[W]e do not expect people to be deeply moved by what is not unusual. That element of tragedy which lies in the very fact of frequency, has not yet wrought itself into the coarse emotion of mankind; and perhaps our frames could hardly bear much of it. If we had a keen vision and feeling of all ordinary human life, it would be like hearing the grass grow and the squirrel’s heart beat, and we should die of that roar which lies on the other side of silence.

—Mary Ann Evans, Middlemarch

I

On January 26, 2014, Sharnalle Mitchell was sitting on her couch with her one-year-old daughter on her lap and her four-year-old son to her side. Armed government agents entered her home, put her in metal restraints, took her from her children, and brought her to the Montgomery City Jail. Jail staff told Sharnalle that she owed the city money for old traffic tickets. The City had privatized the collection of her debts to a for-profit “probation company,” which had sought a warrant for her arrest. I happened to be sitting in the courtroom on the morning that Sharnalle was brought to court, along with dozens of other people who had been jailed because they owed the city money. The judge demanded that Sharnalle pay or stay in jail. If she could not pay, she would be kept in a cage until she “sat out” her debts at fifty dollars per day, or at seventy-five dollars per day if she agreed to clean the courthouse bathrooms and the feces, blood, and mucus from the jail walls. An hour later, in a windowless cell, Sharnalle told me that a jail guard had given her a pencil, and she showed me the crumpled court document on the back of which she had calculated how many more weeks of forced labor separated her from her children. That day, she became my first client as a civil rights lawyer.

Ii

Prisons do not disappear social problems, they disappear human beings.

—Angela Davis

There are 2.2 million human beings confined in prison and jail cells in the United States tonight. About 500,000 of those people are presumptively innocent people awaiting trial, the vast majority of whom are confined by the government solely because they cannot pay enough money to buy their release. This country has five percent of the world’s population, but twenty-five percent of the world’s prisoners—the highest rate of human caging of any society in the recorded history of the modern world. At least another 4.5 million people are under government control through probation and parole “supervision.”

Between eighty and ninety percent of the people charged with crimes are so poor that they cannot afford a lawyer. Twenty-five years into America’s incarceration boom, black people were incarcerated at a rate six times that of South Africa during apartheid. The incarceration rate for black people in the nation’s capital, where I live, is nineteen times that of white people.

I have traveled the country and seen nearly identical practices in every courtroom and every jail that I have visited. We have a legal system in which things like what happened to Sharnalle are simultaneously illegal and the norm.

Iii

[T]he movement for reforming the prisons, for controlling their functioning is not a recent phenomenon. It does not even seem to have originated in a recognition of failure. Prison ‘reform’ is virtually contemporary with the prison itself: it constitutes, as it were, its programme.

—Michel Foucault

A lot of people are talking about “criminal justice reform.” Much of that talk is dangerous. The conventional wisdom is that there is an emerging consensus that the criminal legal system is “broken.” But the system is “broken” only to the extent that one believes its purpose is to promote the well-being of all members of our society. If the function of the modern punishment system is to preserve racial and economic hierarchy through brutality and control, then its bureaucracy is performing well.

Iv

Official language smitheryed to sanction ignorance and preserve privilege is a suit of armor polished to shocking glitter . . . . It is the language that drinks blood . . . .

—Toni Morrison

The emerging “criminal justice reform” consensus is superficial and deceptive. It is superficial because most proposed “reforms” would still leave the United States as the greatest incarcerator in the world. It is deceptive because those who want largely to preserve the current punishment bureaucracy—by making just enough tweaks to protect its perceived legitimacy—must obfuscate the difference between changes that will transform the system and tweaks that will curb only its most grotesque flourishes.

Nearly every prominent national politician and the vast majority of state and local officials talking and tweeting about “criminal justice reform” are, with varying levels of awareness and sophistication, furthering this deception. These “reform”-advancing punishment bureaucrats are co-opting a movement toward profound change by convincing the public that the “law enforcement” system as we know it can operate in an objective, effective, and fair way based on “the rule of law.” These punishment bureaucrats are dangerous because, in order to preserve the human caging apparatus that they control, they must disguise at the deepest level its core functions. As a result, they focus public conversation on the margins of the problem without confronting the structural issues at its heart. Theirs is the language that drinks blood.

