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The United States has the highest incarceration rate among developed countries and the rest of the world. The question of “why” is always asked. In order to understand the answer to that question, a look back into history is necessary. There is no one specific time in history to point to that is the single factor for a rise in mass incarceration within the United States. Rather, there have been various law enforcement campaigns as well as numerous policies that have contributed to the uptick in incarceration in the United States. The key feature here is “change over time”, each policy or campaign led to the next and the effects built off each other. That being said, the gradual growth of federal/state government power and a changing view of race and crime over time, are the most important causes of the rise of mass incarceration in the United States.
In order to look at how these causes led to mass incarceration, we need to start all the way back in the 1920s with the era of Prohibition. The motivation for Prohibition was in some part to improve American health and well-being. But this was a peripheral concern compared to the more central motivation of enacting policy which would make it more difficult for lower-income, racial/ethnic minority groups to organize politically. This was when the underlying biases of the nation began to surface even more so than in the past, biases that would continue and grow for the next 60 years and beyond. This was obvious because government enforcement of Prohibition was overwhelmingly directed towards poorer regions and working-class neighborhoods, rather than more wealthy areas. Not surprisingly, Prohibition had strong support among groups like the KKK. The dry mission gave them an excuse to legitimize their anti-Catholic, anti-immigrant, anti-Semitic, and white-supremacist agenda. During this era, to support Prohibition was to be on the side of “respectable” morality and upstanding American values, which was understood to be under assault from un-American ideals. The changing view of race/ethnicity and crime had started to become more acceptable as a nationwide issue.
Not only did Prohibition bring traditional biases and racism to the forefront in the political and criminal debates, but it also silently increased federal power as a means to help alleviate social issues. The effort to enforce Prohibition led to an unprecedented expansion of the federal state in the 1920s, as many resources were needed for enforcement and punishing violators. The Federal Bureau of Prohibition was created to monitor and enforce the law itself in 1919. Within that organization alone there was a 100% increase in field agent staff, from 1500 to 3000 agents by 1926. There was then also an expansion of the penal system, and different penalties like parole were introduced because the prisons were getting crowded. The Federal Bureau of Prisons was also created to manage the prisons that were becoming so widely used. The FBI had massive expansion and the Federal police force grew and used new invasive tactics like wiretapping to unearth criminals. This directly paved the path for a later expansion of the federal state during the 1970s-1990s with the War on Drugs. In many ways, Prohibition was the War on Drugs of the 1920s. Much of the rhetoric and social anxieties were the same. When it came to how alcohol and drugs were perceived, it was always associated with lower-class and ethnic/racial crime. The government was gaining more resources and staking out entirely new terrains of enforcement and power. The enforcers on the other hand now had obvious targets for arrests because of certain groups being linked to Prohibition violations. Mass incarceration got its debut during Prohibition because of the increased emphasis on a need for more government involvement in the battle against rising crime and because race/ethnicity was becoming more associated with crime.
