Locked Up: How the Modern Prison-Industrial Complex Puts So Many Americans in Jail

Where you find the laws most numerous, there you will find also the greatest injustice.

There are no two ways about it: The United States of America and its 50 state governments love putting people in prison.

The U.S. has both the highest number of prisoners and the highest per-capita incarceration rate in the modern world at 655 adults per 100,000. (It’s worth noting that China’s incarceration statistics are dubious, and they execute far more people than the United States. Indeed, the so-called People’s Republic executes more people annually than the rest of the world combined.)  Still, that’s more than 2.2 million Americans in state and federal prisons as well as county jails.

On top of those currently serving time, 4.7 million Americans were on parole in 2016, or about one in 56. These numbers do not include people on probation, which raises the number to one in 35. Nor does it include all of the Americans who have been arrested at one time or another, which is over 70 million – more than the population of France.

For firearm owners, in particular, the growth in this “prison-industrial complex” is troubling because felons are forbidden from owning firearms and ammunition under the 1968 Gun Control Act. As the number of laws has grown and the cultural shift for police has gone from a focus on keeping the peace to enforcing the law, more and more Americans are being stripped of their 2nd Amendment rights (not to mention other civil rights like voting – as of 2017, 6.1 million Americans cannot vote because of their criminal records). All told, eight percent of all Americans cannot own firearms because of a felony conviction.

For American society as a whole, the prison-industrial complex has created a perverse incentive structure. Bad laws drive out respect for good laws because there are just so many laws (not to mention rules, regulations, and other prohibitions used by federal prosecutors to pin crimes on just about anyone).

How did we get here?

History of Incarceration in the U.S.

United States law is, of course, based on English common law. Thus, no history of incarceration in the United States can start without first discussing the history of incarceration in the Kingdom of England and later the United Kingdom of Great Britain.

In the old country idleness was the prevailing notion of the root cause of crime. Punishments often involved sending criminals to workhouses, which were quite distinct from the prisons we know today. Rehabilitation and reform weren’t strong currents in the English and later British penal systems until the 1700s. Reformers sought to improve the criminal and to make him not want to offend.

Another historical fact worth noting is that incarceration is a relatively recent innovation in punishment. Historically, criminals were punished by shaming, corporal punishment, mutilation, exile and death. The purpose was generally not to make the criminal better, but to deter him from offending again while simultaneously providing the community with some awareness of his crimes for the purpose of allowing them to take measures to protect themselves (for example, branding a “B” on the forehead of a burglar). Where criminals were incarcerated, it was generally a temporary measure prior to trial or post-trial punishment, not a punishment in and of itself.

Remember, a significant portion of early American settlers were convict laborers. This convict labor was not incarcerated, but rather freely mingled with the general population. For the safety of the non-criminal elements, they had to be quickly and easily identified. However, the early American colonies were in no position to expend resources to house, feed and clothe criminals who were not providing productive labor – which is why incarceration made about as much sense as cutting off a criminal’s hand. Only four types of criminals were prohibited from being shipped across the ocean from England: murderers, rapists, burglars, and witches.

Prison became the primary means of punishment for felonies in the years leading up to the American Revolution. Two systems emerged: One where prisoners were incarcerated alone and another where they were incarcerated in groups. For what it’s worth, most prisons were in the North. Throughout the South, crime was largely viewed as a northern problem. Rather than prison, the Antebellum South relied heavily on extra-judicial violence and honor culture to control crime.

Prison labor has been a feature of prisons going back to days of English and British colonial rule. However, the convict lease system changed this qualitatively in the late 1880s. At this point, prisons began to be paid for the labor of their convicts. Many times, convicts were put to work on plantations. Building railroads and coal mining were other common uses of convict labor during this period. Death rates were high. In Alabama, a full 40 percent of convicts used for leased labor died in 1870.

The convict lease system gradually died out. However, it was replaced with systems not terribly distinct from convict labor. The chain gangs and prison farms closely identified with southern punishment throughout the 20th Century are examples of what began to replace the convict lease system. While there were rumblings about bringing back the chain gang system in the 1990s, it never amounted to much.

