Everyday, the probability that you or someone you know will become a convicted felon (or that either, maybe both, are already true) is changing. But is it decreasing or increasing, and why?
While there is a case to be made that the downward trend in overall crime and incarceration, generally, is a latent effect of deterrence working slowly, there are other cases to be made. Namely, that longer average sentences crowd prisons with less arrests, as well as that, simply put, the farther we are away from our worst the better we are everywhere. The scary thing, to me, is that longer average sentences can crowd prisons with less arrests – think about it. And, as we’ve been seeing since 1991, the longer it takes to release a prisoner the longer it takes for deterrence to “take effect”…and the longer it takes reform to correct. So, if mass incarceration can happen stealthily and linger inexorably, what are its ultimate causes?
Some say it’s the war on drugs. Others, mandatory minimums. In Florida, my state, a big portion of blame is put on limited gain time available for good behaviour, and the “CRD” statute. There are many factors of interest in the case against overincarceration. In this essay series, let us begin to put our detective caps on and see what we can find before the SWAT team arrives.
Where to start? Well, the evidence is all around us, though hopefully we won’t be implicated. Let’s take it through the whole process from the point where someone has officially become a perpetrator and on as long as it takes to catch a glimpse of what preys on the predators.
I shall set the scene. We are on The Street. Yes, The Street. The street where your favorite businesses are quietly providing their services to your neighbors and friends. The street that runs into the financial sector, or the public square, or the poor district. The street in front of your house in Anywhere, America. The street you’d rather be remembered as a place of peace than as the place where the cops made those arrests.
It’s foggy and the desperate sound of a saxophone can be heard in your bluetooth earbuds. On the roadside we see the detritus of a seemingly random stop-and-frisk: overturned bicycle, crumpled cigarette pack, disembodied wallet chain. People are trying to ignore it, like they would used underwear in a friend’s apartment. But soon a hungry youngblood comes along to grab the abandoned bike and begin riding up and down The Street, sizing up pedestrians and casing businessplaces.
Our victims are not victims, our prey not a huddled ungulate mass of sympathetic innocents but a diffuse demographic of wrongdoers, invisible by virtue of their outsized blame. And encounters such as the one that left the youngblood’s new bike certainly affect a particular group. But is that the whole story? Look around: many of the free faces that we see on The Street are light-colored or belong to bodies that exude financial security. That crumpled pack of cigarettes is of the cheapest brand; the bike obviously second-hand before its previous owner; and the wallet chain more proletarian or counterculture than professional in style.
But is bad policing the real, absolute lynchpin in the state-sanctioned human trafficking we call mass incarceration? Or are practices like stop-and-frisk like the trees of the forest we’re missing? Could they, taken together, be symptoms of an emergent stealth industry metastasized to our very notions of due process? Join me down this rabbit hole as we begin by looking at our first example.
Stop-and-frisk is a term that, loosely applied, encompasses various practices in scenarios where judges and legislators have given police authority to broaden the definition of a “probable cause”. Fortunately, we live in a society where the ends don’t justify the means (at least, not on paper), because no human – not even a cop – is above the law, no matter how good their “instincts” are. Good is the officer who is comprised of that happy combination of capability and self control upon which a society of peace and justice can be fostered without sacrificing one for the other.
But are these great many cases the greatest contributor to overincarceration? I would argue that, despite their own sad part in this play, that’s not the big picture. Prisons aren’t crowded with mostly petty criminals doing time hard and quick for possession and grand theft. Some very similar police encounters do contribute to another stealthy hazard (at least in Florida) involving probation statutes but that happens after the prisons have already been crowded initially.
The fact is, if we walk a little farther on The Street, we’ll find that some of our neighbors disappeared after domestic calls. Or their workplaces closed due to their last boss’s embezzlement scheme. Others’ nephews never came home last Friday night, nor did those nephews’ friends. And everybody’s talking about what the last postman went to jail for. What do they have in common then? Well, they all had to get arrested, so maybe it’s just something else the police are doing? There is an argument to be made about the primacy of racial bias in mass incarceration. And earlier on The Street we did see a disconcerting disproportion of dark faces, more so than by chance. Let’s honestly examine some measurements of the scale of the phenomenon as well as some observations of historical relevance.