In this Essay, I examine “criminal justice reform” by focusing on the concepts of “law enforcement” and the “rule of law.” Both are invoked as central features of the American criminal system. For many prominent people advocating “reform,” the punishment bureaucracy as we know it is the inevitable result of “law enforcement” responding to people “breaking the law.” To them, the human caging bureaucracy is consistent with, and even required by, the “rule of law.” This world view—that the punishment bureaucracy is an attempt to promote social well-being and human flourishing under a dispassionate system of laws—shapes their ideas about how to “fix” the system.

But few ideas have caused more harm in our criminal system than the belief that America is governed by a neutral “rule of law.” The content of our criminal laws—discussed in Part V—and how those laws are carried out—addressed in Part VI—are choices that reflect power. The common understanding of the “rule of law” and the widely accepted use of the term “law enforcement” to describe the process by which those in power accomplish unprecedented human caging are both delusions critical to justifying the punishment bureaucracy. This is why it is important to understand how they distort the truth.

I apply these arguments in Part VII, explaining why the current “criminal justice reform” discourse is so dangerous. I focus on several prominent national punishment bureaucrats and a new local wave of supposedly “progressive prosecutors.”

Finally, in Part VIII, I discuss the new generation of directly impacted people, organizers, lawyers, faith leaders, and academics on the libertarian left and right who understand the punishment bureaucracy as a tool of power in service of white supremacy and profit. I explain why this growing movement must reject the “criminal justice reform” discourse of punishment bureaucrats and speak clearly about why the legal system looks the way that it does. I urge those interested in changing the punishment bureaucracy to ground every discussion that they have and every proposed reform that they evaluate in a set of guiding principles rooted in this movement’s vision. I sketch some of those principles for their consideration below.

We are living in the era of premeditation and the perfect crime. Our criminals . . . have a perfect alibi: philosophy, which can be used for any purpose—even for transforming murderers into judges.

—Albert Camus

What is a crime? The first step to understanding how we accomplish the imprisonment of millions of people’s bodies is understanding what laws authorize government agents to take away a person’s liberty.

A society makes choices about what acts or omissions to render worthy of different kinds of punishment. The decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent. For example, a person walking down the street smoking a cigarette cannot be searched by police. Even a police demand to stop walking or the probe of an officer’s hand along the person’s outer clothing would violate our Constitution’s Bill of Rights. But, in most of the country for the past fifty years, if that same person were smoking a cigarette containing a dried marijuana plant in addition to a dried tobacco plant, the person may be bound in metal chains, removed from the street, strip-searched, placed in a cage, and held in solitary confinement with no human contact or natural light. The person can be kept in that cage for decades. The person can lose her right to vote, be removed from public housing and have her family removed from public housing, be kicked out of school, and be barred from employment. She can also be deprived of basic human needs, such as hugging her child or having a sexual relationship with her spouse. All of this treatment is allowed only because the person is a “criminal.”

A. Criminal Laws Reflect and Legitimate the Environment in Which They Are Made

Choices about what is a crime and what is not are made by politicians and within the economic, social, and racial systems in which politicians exist. As a result, for better or worse, these choices reflect the logic of, promote the legitimacy of, and protect distributions of power within those systems.

Consider, for example, that it is a “crime” in most of America for the poor to wager in the streets over dice. Wagering over international currencies, entire cities’ worth of mortgages, the global supply of wheat needed to avoid mass starvation, or ownership of public corporations is accepted behavior. Dice-wagerers become bodies to seize, search, confine, and shun. Their private cash is “forfeited” to government ownership. Wheat-wagerers become names on the wings of hospitals and museum galleries. Their cash makes them heroes, and charitable organizations providing legal services to low-income dice-wagerers in criminal prosecutions give them philanthropic awards at banquets.

This example is not a quirky outlier. Furthering and legitimating particular distributions of wealth and power are pervasive, defining functions of our criminal legal system—not minor, unintended byproducts.