While Prohibition built the foundation for the new penal state that was emerging, the War on Drugs picked up the torch that Prohibition had already ignited. The War on Drugs took what Prohibition had started in terms of racial and minority biases as well as the extensive federal power and dialed it up to an extreme. One of the major effects of the War on Drugs was a slow stripping of the Fourth Amendment. For example, the Fourth Amendment provides security against unreasonable searches and seizures without probable cause or a warrant. Until the War on Drugs, courts had ‘been fairly stringent’ about upholding these rights. But a shift began within a few years of the start of the War on Drugs in terms of the relationship between citizens and police in regards to these rights. Virtually all constitutionally protected civil liberties were threatened by the War on Drugs. This means that new legal loopholes came about by which anyone could become a target of drug law enforcement by the police. Under the Fourth Amendment, police could not stop and search someone without a warrant unless they could prove a probable cause. However, the Amendment was modified after the Terry v. Ohio 1968 U.S. Supreme Court ruling. It was changed to mean that if police officers observe that the person “may be armed and presently dangerous” they have the right to conduct a limited search for weapons. The police today no longer need to believe that people are dangerous to stop and search them, as long as the individual consents. Another tool that law enforcement relied on during the War on Drugs was pretext stops. This is a traffic stop meant not to enforce traffic laws but to look for drugs despite the absence of evidence. Much like consent searches, the U.S. Supreme Court has enabled pretext stops with the backing of the law. A motorist who refuses consent to being searched can still be arrested for minor traffic violations, or police can bring in a drug-sniffing dog to get probable cause. The DEA even trained its officers on how to use pretext traffic stops and consent searches as gateways to look for drugs. Rather than train officers to spot lawbreakers, it teaches them to take a ‘volume approach’ and ends up sweeping over large numbers of innocent people. If people thought they had certain rights to protect themselves against police officers, they soon found out that the Fourth Amendment was unable to meaningfully constrain the police in the War on Drugs. Mass incarceration had become even more possible as a result because it was now legally easier to arrest people and side with the officer to find them guilty.
These new rules for fighting the War on Drugs allowed for the rounding-up of a large number of Americans for minor and nonviolent offenses. This was also what gave the police the discretion on who posed a threat and who did not. Coincidentally, black people and minorities seemed to fit the bill for most officers. A drug-enforcement law is unlike most other types of law enforcement since there is not a clear victim. Because it is so unclear, law enforcement must strategize who to target and how, and there is a lot of room for opinions to sneak in or mistakes to occur. On top of this ambiguity, the media changed its reporting to sensationalize an “us versus them” narrative, with “them” being drug-dealing black Americans. This depiction solidified the image of a black criminal dealing drugs in the eyes of law enforcement. In many ways, the word crime became a coded word for black. Law enforcement officials were then exposed to these images and coded language, reinforcing biases. It should be noted that unconscious and conscious cognitive biases tend to lead to discrimination, even when the person doesn’t believe they are. Regardless, once blackness and crime became linked in the public perception, the biases solidified. It was as if people were waiting for permission to start blaming someone for crimes. As if that wasn’t bad enough, the US Supreme Court adopted rules that maximized racial discrimination during the War on Drugs rather than protect the rights of African Americans. The Court also made it virtually impossible to challenge criminal justice racial bias under the Fourteenth Amendment. Rather than legally banning race discrimination in policing, the US Supreme Court authorized it.
Interestingly, many police departments publicly declare that they don’t racially profile while engaging in arrest tactics. This is despite the fact that they routinely use race as a factor for stop and search. They are able to do this because the Court essentially allowed the police to use race as a factor for this tactic. Nearly all seemingly ‘race-neutral factors’ are, in fact, based on race. These include targeting people who live in ‘high-crime ghettos’ or with a prior criminal history and consequently people who usually tend to be black. Police actually choose to go looking for drugs in inner-city ghettos rather than suburban white neighborhoods. Poor blacks and minority groups are easy targets because in many cases they lack political power and are confined to ghetto areas. In many ways, the militarization of law enforcement in these communities can be likened to an ‘occupation”. Yet police are able to defend themselves against claims of racial bias because race is never the only reason they cite during stop and searches. Judges, for their part, are just as hesitant to second-guess the reasons for police’s motives as they are prosecutors’. It’s pretty crazy because law enforcement agencies usually point to a large number of minorities in prison as a reason to target them, without realizing that their imprisonment is the product of that exact racial profiling. It is an endless loop. The War on Drugs and legal decisions heightened the race/ethnic tensions started by Prohibition so much so, that race and criminal behavior started to go hand in hand. Mass incarceration was furthered because the police had little restrictions on who they could arrest, with racial biases overlooked, so they were able to increase overall arrest rates while specifically targeting minorities and blacks.
