Mass Incarceration.

Here’s the rundown for today. We’ll work through the history of incarceration, discuss how the system has evolved into a juggernaut in recent years and examine efforts to untangle the mess we’ve created. And, because I firmly believe that there’s an economic profit motive at the bottom of every shitpile policy, we’ll talk about the economics of the carceral sphere.

It’s a strange concept to wrap your head around, but we’ve kind of romanticized prison through movies.

Like Shawshank Redemption, The Longest Yard and The Great Escape. Or we casually reduce it to a punchline about soap and rape.

It’s time to move past hackneyed soap-dropping jokes and get serious about what can only be considered a violent assault on mostly Black and Brown people in the United States. We’re going to bounce around the timeline in this essay, including a trip all the way back to prohibition.

First, let’s review some key stats.

According to the most recently published stats from the Prison Policy Initiative, as of March of 2020, there are still more than 2.2 million people incarcerated in America, with a little more than half in state prisons. Of the 631,000 people locked up in local jails, 470,000 haven’t been convicted of a crime, meaning they’re being held pre-trial. So much for innocent until proven guilty.

Federal prisons and jails hold nearly a quarter-million people, the majority of which are there on drug offenses. And while youth incarceration has been on a decline, an estimated 40,000 young people are locked up. And due to harsh sentencing laws, the number of people serving life sentences has more than tripled since the 1980s.

Consider this in the land of the free. More than 10 million people are admitted to jail each year, and the number of people on parole or probation is double the incarcerated population: 4.5 million. All of this adds up to some pretty stunning shit. The U.S. has the highest incarceration rate in the world, even surpassing countries we condemn for violence and lawlessness, such as El Salvador, or those we criticize for having a poor human rights record, such as China.

One of the clear and obvious themes that Unf*ckers are keenly aware of is the stark racial disparity. People of color make up 67% of the prison population, but only 37% of the U.S. population.

So. Much. Fucking. Winning.

We’re referencing a study from Brookings that shows how poverty, race and incarceration are interconnected. For many people who end up in prison, securing employment was difficult even prior to being incarcerated. “Of the prisoners we studied, only 49 percent of prime-age men were employed two full calendar years prior to incarceration.” After leaving prison, only 55% reported earning any income. The same study looked at segregation’s impact, saying:

“Prisoners were disproportionately likely to have grown up in socially isolated and segregated neighborhoods with high rates of child poverty and in predominantly Black or American Indian neighborhoods.”

One thing to keep in mind, Unf*ckers, is that defending criminals is a slippery slope, and these details are usually met with a shrug and a suggestion that perhaps if “these people” would stop committing so much crime and just pull themselves up by the bootstraps we wouldn’t have to lock them up. Sigh.

So how the loving fuck did we get to this place in the “Land of the Free?“ Looks like it’s story time, Unf*ckers. Get a blanket and a beer.

Let’s jump to the middle of our timeline and head to 1972.

Disco is all the rage, G. Gordon Liddy, who just passed away last week by the way, was arrested for the Watergate burglary, NASA launched the Space Shuttle program and everyone everywhere was dressing like absolute shit. Bloody Sunday happened in Ireland, The Godfather was released, Don Mclean’s “American Pie“ debuted and Atari hit the shelves with Pong, baby!

For our purposes today, it was also the first year that violent crime in the United States began to decline after a sharp and steady incline over the prior 20 years. In 1972, the prison population was around 350,000, as compared to 2.2 million people today. One of the reasons for the peak during the prior years was arguably the result of the Baby Boomers being between 18 and 25 years old—the prime adolescent years of criminal agitation—mixed with civil unrest and protests during the Vietnam era.

But by the mid to late ’70s, conscription had formally ended, the Boomers were more worried about getting jobs than getting high and violent crime was precipitously declining. As Michelle Alexander notes her landmark book, The New Jim Crow, the National Advisory Commission on Criminal Justice Standards and Goals recommended as early as 1973 that, “No new institutions for adults should be built and existing institutions for juveniles should be closed.”

Think about that. We actually hit a point in the early ’70s when we were literally thinking of closing prisons.

Sociologists and criminologists had come to realize that punitive punishments and long-term sentences had little to no positive impact on crime statistics, and that rehabilitation and treatment were more appropriate measures for all but the most violent criminals. Of course, criminologists such as Cesare Beccaria, author of On Crimes and Punishments, had been writing about this since the dawn of the Enlightenment. We’ll come to Beccaria toward the end of the essay to further illustrate how these theories and writings were twisted over centuries into the perverted forms of criminal justice we suffer under today. Fun, right?