Overcriminalization = Less Civil Liberties

One of the fundamental principles underpinning our Constitutional republic is that the citizenry should not accept “trust me” as an answer from the federal government. Yet in one of our most Orwellian of federal departments – the Department of Homeland Security – a surveillance state is growing as our private information “trusted” to the government is used against us.

This surveillance state is made possible by Fusion Centers, police intelligence agencies that allow different police agencies to share intelligence with one another. It is, in effect, the intelligence-gathering arm of the burgeoning police state. And the information gathered, received, analyzed and disseminated by local and state police agencies is then shared with the federal government.

Fusion Centers aren’t the only way police surveil citizens. Cell-site simulator devices – known as Stingrays – mimic wireless carrier cell towers to connect to nearby mobile phones and cellular data devices. These controversial devices can extract data, intercept communications, conduct denial-of-service attacks, find encryption keys, and more. It’s a serious threat to Americans’ privacy and civil liberties, first conceived during the War on Terror and now trickled down to local police departments and their militarized approach to enforcing the law.

Of course, while we’re assured that protections are being made for privacy and civil liberties, there is very little reason to trust the federal government.

It’s easy to blame the War on Some Drugs as the reason for the explosion in the prison population, however, this is simply not an adequate explanation. The real reason is a broad expansion in the total number of laws on the book and the vague manner in which they are written. What’s more, the concept of intent has largely disappeared from our national legal lexicon, meaning that simple mistakes are often enough to land a person in prison.

Sixty-six-year-old George Norris provides a case study. He was greeted by three pickup trucks filled with six officers outfitted in flak jackets. He was held for four hours while the police searched his house, eventually seizing 37 boxes of his things with neither warrant nor explanation. He was indicted for orchid smuggling under the Convention on International Trade in Endangered Species and for (what else) making false statements to an officer about a simple paperwork error. While being held for trial, he shared a cell with an accused murderer. He was facing five years for the original charge and five years for conspiracy. Because he couldn’t afford his legal bills, he pleaded guilty and was sentenced to 17 months in prison.

Another broad example is civil-contempt imprisonment. In these cases, people are put in jail or prison for failure to, for example, respond to a bench warrant for an unpaid parking ticket. This is what Anthony W. Florence was arrested for while riding as a passenger in his family’s car with proof that he had paid the tickets. He spent seven days in jail where he was strip-searched twice. Guards also watched him shower and subjected him to a delousing. People have also been imprisoned for failing to pay debts in accordance with court-ordered settlements, which carries the specter of the return of debtors’ prisons with it.

The Principle of Minimum Necessary Force

Minimum necessary force is a concept dating back to Plato, but has recently found expression in Dr. Jordan Peterson’s book 12 Rules for Life. Basically, the idea is that when someone wrongs another person, the correct course of action is always the one requiring the least force. This is why, for example, we can say that the Islamic practice of removing a thief’s hand is somehow objectively unethical – it is a punishment grossly out of proportion to the crime committed.

The secondary aspect to the principle of minimum necessary force is the notion that the best way to go about enforcing laws is to have as few as are necessary. While not strictly speaking “libertarian,” it’s sort of “libertarian adjacent.” Laws are, ultimately, a type of force. The more of them we have, the more force we have in society.

The present state of criminal justice in the United States violates both principles. Not only do we have far more laws than we need (asset forfeiture, for example), but the punishments are frequently far out of sync with the crime committed. Is prison time really an appropriate response to someone smuggling orchids into the United States?

The Violent Crime Control and Law Enforcement Act of 1994

During his 1992 presidential campaign, then-candidate Bill Clinton was frequently attacked by his opponents as being “soft on crime.” He later won the endorsement of the 135,000-strong National Association of Police Officers by promising to put 100,000 new police officers on the streets. The result of Clinton’s desire to get tough on crime was the Violent Crime Control and Law Enforcement Act of 1994, written by Joe Biden – though he actually gave credit to the National Association of Police Officers, saying: “You guys sat at that conference table of mine for a six-month period, and you wrote the bill.”

