat neutralization method ofchoice.

Theproblem with the war on crime, then, was not that it employed incapacitative treatment,
but that it employed treatment ofany kind, as opposed to meting out just punishment.
Theproblem was not that it policed only innocents, but that it policed everyone, regardless
ofguilt or innocence.

To overcome the war on crime, and to guard against thecollapse oflegality in theface offuture
crises, we need to put theperson back into American criminal law. We need a personal
egalitarian account of criminal law, centered around thevictim and offender as equal persons.
We need a system of criminal lawthat finally and completely abandons theapersonal
authoritarian orthodoxy that has shaped American criminal lawsince thebeginning of
thetwentieth century, and culminated in the war on crime.




Visiting Professor of Law, University ofMichigan LawSchool; Professor of Law& Director,
Buffalo Criminal LawCenter, SUNY Buffalo LawSchool. Thanks for comments and
suggestions to Guyora Binder, Sara Faherty, Errol Meidinger, Cornelius Nestler, Rob
Steinfeld, Bob Weisberg, Jim Wooten, and participants in workshops at theInstitute of
Criminal Law, University ofFrankfurt, and theInstitute ofLegal Philosophy, University
ofMunich. Thanks also to theNew York State Division of CriminalJustice Services for
statistics on theprosecution and punishment of possessionoffenses, and to theGerman-
American Academic Council, theAlexander-von-- Humboldt Foundation, and Dean Nils
Olsen for generous financial support. Last, but not least, I would like to express my profound
gratitude to Bernd Schunemann, who provided me with theideal research environment at his
Institute ofLegal Philosophy in 2000-2001.

Indexing (details)

Law enforcement;
Social control;
Criminal law;
Policing possession: The war on crime and the end of criminal law
Dubber, Markus
Publication title
Journal of Criminal Law & Criminology
Number of pages
Publication year
Publication date
Summer 2001
Northwestern University School of Law
Place of publication
Country of publication
United States
Journal subject
Law, Criminology And Law Enforcement
Source type
Scholarly Journals
Language of publication
Document type
Criminal law, Criminology, Crime, Social control, Law enforcement
ProQuest document ID
Document URL
Copyright Northwestern University School of Law Summer 2001
Last updated
ProQuest Sociology

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