These choices play out over the criminal law, from foundational laws criminalizing a physical breach of another person’s private property to definitions of affirmative defenses like duress or necessity. (Poverty, for example, is not commonly accepted by American courts as a sufficient excuse for theft of subsistence goods.) Our political choices answer important questions: Should it be a crime to beg for money? To charge high interest rates? To hoard wealth? To decide not to vote? To abuse a family dog? To abuse thousands of pigs to make higher profits from their flesh? To belong to a union? To decline to belong to a union? To refuse to grant mortgages to people of a certain race? To drill for oil? To seize land from indigenous people? To participate in a lynch mob? To enslave people? To refuse to pay reparations to people formerly enslaved on one’s land? To spray carcinogenic chemicals into the ground to release natural gas? To hit one’s child? To design political boundaries based on race? To run a bank for profit? To refuse to identify oneself to a police officer? To force sex upon a spouse? To search a person without probable cause? To grow tobacco? To have oral sex with another consenting adult? To hold profits offshore? To expose secret government misdeeds in the media? To dress a certain way? To possess a gun? To possess a hunting rifle ten years after a marijuana conviction? To donate to a foreign charity? To boycott apartheid? To terminate a pregnancy? To cross an imaginary boundary between two political jurisdictions to be reunited with one’s child?

The standard narrative portrays “criminals” as a vast collection of individuals who have each made a choice to “break the law.” Convictions and punishments are consequences that flow naturally from that bad choice: we must enforce the “rule of law.” But these crimes are not chosen because of some assessment of the amount of harm prevented, and punishments are not selected because of demonstrated penological success. The difference in the way the bureaucracy treats someone using cocaine and someone using vodka has no empirical connection to the respective harm caused by those substances or to any analysis of how to prevent addiction to them. Instead, forces external to well-reasoned policy contribute to definitions of criminality and to decisions about appropriate punishment. The criminal law is not an inviolate repository of right and wrong, but—just like any other policy fashioned in a country as unequal as ours—a tool related to cultural, racial, and economic features of our society.

Making it a crime to possess certain substances is a good example. The expansion and increase in severity of drug laws in the last forty years, as well as the lack of outrage over that punishment for many decades, has been shown to stem from a combination of conscious and subconscious biases and incentives. It is now a federal and state crime in every American jurisdiction for any person to ingest a wide variety of substances into their own bodies. And politicians have simultaneously decided that other harmful substances are legal to consume and to distribute for profit. It was not always so. The history of drug prohibition was influenced by the desire to criminalize conduct associated with particular groups at specific historical moments. And now, during what punishment bureaucrats call the “war on drugs,” punishment bureaucrats make a choice to “fight” drug use (when it comes to some drugs when used in some neighborhoods) not as a public health issue but through armed agents and cages. No matter what one’s views on drugs, there is one thing that all agree on: these laws were never based on empirical evidence about the best way to create a society with less use of harmful substances.

Why does the evidence matter so little to the punishment bureaucracy? The punishment system would change overnight if the vast numbers of young, wealthy, and white drug criminals at private schools and famous universities were harassed and beaten by police in the streets, had their family homes raided at night, were sexually and physically assaulted in prisons, and were confined to live and die in cages. The human costs of the bureaucracy would be evaluated differently if drug searches by undercover police and SWAT teams were as common at Yale University as they are down the street in the low-income neighborhoods of New Haven. The brutality of separating tens of millions of families from their loved ones—with no empirical evidence of a benefit—would not be tolerated if it were happening to different people. Our culture would see it as widespread violence in need of serious justification, if not a human rights crisis demanding urgent and immediate action, rather than as a vague and impersonal aspect of the need for “law enforcement.”

And so the knowledge that laws will be enforced in particular ways against particular people changes what laws powerful people create. Elites need not worry about creating crimes with harsh punishments if they know that the laws will not be enforced against them.

While many of these choices reflect background social, racial, and economic forces, other choices in the criminal law are more obvious political calculations. For example, while politicians decided to make insider trading a crime for ordinary people and private investors, they had also decided, until recently, that insider trading should be legal for members of Congress. This meant that elite politicians could make millions of dollars based on inside information that they learned through lawmaking or use their control over lawmaking and regulation for personal profit.

More broadly, much of what are now celebrated as instruments of wealth creation for investors used to be called “crimes.” During the Clinton presidency, for example, bankers hoping to engage in then-illegal types of derivatives trading paid lobbyists and politicians a lot of money to change words in a federal statute that transformed, overnight, those doing certain investment banking activities from criminals into philanthropists.

Overt political calculations similarly determine the punishment system’s understanding of “terrorism.” The federal government has passed a law to make it a felony to provide “material support” for “terrorist” groups. This crime includes providing non-violent conflict resolution and peaceful advice to any group a government bureaucrat chooses to put on a list of “terrorists.” And politicians and bureaucrats are constantly revising who goes on “terrorist” lists and which people are instead “allies” to whom the United States government and private corporations sell weapons. Often, these are the same groups at different times. To take one example, one of those “terrorist” groups, the People’s Mujahedin of Iran, recently hired dozens of the most famous retired American politicians to work on its behalf to remove it from the list of “terrorist” groups, transforming those politicians from felony terrorism offenders to successful lobbyists. And during America’s support for South African Apartheid, the government not only helped to capture and imprison Nelson Mandela, but it officially categorized him as a “terrorist” until 2008.