Politics played a big role in the rise of mass incarceration because a lot of the rhetoric around race and crime was really strengthened with the help of the politicians. The rise of what politicians referred to as the ‘law and order’ campaign coincided with the rise of the civil rights movement. Interestingly, down south, law enforcement characterized the campaign for civil rights as a breakdown of law and order. They began to characterize civil rights protests as criminal acts rather than political events. At the same time, crime was trending upward due to a rising young adult male population of perpetrators, which radicals linked to the civil rights movement. Unfortunately, some black activists, concerned over the reputation of inner cities, joined some of the campaigns for law and order. They unintentionally became complicit in the boom in the mass incarceration of black men, although ironically many of the legislators who began the law and order movements were known segregationists. The law and order hysteria seemed to penetrate all neighborhoods and all sides of politics.
This ‘law and order’ rhetoric eventually contributed to a significant realignment of the political parties in the United States. At one time, the South was solidly Democratic and the North was largely Republican. Things shifted when Southern white Democrats became angered by their party’s support for civil rights reforms. This led Republicans to realize they could boost their party by recruiting anti-black Democrats. They began by arguing that poverty was caused not by ‘structural factors’ but by black culture. Many working-class white voters also felt threatened by the sudden forward progress of African Americans, and conservatives used that fear to mobilize them. During the presidential election of 1968, both conservative candidates campaigned on ‘law and order’, to reject the lawlessness of civil rights activists, and together won 57 percent of the vote. By 1972 many more voters determined their political leanings according to race rather than class. And by the time Ronald Reagan was elected in 1981, 22 percent of Democrats moved to the Republican Party to vote for him. After his election, his administration continued the War on Drugs. The media was used to sensationalize the use of crack cocaine and other drugs in inner-city neighborhoods and by minorities in particular. At the same time, these inner-city communities were suffering from economic collapse due to a lack of blue-collar jobs, so more were turning to crime and drugs as a source of revenue or mental relief. The United States did not follow the lead of other countries like Portugal that had dealt with similar epidemics and emphasized treatment and prevention. Instead, the United States introduced the death penalty for some drug-related crimes, mandatory minimum sentences, and even some civil penalties like home eviction. Crack cocaine, associated with blacks, held more severe punishment for distribution than powder cocaine, associated with whites.
With all of this going on, there was also a battle for the title of “toughest on crime” between the Democrats and Republicans. The political environment incited a battle over the poor white voters who felt threatened by black people, thus creating a perfect environment to showcase mass incarceration (of black people/minorities) as a form of reassurance. Prison populations exploded even more than they already had and law enforcement budgets saw a huge increase. In 1994 President Clinton passed a crime bill that created dozens of new federal capital crimes and added additional policies on crime. One example was the “three strikes” law that mandated life sentences for some three-time offenders. Policies like these resulted in “the largest increases in federal and state prison inmates of any president in American history”. By the turn of the century, many laws were also in place to discriminate against blacks and minorities with criminal records in regards to employment, housing, education, and voting. Mass incarceration had become instilled as a norm in the fabric of our society and political system.
The country began moving in the direction of mass incarceration from the very early part of the 1900s. What began with growth in federal power during Prohibition in the 1920s continued with the War on Drugs, and overall public opinion on crime and race changed over the course of the 20th century. These factors gave way to the various policy changes and an overall crackdown on crime. It is interesting to think if Prohibition had not taken place, and the governmental power had not increased so early on, if the War on Drugs would have been as effective or taken place at all. Perhaps the overall power of police and the shift in discretional power would be very different. I do still think, given the country’s history, that race and crime would eventually become associated with each other. The government and certain social/ethnic groups would have found some sort of excuse to attack minorities in the form of a Prohibition-like/War on Drugs-like campaign. With that, the government would need to gain more power in order to handle the growing societal problem. This unfortunate idea really speaks to what our society has become. The rising mass incarceration rates would have eventually occurred because of the diversity of our country and one group always feeling more threatened by another. There will always be an “us vs. them” mentality. Sadly, mass incarceration will probably always be around as it has become a pervasive force in the essence of our society.
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