So in the early ’70s, and despite a difficult economy, violent crime was falling—not only in the United States, but also around the globe. The numbers would spike and decline in fits and starts over the next few years, before hitting a final peak in the early ’90s. Given these circumstances, it was somewhat surprising that President Reagan declared an official “War on Drugs” in 1982, only two years into his first term.

Surprising also because America didn’t really have a drug problem in 1982. But that was about to change.

So you may or may not know the douchenozzle behind all of this, but it was a dude named Harry Anslinger who was in charge of the task force under Prohibition. Well, typical fuckhead bureaucrat was so afraid that his power was about to be legislated out of existence with the end of Prohibition that he literally created a propaganda campaign around the evils of marijuana and convinced a terrified Congress that this funky shit was causing white women to sleep with Black men and inspiring that devil music sung by Billie Holiday.

He was so successful in these efforts, because he hated the Black community so much and was desperate to hold onto his power, that what was considered the most benign drug on the planet became the subject of law enforcement’s vitriol for nearly a hundred years.

The Modern “Middle Passage”

In order to properly describe the extent to which our criminal justice system is inherently and overwhelmingly racist, we have to learn to speak about it with a new language. The current language, inculcated into the population by the government and corporate media over several decades, includes phrases such as “tough on crime,” “zero tolerance,” and “three strikes.” This type of rhetoric has been delivered repeatedly and enthusiastically since President Ronald Reagan declared the official start to the War on Drugs in 1982. 30 years and a billion episodes of Law & Order later, we are all fluent in the language of narcotics.

The only good thing to come out of this was Miami Vice. God, I love that fucking show.

Unfortunately, most of us have turned away from the mass incarceration of young Black people in America during this time. Most of us shrugged it off. Most of us have failed to comprehend the rise of the prison industrial complex. Most of us, but not all of us.

In The New Jim Crow, Michelle Alexander speaks to both the sociological and institutional aspects of racism in the American legal system. Since its publication in 2010, her book has been gradually galvanizing members of the Black community around the concept of incarceration as a new form of slavery. And because of the efforts of outspoken leaders such as Dr. Cornel West, tireless advocacy from grassroots drug and prison reform groups and the comprehensive analysis provided by Alexander, the nation finally began to speak about incarceration with a new language.

Ask enough people from a Black neighborhood where “crack” came from, and it won’t take long for someone to tell you it was the CIA. This point has been hotly debated for years. But the fact remains that the period during which crack cocaine first began flooding the streets of American cities coincides precisely with the start of CIA operations in Central America, specifically Nicaragua. In the early 1980s, guerrilla fighters in Nicaragua were suddenly flush with cash from American sources—cash used to purchase American weapons in their fight against the Sandinistas, the Marxist government that aligned itself with Cuba.

In 1982, the U.S. Attorney General drafted a memorandum of understanding to the CIA establishing the United States’ interest in overthrowing the Sandinista government in Nicaragua; the same year the Reagan administration declared the War on Drugs. But crack cocaine had yet to reach the streets. It would take another three years for crack to begin appearing in the Black neighborhoods; crack derived from cocaine funneled from Nicaragua. Call it a conspiracy or an incredible coincidence, but the timing is irrefutable.

If you want to fall down the CIA rabbit hole on this one, research the work of journalist Gary Webb, most notably his piece “Dark Alliance,” written for the San Jose Mercury News. His work was the first to really connect the dots of covert CIA activity to fund the Contras and essentially clear the way to move narcotics across the border in an elaborate chain of cash, mercenaries, drugs and weapons. Webb, who died by suicide in 2004, was initially the toast of the town in journalism circles until he was maligned by both the CIA and corporate media. The Intercept published an article that breaks down the controversy, but the bottom line is Webb’s reporting stands the test of time.

The article, by the way, illustrates the lengths that the established media went to discredit Webb instead of actually following through on his reporting and bringing it to light. Had they committed the same amount of resources to finding the truth and holding the government accountable, instead of wasting them trying to embarrass a writer that wasn’t in their fucking mainstream country club, maybe some of this could have been prevented.

So, despite the downward trend of violent crime and no evidence yet of a rampant drug problem, the Reagan administration increased anti-drug funding for the FBI, Department of Defense and the Drug Enforcement Administration tenfold between 1980 and 1984; almost the exact size of the funding decrease to federal drug treatment, rehabilitation and education programs. Cocaine funneled from Central America hit the streets in 1985 in the form of crack and was deemed an epidemic by the media by 1986. By the end of 1986, the country had already adopted mandatory minimum sentencing requirements for drug-related felonies.