The fact that the founding of many state corrections departments in their original forms (constitutionally-empowered) coincides pretty closely with the transition from the slave-code era of colonial and Revolutionary America into the Jim Crow era of post-Emancipation America (as well as, tellingly, the half-stepped abolition of slavery in the contemporaneous Thirteenth Amendment), is suggestive, to say the least. Slavery, a thing increasingly seen the world over as something inhumane-in-itself, had been successfully transmuted in America into what is now a fit punishment for criminals. Minorities, namely blacks, have traditionally received the lion’s share of this allegedly meet punishment. But in the decades since, the justice system as a whole has synergistically adapted its language of criminal target-markets to shifting legal and political-correctness realities. In some cases they shifted pariahs as quickly as public opinion (if not more quickly…) but mostly just adding to an unconsciously distributed most-wanted list of tacit public enemies like bootleggers, teamsters, mobsters, beatniks, junkies, psychotics, immigrants, etc…
Immigrants, Marxists, unionizers and more have all enjoyed (or are re-enjoying) the red-eyed glare of law enforcement. Jill Lepore, in her July 20, 2020, article for the New Yorker ably traced a path for the word “police” back through its historical references and antecedents. That is, the police as a social construct (and, crucially, not solely a sentimental concept) has undergone evolution and continues to evolve today. From the king’s men to the civilian watchmen and militia – from the posse comitatus through slave patrols, the Great Police Riot of 1857, union-busters, and Border Patrol into our brave new world of internationally cooperative, jurisdictionally competitive, national security-mandated, cellular networks of AI-supported, intelligence-gathering militarized police forces.
Forces, mind you, and agencies, not squads or departments or offices…at least not until a softer image is called for.
She draws on a body of thinkers varied both in perspective and in period of history, from the eighteenth-century William Blackstone through to Thomas Paine, Khalil Giloran Muhammad, Elizabeth Hinton, Stuart Schrader, and James Q. Wilson, to name a few. But one need not peruse the archives of the New Yorker to see that, while tribalism will be hard to inoculate our police forces from, it only gets harder when those executive agents are supercharged by weapons and surveillance technology combined with sycophantic AI and hawkish domestic policies and laws, which themselves are often hard to distinguish from institutionalized scapegoating.
So, is militarization the big monster here? Spoiler alert: maybe.
Miss Lepore’s vantage point on the documentary scope and evolution of policing in America is sobering even years later. And for someone, like myself, who has seen movies like RoboCop, it’s hard to put her article down without a feeling that somewhere, somehow a government algorithm or war-game AI is doing matrix calculations on the real-time exchange rates of our human rights. It would be an easy case to make that this huge trend (where crime and terrorism – and mental illness to a lesser degree cough – have become almost inextricably linked, correlated, and approached with strikingly synergistic strategies and policies) is the greatest common denominator in what seems more and more to be an entire industry rather than any single racket or perp. But I don’t think Miss Lepore had used exactly the same language or context. And my point here is still a bit tangential.
Our economies are indeed based on a weird combination of theories like global deterrence and the global village (or their descendants), and many millions annually suffer as “collateral damage” in the colossal, frenetic imbalance, within and outside our borders.
But wait. Many of our missing millions have been gone longer than the Twin Towers. Many who have since returned have disappeared again. Many others have long rap sheets. Don’t look now: there goes that guy who’s out on bond for “armed possession” – with his priors he could get thirty years. Everywhere we look, the tracks split again and again.
What are we to do?
There’s still unaccounted time between when our victims-liable were originally put into custody and when they were transported to prison. So far, we’ve been looking at only the first plot twist in a rather longwinded speculative arc. We know thus far that prison crowding taken overall has gone down a little since about 2005. But we also know that our prison population is among the highest globally and our per capita incarceration rate remains objectively inflated, narrowly fifth behind Rwanda and El Salvador (see World Almanac 2025, copyright Skyhorse 2024 for above facts and figures). We know that arrests must play some role but must also somehow be filtered to produce the outputs we see; for example, they also result in dropped charges, acquittals (though rare), time-served sentences, probation, and non-crowding (or relatively “fluid”) incarceration. In sum, we know that tribalism and militarization have mobilized a police state careening towards reckoning, but also that overzealous policing itself is just the first gauntlet for a matriculating ward of the State on their way through the prison pipelines.
Consider our captured quarry and the crucible they have now entered. Many things must go just right in the sequence of events from this point on in order that our captive canary may receive clemency from the fickle finger of fate. But as any common, everyday rocket scientist knows, each additional component necessary for function is an additional chance for failure. So, let’s keep walking down The Street, past the precinct – yes, smile and wave – toward the jail. Perhaps we’ll find more clues thereabouts…
Afterall, what better way to hide a crime than do it in plain sight?
*Playlist: “Unreal”, by LoFi Planet
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