Why American Prisons Stay Filled
It is no secret that America is the Incarceration Capital of the world. Not only does the U.S. have the highest percentage of prison inmates, we also have the highest absolute number of citizens behind bars. In fact, while the U.S. population makes up only 5% of the world’s population, we boast nearly 25% of the world’s prisoners. There are more than two million people in state and federal prisons, and another half-million in local jails. Additionally, there are another 5 million or so people on probation or parole, bringing the total number of Americans under correctional supervision to more than 7 million people. That is approximately 3% of all adults in the country. And to be sure, those staggering numbers have allowed the growth of a massive law enforcement and corrections industry, which generates billions of dollars each year — as long as the business keeps coming in.
But it hasn’t always been this way. There was a time in America, probably before my lifetime, when the law enforcement community included minimally-armed patrolling officers, “walking the beat.” The ideal — at least from childhood television — was of friendly and helpful policemen strolling the streets of the neighborhood, ready to respond if something seemed fishy, and ready to help if someone needed assistance. The conventional wisdom was that if there is a benign police presence, crimes of opportunity would be less likely to occur. As the old adage suggests, an ounce of prevention is worth a pound of cure.
Somewhere along the line, first in the 1960’s with the Civil Rights movement, and more so in the 1970’s with the newly-declared War on Drugs, crime prevention became much less important than catching criminals and locking them up. As police departments became more and more militarized, and socio-economic divisions grew, creating uglier pockets of poverty and desperation, even-tempered community policing turned swiftly into overtly aggressive, paramilitary law enforcement. And alongside this shift in police focus we saw the rise of the Prison Industrial Complex, which encourages, at least covertly, a constant flow of human capital in the form of prisoners. And damn the cost to the lives of those caught up in its ever-expanding net.
Instead of crime deterrence, we began to see the advent of security measures designed to trap criminals in the act. Silent Alarms, hidden cameras, speed traps and road blocks (euphemistically referred to as ‘Sobriety Checkpoints”). For example, it is not uncommon for police officers to surveil a local nightclub, and watch drunk patrons leave. Instead of intervening when they see an obviously inebriated person heading for their car, they wait until the person gets in the car, and drives away, thereby needlessly endangering the community, just so they can make the arrest. For the past 40+ years, law enforcement, security companies, and even private businesses have been devising new ways to apprehend criminals, catching them in the act if at all possible, instead of trying to deter a would-be criminal beforehand. Plainclothes officers cruise around in unmarked cars for the sole purpose of not announcing a police presence — not that it’s hard to tell an unmarked car in most instances, but it is still less conspicuous than a marked cruiser. And it sends the same signal — we aren’t here to prevent crime, we’re here to observe it.
In my experience, one of the most ubiquitous techniques used by police officers is the confidential informant and, specifically with narcotics officers, the “controlled buy.” C.I.s are recruited by the police to report any criminal activity they observe. They often have their own criminal history, and often become a C.I. to garner favorable treatment or for some other quid pro quo, like money. The C.I. is almost always known to the community, and is therefore able to interact with suspects in ways that police officers, or strangers, could not. They may even be able to go inside someone’s home and inform the police if there is any contraband in the home, like guns or drugs. Basically, it is a way for police to violate the Fourth Amendment prohibition against warrant-less searches, without actually conducting a warrantless search. They will then use the information provided by the C.I. to obtain a search warrant. And while this makes the confidential informant a key witness in a case, it can be very difficult to force the state to disclose their identity, and often a criminal defendant is prevented from confronting and cross-examining the C.I. at trial.
Police will also use a C.I. to conduct a “controlled buy” of narcotics from someone the police believe is selling drugs. Again, the C.I. is usually someone the alleged drug dealer knows personally. Police will give the C.I. marked money, have him make the buy, and bring the purchased narcotics back to the police. And again, based on this secret transaction, the police will obtain a search warrant and/or an arrest warrant for the drug dealer. Oftentimes, while conducting surveillance of the target residence, officers will watch several people buy narcotics and leave, which they will use as additional evidence against the perpetrator. But that means that they are literally allowing people to continue buying narcotics, putting more drugs on the street, just to build a stronger case against the dealer.