In the same way, the federal government makes it a felony to disclose “classified” information, and officials secretly decide what information to deem “classified.” There are between two and three million bureaucrats with the ability to classify (and therefore criminalize) information, and they did so for nearly 50 million documents in 2017. At the same time, the federal government does not make it a crime for bureaucrats to violate Freedom of Information Act requirements, meaning that officials can fail to document their activities, refuse to disclose records when they exist, or destroy records without committing a crime. Such violations of the law, even brazen ones, are addressed through civil lawsuits. But when a military intelligence officer publicized a video of a mass murder by U.S. troops (including the murder of children arriving at the scene of the massacre to treat the wounded), she became a “criminal” sentenced to 35 years in prison because an unknown bureaucrat decided that disclosing the video to the public should be a crime. The soldiers who murdered people on videotape were not prosecuted for their violations of the “rule of law.” Similarly, the person who disclosed lies used to justify American involvement in millions of deaths in Vietnam, Cambodia, and Laos was prosecuted in the 1970s for felonies because bureaucrats had decided to make publication of their lies a crime.

This political process is also influenced by multibillion-dollar industries with sophisticated marketing and lobbying strategies because many corporations depend on increasing punishment. These interests include pharmaceutical companies lobbying to block marijuana legalization and large meat corporations lobbying to create new felony offenses for videotaping animal abuse at their factories. They also include private prison corporations and the much larger industry of private contractors in public prisons and jails, who profit from the labor, phone calls, emails, family visits, mail, food, supplies, and medical care of prisoners. The more people in jail or prison and the longer they remain confined to a cage, the more profit the companies make.

Simply put, political power influences what we decide to criminalize. And because political contributions effect voting behavior, groups pay political campaigns and associated entities so that politicians will create laws that benefit those groups. Laws are often passed not because they increase overall well-being, but because politicians need money to stay in power. If a would-be criminal, therefore, has a large amount of money, she can purchase the ability to be viewed as a non-criminal by changing laws. If a group of people wants other people to be called “criminals” and imprisoned, the group can pay for that as well. We could call this behavior “bribery,” but instead we have decided to call it “free speech.”

To be clear, it is appropriate for a political process to make decisions about what a society should punish and what a society should celebrate. The point here is that our criminal laws are not an objective mechanism for increasing overall well-being by efficiently reducing harmful behavior. Our criminal laws are based on some of the most arbitrary aspects of human existence, like power, racial bias, and economic self-interest—they reflect our demons, past and present.

B. The Same Processes Determine How Harshly We Punish

Having made certain activity a “crime,” society must decide how to punish it. How does the legal system choose how harshly to punish speeding, selling various derivatives of the coca plant, domestic assault, sleeping under a bridge, illegally searching someone, downloading music, committing murder, or tax evasion? Why are penalties for texting or drinking while driving more lenient than for cocaine possession even though impaired driving is more dangerous? And why are the penalties for the same crimes dramatically lower in other countries?

The same forces that determine which conduct is criminal also determine how severely different conduct is punished. To take one example, federal law famously treats crack cocaine offenses more harshly than powder cocaine offenses, even though the two substances are pharmacologically identical. For the first seven years that the disparity existed, not a single white person was prosecuted for a crack cocaine offense in seven of the largest American cities. For decades, even the cautious U.S. Sentencing Commission wanted to remove this disparity because there is no legal or scientific basis for it. And when Congress did reduce the disparity after a unanimous Senate vote in 2010—and millions of years in prison later—no one offered a justification for why it had existed. But for reasons that were never articulated, the government did not remove the disparity; it chose to lower the disparity from 100:1 to 18:1. And for more than eight years after that “Fair Sentencing Act” passed, the government chose not to make even these limited “fair” changes retroactive to help the thousands of human beings already in prison because of a law that everyone agreed had no basis. Close to ten years after the celebrated reform under the Obama Administration, the 18:1 punishment disparity is still law, and thousands sentenced to decades in prison under the policy continue to languish.