In less than five years, a crisis had been fully manufactured in our cities, and federal, state and local law enforcement agencies were given incentives in the form of military arsenals and cash to increase the number of arrests. Police departments were suddenly competing for cash grants, assault weapons and air power. We covered how this happened in our essay, Freeze, It’s the Military!

The government’s sudden change of course and willingness to fund anything related to drug crimes also created an opportunity for private industry, which was only too anxious to jump into the fray.

In 1983, Corrections Corporation of America (CCA), the first privately held prison corporation, was formed. Despite the historically low prison population, the government’s drug war prompted private industry to suddenly jump into the incarceration game. We talked about CCA and their adorable new company name and logo in a prior essay, so Unf*ckers are familiar with this part of the story as well.

The private prison lobby in America has pressured lawmakers over the years to maintain harsh minimum sentencing requirements, as corporations have little financial incentive to encourage rehabilitation of prisoners. As far as the private prison industry is concerned, the only useful felon is one who is incarcerated, not reformed.

Reagan’s “war” saw a clean population getting hooked on drugs. During this “war,” rehabilitation was replaced with recidivism. Treatment was abandoned in favor of solitary confinement. All the while, his administration was ramping up anti-drug propaganda, including infamous messages like the “Just Say No” campaign from his wife, Nancy.

Fuck you, Nancy. I guess the White House ghosts at your fucking seances didn’t whisper in your ear that it was your husband that brought crack to our cities.

To say the Black community bore the brunt of this war is an understatement. Dig this, more Black American men are in the prison system today than there were enslaved people just prior to the Civil War. Present the statistics any way you please. There’s no pretty picture to paint. Black America is once again in chains.

Caught in the System

We talked about how violent crime started to decline in the 1970s, to such an extent that policymakers were recommending the closure of youth facilities and suggesting no new facilities be built in the U.S. Well, crime would ebb and flow over the next 20 years, though never really exceeding that height in the 1970s. Then around 1992, the figures started dropping again. Precipitously. And they never looked back.

This phenomenon has several theories, none of which fully explain why this happened fully. They range from the elimination of leaded gasoline, the passage of Roe v. Wade, tough crime policies, increase in gun ownership, technological advancements like smart phones, air conditioning, and on and on.

Of course, explanations related to policy like Roe v. Wade or crime bills, or behavioral like gun ownership ignore the fact that violent crime didn’t just drop in the U.S.; it happened in lockstep all across the world. Oh, and if you’ve never heard the Roe v. Wade argument, essentially a couple of shitty economists theorized that all of the bad seeds that would have committed violent crime as adolescents were aborted. I don’t even know where to go with that.

So, maybe leaded gas was causing people to rape and murder one another, or air conditioning kept us all inside more and prevented us from murdering people in a fit of prickly heat rage. Or maybe, as my buddy Bobby from Brooklyn says, “There’s too much good weed and free porn.”

Whatever the reason, despite the drop in crime, the United States went into overdrive and started putting Black and Brown people in prison like it was going out of style. Thankfully, the “stop-and-frisk” tactics that frothing scumbag and national disgrace Rudy Giuliani implemented in New York have finally fallen out of fashion. But the damage was certainly done. Each year when it was in force, hundreds of thousands of stop-and-frisk acts were performed in Black neighborhoods. They were rarely, if ever, conducted in white neighborhoods, office complexes or college campuses. Of course, had they conducted them on, oh I don’t know, Wall Street…

But, no. That didn’t happen. Cops didn’t hang outside Wall Street firms and shake brokers down. They positioned themselves overwhelmingly in Black neighborhoods. And despite a minuscule number of successful hits on a population that was routinely harassed on the way to work, catching the bus, on their way to a barbecue, whatever, the overwhelming majority of those who were arrested during these really fucking unconstitutional searches were Black.

Now, I’m no mathematician, but logic would dictate that if you only stop and search people in Black neighborhoods, then when you find drugs on someone, the chances are that person is going to be Black.

Why oh why were these neighborhoods targeted?

Well, a New York Daily News article in 2013 published allegations from NYPD Officer Pedro Serrano, who taped and recorded notes of his supervisor, Deputy Inspector Christopher McCormack, telling him to target:

“Male blacks. And I told you at roll call, and I have no problem [to] tell you this, male blacks 14 to 21.”