One particular case stands out in my mind. My client was a known drug addict, and had been arrested and convicted of several drug charges in the past, mostly for simple possession — because he was a drug addict. Cops employed a confidential informant that knew my client to try and conduct a controlled buy from him. In a recorded conversation, the C.I. called my client and asked for some crack. My client said he didn’t have any. The C.I. asked him again, and again my client said he wasn’t selling any. For several minutes, this continued on, with the C.I. practically begging my client for just one piece of crack for an old friend. My client finally relented, and agreed to give him one — as an old friend. He was arrested and charged with Distribution of Schedule II narcotics, punishable by up to 30 years in prison. However, because of his criminal history, if my client had gone to trial and been found guilty, he was likely facing Life Without Parole. So he was forced into a plea bargain which required him to serve at least 7 years in prison.
Another of the more despicable techniques used by law enforcement to catch criminals is the relatively new practice of “Bait Cars.” Police will park a nice car in a “high crime” area, leaving the keys in the ignition. When some kid comes by and sees the keys in it, they take it for a spin. However, inside the car, there are hidden cameras, and the cops have it wired so they can kill the engine, and trap the perpetrator in the vehicle so they can’t escape. And of course, they are then arrested and charged with Theft of an Automobile — or Grand Theft Auto, depending on where you are. I even had a case where the police staged a DWI arrest in a poor neighborhood, arrested the fake driver, and left the scene, with the car — a very nice, new car — in the middle of the street with the keys still in the ignition. My client was a 17-year old kid who was walking with his friends when he observed this staged arrest. He and one of his buddies hopped in the car and drove it around for a few minutes. They had no intention of keeping the car, but just planned to drive it around and return it when they were done. This used to be called “joyriding” and was punishable as a misdemeanor. But now, at least in Louisiana, it is treated exactly the same as any other car theft, a felony, punishable by up to ten years in prison.
These tactics, among others, are often colloquially referred to as “proactive” policing. I have seen countless police reports that begin with the copied and pasted phrase “while on proactive patrol, officers observed [fill in the blank].” Sometimes it just means creeping through “bad” neighborhoods, looking for a fight or a group of ‘suspicious’ looking people — most often young, black men. Sometimes, they take advantage of a known drug addict, asking them to buy some crack for them, in exchange for money, or some of the crack. The addict may comply, desperate for his own fix, and seek out someone to buy from. When he returns with the product, he is arrested for distribution. Sometimes, plainclothes cops attempt to entrap prostitutes into offering sex for money, just so they can make the arrest. And there are numerous other methods modern police officers use to persuade at-risk people into committing crimes, just so they can arrest them, and lock them up. And, somehow, all of these tactics have survived scrutiny under entrapment defenses. In fact, it has become increasingly difficult to prove entrapment in American courts, and it is always the defendant’s burden of proof when making such a claim.
Instead of focusing on community policing, which would place a constant benign police presence in neighborhoods, it is easier — and more profitable — to “proactively” induce criminal behavior, or to lay in wait until someone commits a crime, and then pounce, attacking the perpetrator like an enemy combatant. My wife says it reminds her of ‘ambush predators’ on the African savanna, and I thought that was the most apt description available. Modern American cops are more akin to ambush predators than friendly neighborhood police officers. And of course, the communities that suffer the most negative impact of this type of regressive policing are vulnerable groups, such as racial minorities and the working poor. Communities that have been systematically segregated to the “bad” parts of town, where most “proactive policing” is centered, already struggle to get by, and are hamstrung by regressive law enforcement policies that target them.
Of course there is a much longer conversation to be had about the underlying causes of crime, which include socioeconomic depression and desperation. Drug addicts are often created by poverty and hopelessness, as well as undiagnosed and/or untreated mental illness. Illicit drug sales are often concentrated in areas where these factors are most patent, such as poor, working class communities, which are often communities of color. Thefts, robberies, burglaries, assaults and firefights are often concentrated around those same neighborhoods, for most of the same reasons. Poor people, with no hope of breaking out of poverty, resort to desperate measures just to get by. We only make matters worse with idealistic expectations of beauty and success in popular culture and mass media. But these issues will take more long-term, bolder and more nuanced policies to fully address. However, we can ease some of the burden on these already-at-risk communities by demanding a more preventative approach to law enforcement, instead of trapping marginalized people into committing crimes of opportunity, just to feed more customers into the nation’s overstuffed prison system, thereby perpetuating the cycle of poverty to desperation to crime and back to prison. But then again, that wouldn’t fit the modern business model of the Prison Industrial Complex, and all of its enablers.