Besides determining the severity of punishment, these forces influence the way people are punished. For many decades, white elites in the South used the punishment system to transfer wealth, confiscate land, and preserve racial hierarchy through convict leasing—that is, criminalizing people so that their bodies could be forced to work for profit. In contemporary prisons throughout the United States, 800,000 people work long hours every day in often dangerous conditions with miniscule wages to produce products for private corporations and government entities so that prisoners can afford to purchase basic necessities sold by other private corporations inside prison walls. In this way, prisoners work to afford phone calls to their families or toilet paper, soap, and nutritious food—needs that the prisons create in order to coerce this labor. This ubiquitous overcharging of prisoners and their families for basic necessities and the monetizing of human contact with one’s family are not based on what would help improve health, wellness, and community safety during or after release from prison, but on what maximizes profit.

Our society has created other punishments to promote different political interests. For example, in the early twentieth century, Alabama passed a law that took away a person’s ability to vote if the person was caught possessing cocaine. That law was first passed for the purpose of reducing the number of black people voting. In the most recent national election, there were nearly 6 million Americans who could not vote because of the decision to prosecute them in the punishment system, and nearly forty percent of those who could not vote were black. Until recently, Florida alone chose to disenfranchise so many people that 1.5 million people and forty percent of all black males in Florida could not vote in the 2018 election. These Florida laws also had the purpose of limiting the political power of black people. When it became unlawful to deny the right to vote to people based on the color of their skin, a similar result could be accomplished by denying the right to vote if a person committed certain crimes, knowing that “law enforcement” would disproportionately arrest and prosecute people with black skin for those crimes. It is remarkable that many “rule of law” proponents treat these elections as democratic and the laws produced after them as valid even while accepting that large percentages of people are prohibited from casting a ballot because of political decisions made based on their skin color.

In addition to being caged and stripped of the right to vote, people are punished in other ways. One component of contemporary “law enforcement” for drug crimes, for example, is that an entire family can be removed from their home for one person’s drug crime, even a grandmother who had no knowledge that her grandson possessed a substance that the government put on a list of substances for which a family could lose a home.

C. We Have Different Rules of Law, and They Are Inconsistent

How we punish is complicated in another important respect: our laws conflict in ways that make it impossible to apply the “rule of law” without choosing between competing rules. But which laws prevail when rules of law conflict and, thus, which laws come to define the “rule of law” in mainstream consciousness?

One of the bedrock principles of American constitutional law is that when a person has a constitutional right, the government may not deprive a person of that right without sufficient justification. For example, under the First and Second Amendments, I have a right to publish an essay about the dangers of “criminal justice reform” discourse, and to possess a firearm in my home. If the government wants to take away either of these rights, it has to demonstrate that it has good reasons. In the same way, a long line of Supreme Court cases has established that the right to physical bodily liberty is “fundamental” and lies at the “core” of the liberty that the Due Process Clause protects.

The value of bodily liberty has been a central theme of law for centuries. For example, American courts have long required a high constitutional burden of proof in criminal cases: no person can be imprisoned unless the government proves beyond a reasonable doubt that she is guilty. This reflects a paramount libertarian concern with agents of the state doing violence to a person’s body by confining a person to a cage against her will. But while the legal system thinks of itself as applying extreme rigor to decisions about when a person can be caged, it does not apply any rigor to an antecedent question: Is this conduct something for which we should cage a human being?

Consider an example: your friend is stopped by police on the street and searched. The search reveals a small capsule of cocaine powder in her pocket. Your friend is charged with possession of cocaine, which is subject in her state to a penalty of five years in prison. Your other friend, who was also searched, had only a pack of cigarettes in her bag—she was not arrested. A third friend had a bottle of whiskey in his backpack that the three had just purchased from the nearby alcohol distribution trafficking enterprise—he too was allowed to leave. The cocaine possessor was eventually taken to trial. Because of the foundational importance of human liberty to the constitutional Framers, she was cloaked in innocence and would be caged for five years only if the government proved beyond a reasonable doubt that she knowingly possessed the cocaine powder. But the “reasonable doubt” rule did little for her. It was easy for the government to prove that she knowingly possessed the cocaine found in her own pocket.