The 1994 crime act was a sweeping reform of police powers in the United States. It included provisions regarding immigration, so-called “hate crimes,” street gangs and séx offender registries.

Perhaps most of interest to our readers is the Federal Assault Weapons Ban of 1994. This was Title XI of the Violent Crime Control and Law Enforcement Act of 1994. This provision banned a number of semi-automatic weapons, both rifles and pistols. Studies have shown that this law did not have a significant effect on homicides committed with firearms. The Gun Debate: What Everyone Needs to Know by Philip J. Cook and Kristin A. Goss found that “There is no compelling evidence that [the ban] saved lives.”

The assault weapons ban was subject to a sunset provision and expired on September 13, 2004. There have been repeated attempts in Congress to pass a new assault weapons ban, but all have been unsuccessful.

This was not the only provision of the Act. Title VI, known as the Federal Death Penalty Act, created 60 new capital offenses including narcotics trafficking and civil rights-related homicides.

Title IV was the Violence Against Women Act. This innocuous-sounding act made it more difficult for those accused of violence against women to defend themselves in court, which, also funneling more federal money to battered women’s shelters, created the National Domestic Violence Hotline and increased the power of restraining orders.

Likewise, the law stripped inmates of their eligibility for Pell Grants, increased privacy for driver’s license holders in public records databases, increased tracking of séx offenders, authorized the hiring of 100,000 additional police officers, expanded mandatory minimum sentencing, and created “boot camp”-style prisons for minors. Gang membership itself was criminalized. Drug testing was made mandatory for anyone on federal supervised release. “Three strikes” was made federal law as well.

The main impact of the law was a massive explosion in the number of incarcerated Americans. While crime declined sharply during the 1990s – 26 percent – not everyone agrees that the bill and the increased incarceration rate is due the credit. Some argue that all the bill did was incentivize incarceration by providing state and local governments with material benefits for increasing their incarceration rates. There were approximately one million Americans incarcerated in 1990. By 2000, that number had ballooned to approximately 1.5 million, peaking at nearly 2.5 million just before 2010.

For what it’s worth, the argument that most of these people are in jail for non-violent drug offenses is simply untrue. In 2016, 200,000 (less than 16 percent of all state inmates) were doing time for drug offenses. Compare this to the 700,000 incarcerated for violent crimes at the state level. In 2020, the Bureau of Prisons, which oversees federal inmates, tells a different story: 70,681 or 45.9 percent of federal inmates are doing time for drug charges, more than any other class of inmate. The lion’s share of inmates, however, are serving time in state rather than federal prisons.

The legacy of the Violent Crime Control and Law Enforcement Act of 1994 is a controversial one. It’s unclear whether or not it is responsible for the reduction of crime, but it’s crystal clear that it is responsible for a spike in the nation’s incarceration rate. Whatever one’s conclusion is on the matter, there is a certain irony to President Donald Trump running against the Act that Biden wrote – and Biden drawing a significant amount of support from people who want to abolish the police.

The Rise of Private Prisons

You cannot have a discussion on the prison-industrial complex without discussing private prisons. As of 2018, private prisons housed 8.41 percent of incarcerated persons in the United States. While private prisons date back to the colonial days, the modern privatized prisons as we think of them only date back to the 1980s. This was initially due to the explosion of the prison population and the resulting prison overcrowding that some have tied to the War on Some Drugs.

This spike in incarceration, however, is far more closely tied with the rise of private prisons. Between the years 1925 and 1980, the prison population in the United States remained constant as a proportion of the overall population. In 1983, however, two things happened: First, the first private prisons came into operation. Second, the prison population as a proportion of the overall population began to explode.

The first modern private incarceration company was Corrections Corporation of America (CCA), founded in 1983, and is currently known as CoreCivic. Their first contract was for a facility in Shelby County, Tennessee. This was the first time in American history when a government-run jail was contracted out to a private third party. The company made quick headlines when it offered to take over the entire prison system for the state for the sum of $200 million. The state, for its part, was quite ready to make a deal, but the backlash among the public, the prison guards union, and the state legislature ultimately squashed the deal.