Shocking, right? Yeah. I know. Not really. Of course this has been under investigation since then, but last March, in 2020, the NYPD finally admitted that they got hold of Serrano’s evidence and destroyed it.

Once a young Black or Brown person is swept up into the system, they’re met with a barrage of obstacles. From a holding cell, they are paired with a public defender, or perhaps an attorney with a conscience working pro bono to work through a plea deal. And these are the lucky ones, as a staggering number of accused felons make it all the way to sentencing in front of a judge without ever having spoken to an attorney. A far cry from what happens on TV.

Time is of the essence, as the attorney is typically carrying an offer from the DA that is set to expire quickly. Whether they want to go free rarely comes up. They’re in the system now. The only question is, how long? Risking an appearance in front of a jury means risking a much longer sentence, and the cold reality is that most of these men and women won’t exactly find a jury of their peers who are sympathetic.

Fun fact!

Did you know that nullification is a juror’s prerogative? What I mean is that, as a juror, you don’t have to actually render a verdict based on the law. Yup. Most of white America’s understanding of what is just and what is legal generally comes from watching television crime shows and movies. This is why most people have the impression that the sole responsibility of a juror is to deliver a verdict based upon legal facts and that his or her personal feelings of fairness and justice cannot be considered. This is patently false.

If you manage to get by “voir dire,” the process of questioning jurors to sit for a particular trial, and are fortunate enough to be selected, you can hang a jury without ever having to explain why. Jurors such as this are referred to as “stealth jurors.” Cool, right? That whole thing where the judge warns a jury sternly that their responsibility is to decide who made the better legal argument is bullshit. If it was real, then only lawyers would be on a jury. Is your mind blown yet?

Of course, serving on a jury is tedious, time-consuming and may even be financially detrimental. There is nothing romantic about the inner-workings of our legal system, no matter how glorified it is on television. Moreover, the chance of being picked for a jury that involves drug possession charges is extremely remote because so many caught in the system are never even told it’s an option. But a juror that goes this route would be committing the greatest legal act of civil disobedience ever. Just saying. Anyhoo.

The confusing whirlwind of circumstances between being frisked by law enforcement officials and accepting a plea deal is just the start, a piece of the legacy from Reagan’s “War on Drugs.” But if Ronald Reagan was responsible for putting so many Black people behind bars, it was Bill Clinton who was most responsible for keeping them there. In an effort to make Democrats appear “tough on crime,” the Clinton administration institutionalized punitive measures outside of the system, such as lifetime bans on some forms of welfare, including access to food stamps, government jobs and public housing. Parolees, now branded as felons for life, were suddenly unable to leave their district while being forbidden from returning home, accessing food and gaining employment in the public sector.

As you can imagine, throughout the ’90s, recidivism spiked and parolees came face-to-face with President Clinton’s most punitive anti-crime measures—the “Three Strikes” rule and mandatory minimums. Under Clinton, life sentences were mandated for any third-time felon, or felon convicted of multiple counts, regardless of the nature or severity of the crime.

Mandatory minimum sentences for even the lowest-level drug offenders were implemented, as outrage finally began to creep into American consciousness. Black churches and organizations were up in arms. Some judges resigned. Michelle Alexander even recounts the story in her book of a notoriously harsh judge who wept when forced to hand down a 10-year sentence “for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.”

Beyond the practical hindrances a felon faces in attempting to re-enter society, there’s an emotional burden and stigma that is carried forever; a burden that extends to the family as well. Even those who are released carry with them the shame of having been on the inside and the painful memories that accompany incarceration.

Horrifically, more than 70,000 prisoners are raped every year. Additionally, tens of thousands of prisoners are locked in solitary confinement at any given time in the United States, a punishment usually employed by totalitarian regimes that was all but outlawed in the United States prior to Reagan’s “War on Drugs” and the emergence of the modern prison industrial complex.

We’ve finally reached a point, thank god, where solitary confinement might fully become a thing of the past. New York’s recent changes to the penal system are encouraging in this regard, as we’re doing away with marijuana possession charges, expunging past records related to them and finally doing away with solitary.

The damage is done to so many, but at least there’s a glimmer of hope that we’ll move past this horrific treatment that causes more harm than good. And New York is actually late to the party, as usual. Of course, one has to wonder if we’d even be here if the prince of darkness Andrew Cuomo wasn’t embroiled in so many scandals.

As I offer some final thoughts and some actual good news on the whole, I did promise that I would go way back and discuss the economics of incarceration and origins of the modern theory of criminology.