However, it would be very difficult for the government to prove that putting your friend in a cage for that cocaine possession served a compelling interest, let alone that it served that compelling interest in a better way than other alternative responses to cocaine possession—the standard we would apply if the government attempted to forbid the publication of this essay or seize my guns. Indeed, at least with respect to drug laws, it may be an insurmountable burden, given the existing empirical and scientific evidence. One of the remarkable features of the contemporary criminal system is that most punishment bureaucrats are aware of how ineffective caging people who use certain drugs is at addressing any social ill whatsoever, but they continue to enforce that punishment.

To accomplish this result, an entire strand of constitutional law—due process jurisprudence requiring the government to demonstrate a good reason to deprive a person of her bodily liberty—is ignored to enforce drug laws. I have struggled to find a single judicial opinion acknowledging, let alone confronting, this legal problem. The reason for this silence is that the principle of the “rule of law” cannot be applied at the same time to the law requiring a mandatory ten-year prison sentence for a crack cocaine offense and to the law that the government must prove that depriving a person of a fundamental liberty interest such as physical freedom is necessary to serve an identifiable public good.

In contrast, look at how our society has chosen to deal with a variety of other evils. One can be sued for racial discrimination or sexual harassment at work, for instance, but one cannot typically be prosecuted for that conduct, even though it might cause a lot of harm. The political system has chosen to pursue these other important goals without resort to the criminal system. Even assuming that preventing private individuals from choosing to ingest certain non-alcohol and non-tobacco drugs can create a compelling state interest—a proposition that would take its own justification—a variety of other alternatives to human caging exist to reduce drug use: education, employment, companionship, after-school art and theater programs, medical and mental health care, addiction treatment, and stable housing, to name a few. No government in any jurisdiction in the United States has proven that human caging is a way to reduce drug use at all, let alone the least intrusive way. Instead, a mountain of evidence suggests that the punishment approach to drugs has actually increased drug use and the harms associated with it, including by diverting funds from evidence-based alternatives.

The pathology through which people who call themselves “law enforcement” officials have come to acquiesce in this punishment is revealing. It would be intolerable to our legal system for a person to spend a moment in a cage for cocaine possession if the person did not possess cocaine. But many “rule of law” proponents care nothing for the question: why is it tolerable for a person to spend a moment in a cage when they have possessed cocaine? To answer that question, we would need to ask a further question: is human caging the best way, or even a reasonable way, to minimize the harms that cocaine possession causes?

Thus we have a central paradox of American criminal law: in order to put a person in prison, we have to prove by overwhelming evidence that she merits punishment in a narrow factual sense; but in order to put millions of people in prison, we do not need show that doing so would do any good. Under the unspoken consensus of the “rule of law,” a law authorizing millions of people to be caged for certain conduct will be enforced so long as there is a “rational basis” for it—and the courts define “rational basis” to mean any potential reason, no matter how unpersuasive, and even if it was not the actual reason for the law. This is almost the exact opposite of the “beyond a reasonable doubt” approach that we are told the Constitution requires for taking away bodily liberty. In the latter, a person must not be caged so long as there could be a single reason to doubt her factual eligibility for incarceration.

In this way, courts have chosen to enforce certain rules of criminal law over rules of constitutional law that constrain government violence to individual liberty, even though this order of priority defies the most basic “rule of law” in the legal system: that the Constitution trumps other laws. Thus, if a legislature created mandatory 10-year prison punishments for buying products derived from animals or for drinking red wine, it might be difficult for the government to prove that the prison terms were the least restrictive way of promoting a compelling interest in environmental or public health. This scenario is unlikely to happen, but not because the courts would scrutinize whether the law violates a higher rule of constitutional law. It would not happen because such policies would be politically unpopular among groups with power.

Such flouting of foundational rules of law would be unthinkable in non-criminal areas. Consider an example: Suppose that a state passes a law establishing that parents lose custody of their children if they endanger their child’s health, and that allowing a child to drink sugary sodas is a danger to child health. A federal judge hands her youngest daughter a Coca-Cola drink at a family party. A police officer standing on the street witnesses the incident through the window. Several days later, the judge’s house is raided, the child and several cans of soda are removed from the home, and the state petitions to terminate parental rights. If the judge challenged the law that parents could lose their parental rights if they let their children drink soda, the law would be subject to heightened scrutiny because raising one’s child is a “fundamental” right under the constitutional “rule of law.” Courts would ask whether the law served a compelling government interest (say, for example, child health) and then whether the law’s termination of parental rights was the most narrowly tailored way to achieve that health-related goal. The judge would likely win because it would be difficult for the government to prove the necessity of the drastic step of terminating parental rights to promote a Coca-Cola-free life for children.

But what if the law has a companion provision? What if it also criminalizes the distribution of sugary sodas to minors, punishing that behavior with a mandatory sentence of ten years to life in prison? When the federal judge challenges that law in court, the courts would, under their current abdication of these principles, refuse to review the criminal law for anything other than a “rational basis.” The judge could be sentenced to twelve years of physical confinement. The judge can secure parental rights because the law lacks rigorous justification, but she will lose her bodily liberty and, incidentally, the ability to raise her daughter.

The whole criminal system is pervaded by similar inconsistencies in the “rule of law.” To take one ubiquitous example, the Constitution requires that every guilty plea waiving the constitutional right to trial by a jury of one’s peers be knowing, intelligent, and voluntary. But no one who works in the criminal system thinks that contemporary plea bargaining produces voluntary agreements. The vast majority of plea bargains are accepted by people who are told that they will be imprisoned for longer if they do not give up their right to a jury trial. Many of these people are in jail and are told that pleading guilty is the only immediate way out of jail. In no other cultural context would the word “voluntary” describe this arrangement. Should my coworker ask a person out on a dinner date but tell the person that, if he does not accept, he will be placed in a cage, no one would view the person’s agreement to dine with my coworker as voluntary. That’s not how we understand “voluntary” actions. And yet, because we are attempting to arrest and process historically unprecedented numbers of people in the punishment bureaucracy, the system would collapse if people exercised the jury right envisioned by those who wrote the Constitution. For that reason, the most important “rule of law” in our legal system—the Bill of Rights—is ignored as a matter of practice in millions of cases every year. The U.S. Supreme Court itself has acknowledged that it will not deem threats-based plea bargains involuntary in part in order to facilitate the mass caging of human beings. In this respect, the post-arrest criminal system is not “law enforcement,” but a bureaucracy designed and permitted to circumvent the “rule of law” when necessary to pursue the aims that political elites have assigned to it.

Similar problems exist throughout the application of the “rule of law” in the punishment bureaucracy. In the case of Ezell Gilbert, the federal courts acknowledged that Mr. Gilbert (like tens of thousands like him) was imprisoned under an illegal sentence that was more than ten years longer than allowed by federal law. He was released after many years in federal prison after a federal appeals court finally granted his second petition for release. But lawyers working for the executive branch run by President Obama and Attorney General Eric Holder urged the court to reconsider. A larger group of judges chose to prioritize a legal rule that a prisoner cannot file two petitions for release, even if the first one was wrongly denied and even if the person is wrongfully in prison. Despite federal prosecutors and judges admitting that Mr. Gilbert was improperly sentenced, the federal court decided that the legal rule of “finality” was more important than the conflicting legal rule that people should not be in prison because of illegal convictions or sentences. This, it was said, was the result that the “rule of law” required. Despite having been freed from illegal confinement for months, Mr. Gilbert was arrested by U.S. Marshals and sent back to prison to finish his illegal sentence. Take a moment to think about how you might explain that collective social choice to your family over dinner.

The choice by “law enforcement” to prioritize some criminal laws over more fundamental rules of constitutional law that are inconsistent with those criminal laws results in far less actual liberty from imprisonment in the United States than in any other country in the world, even those countries that do not have the procedural protections afforded by the libertarians who wrote the Bill of Rights. If offered a choice between criminal systems, those with brown skin or those living in poverty might rationally choose any other country, given that their absolute chances of being imprisoned would be lower.

Modern courts have not reckoned with these issues because the consequences of adhering to the Framers’ liberty-advancing principles is the specter that haunts the mass incarceration system built in the last forty years. When the needs of power and bureaucracy conflict with “the rule of law,” our punishment system ignores the “rule of law.” As Justice Brennan observed, the courts have been afraid that the assembly-line punishment bureaucracy could not withstand “too much justice.”

Vi

[I]t is forbidden to kill; therefore all murderers are punished, unless they kill in large numbers, and to the sound of trumpets . . . .

—Voltaire

Criminal laws are an important way in which the punishment bureaucracy accomplishes mass human caging. But the choices that most define our criminal system today relate to how those laws are enforced.