I’m going to keep it brief, but it will give me an opportunity to work in a healthy fuck Milton Friedman in context.

So, as you know from other essays, I love looking at our founding and current events as bookends in this ongoing experiment. It’s fascinating how so much of what we’re still working through today was in play during the Enlightenment era when the U.S. was founded.

One of the principal theorists of the time, who had an enormous impact on other great philosophers of the time, was aforementioned Cesare Beccaria, a Milanese aristocrat who was a renowned criminologist, jurist, philosopher and politician. He was 28 when he published On Crimes and Punishments, of which Voltaire himself said,“I should limit myself to hope that we all and often reread this great work by this lover of humanity…You toil on behalf of reason and humanity, both of which have been quashed for so long. You revive those two sisters, beaten for over sixteen hundred years.”

In it, Beccaria advocated for, “the abolition of the death penalty, for measured and proportional punishments, for the end of torture, and for equal treatment regardless of nobility or wealth.” He understood that the length and severity of a punishment had literally zero impact as a deterrent, but that punishment should be, “the minimum possible in the given circumstances proportionate to the crime, and determined by the law.”

It wasn’t just Voltaire who was inspired by this work. From Adam Smith to Thomas Jefferson, Beccaria’s work held tremendous influence in intellectual circles across the globe. Of course, it was the Enlightenment, so Beccaria wasn’t the only influential thinker of this time. Further down the ideological spectrum, more toward the middle, was Jeremy Bentham, an English philosopher, jurist and social reformer regarded as the founder of modern utilitarianism.

Bentham’s middle ground is important because he picked up on many of Beccaria’s thoughts with respect to government’s role in punitive affairs. He differed with his Italian colleague in economic matters, where he maintained the government had little to no role to play. Hang on this concept for a moment as we introduce the real asshat of the Enlightenment, a French fucker named Pierre-Paul Le Mercier de La Rivière.

Le Mercier was the hard line natural order philosopher who had the opportunity to put his theories into practice as the ruler of Martinique, where he ruled with a heavy hand and developed his theories around how best to keep enslaved people in line. Like I said, total prick. But he had a huge impact on other thinkers, particularly those in the Chicago school of economics a couple of centuries later, who would cherry pick a bit from each philosopher to create their own political and economic reality known today as neoliberalism.

See what I did there, huh? Brought shit all the way back to my main man Milton Friedman, who, along with his colleague Gary Becker, revived aspects of the three men to develop their system.

Here’s how they did it.

They borrowed the idea from Beccaria that the state existed to preserve and protect the natural order of things, but ignored his humane approach. They picked up on Bentham’s idea that the state was effective in the carceral and punitive sphere, but should leave economics and policy alone. And they pounced on La Mercier’s idea that punishment should be severe, and pretty much the only reasons a government exists. This bizarre alchemy gave us neoliberalism and put the United States on a steady march to extremism in the penal realm.

Hopefully, as we continue walking this path together, Unf*ckers, the role of the Chicago school in perverting our systems of justice, economics and foreign affairs continues to become painfully evident. And hopefully it explains why I end the essays the way I do with a kiss to our friend Uncle Milton Friedman.

Final thoughts.

All too often we are focused on the experiences of incarcerated Black and Brown males in this country. But make no mistake, the stats are identical when it comes to women in the United States as well. A great episode done by the News Beat crew speaks to the treatment of Black women in the country and how the #MeToo movement had a huge gap in awareness when it comes to rape and abuse among women in prison.

I also wanted to mention that there is hope. In fact, while it takes a painful amount of time and these years can never be replaced, the movement to end mass incarceration is finally starting to turn the tide. A wave of progressive district attorneys, from DA George Gascón in L.A, Rachael Rollins in Boston and Larry Krasner in Philadelphia, are ushering in swift change. Of course, they’re being met with tremendous resistance, as one would expect, but their elections reflect the will of the people.

Across the country, states are beginning to do away with the treacherous system of cash bail. Marijuana is being decriminalized, and records are being expunged. If you want to get involved with organizations that have truly been doing the work, donate your time or money, or learn how to advocate on their behalf to Congress, we’ll drop links to the organizations we’ve mentioned throughout the essay in the show notes.

Like I said in the beginning, there’s so much more to this story. And we’ll try to get there in future essays. But hopefully this helps put this struggle into perspective as we move forward as a nation and try to heal the wounds that date back to our founding.

Democrats are just as guilty as Republicans for everything we just described. And, once more for good measure, fuck Milton Friedman.

Here endeth the lesson.