Nearly everyone commits a crime on a regular basis: “disorderly conduct” by shouting too loud in the street at night, downloading a song without paying for it, pushing someone after a heated moment in the schoolyard or the company softball league, failing to declare cash income at a summer job, giving a prescription pill to a friend with back pain, using marijuana to treat a child’s seizures, fishing in an undesignated spot, failing to fully stop at a stop sign, walking a dog without a leash, hiding money in an offshore bank account, withholding exculpatory evidence in a criminal prosecution, making misleading statements in a business transaction, stumbling down the street drunk after a party, hiring a worker who was born in another country but does not have work authorization, stopping and frisking someone without basis, systemically fabricating mortgage documents, giving a teenager a sip of wine, ordering drone assassinations, and more. We commit an incalculable number of legal violations every day. Only a tiny fraction of those violations, however, are ever targeted for punishment.

When almost all of us are criminals, the choice of which violations to “enforce” determines what the legal system looks like in the real world. I have explained how we choose to make laws authorizing and calibrating punishment for certain conduct. Here, I explore how those laws are enforced. Of all the people who violate laws, how does society decide who will be punished and who will not?

Consider a few snapshots of the decisions that “law enforcement” officials are making: in 2015, more people were handcuffed and caged for marijuana offenses than for all violent crimes combined. In many jurisdictions, the single most common criminal prosecution is for driving with a suspended license, and about forty percent of suspended American drivers’ licenses were taken away not for any reason related to driving, but because a person was too poor to pay court debts.

I make three points in this Part: first, discretionary authority to decide who is punished is vested almost entirely in a group of prosecutors and armed agents. Bureaucrats decide which offenses to punish and which to ignore. The people making these choices call themselves “law enforcement.”

Second, like society’s choices about what conduct is criminalized and how severely that conduct is punished, decisions about who to target (and how and when to target them), are also driven by political, cultural, social, and economic forces. They are also made by particular cohorts of people who bring their life experiences and perspectives to their decisions. For example, American prosecutors are mostly men, almost all white, and share a number of other similarities across religious, class, and educational backgrounds.

Third, the “rule of law” is an important story that the punishment system uses to make its decisions appear to be the natural, inevitable consequences of individual law-breaking rather than distributive choices. Laws are broken. Laws are enforced. It must be so. One is punished because one breaks the law. “Law enforcement” officials exist not to pursue political, racial, and economic goals through strategic choices, but neutrally to administer mutually agreed-upon rules for everyone’s benefit. This conventional story is wrong.

A. “Law Enforcement” Is About Making Choices

Our apologies good friends

for the fracture of good order the burning of paper

instead of children . . . .

—Father Daniel Berrigan

1. Prosecutorial Discretion

Government employees called “prosecutors” decide the people against whom to initiate the state’s machinery of physical force. Prosecutors have nearly unlimited authority to decide whom to charge with a crime and how harsh a punishment to pursue for it.

Prosecutors make decisions about what crimes to investigate, what crimes to ignore, whether to file charges in any particular case of lawbreaking, whether to seek pretrial detention, whether to seek mandatory minimum prison sentences, whether to permit a plea bargain, and how severe a punishment to seek, including whether to seek the death penalty, life in prison, decades in prison, probation, or diversion from punishment entirely. Because courts have removed themselves from this process and because there is typically no independent oversight of prosecutors, there is effectively no check on the exercise of American prosecutorial power. And in most jurisdictions, there is no mechanism for the public to initiate an independent prosecution.

This power is executed with little fanfare thousands of times every day as prosecutors decide which arrests to convert into prosecutions. In many jurisdictions, large percentages of arrests never end up in prosecution.

Prosecutorial discretion exists all around us. It floats in the ether, largely unnoticed, because the vast majority of its exercise lies in the body of human behavior that prosecutors choose to ignore. Examining virtually any set of prosecutorial actions illustrates that they are political choices. Here, I’ll look at a few examples that were extensively reported.

It is now known that U.S. government employees committed the crime of torture during what they called the “war on terror.” That widespread torture occurred and that it constituted a federal crime is not in dispute. The torture of human beings included, at least as far as we know: physical beatings, anal rape, mutilation of genitals, electric shocks to the body, waterboarding (a crime for which the United States previously prosecuted foreign soldiers ), chaining people naked to walls in freezing temperatures until they died, hanging people by their arms until it appeared that their shoulders would break, locking a person in a box with insects, forcing people to remain awake for eleven straight days, and other physical and psychological tactics designed to inflict pain so severe that the inability to bear that pain would lead to people providing information. Many people were killed by government employees during these torture sessions—federal prosecutors knew of at least 100 such deaths. The details of these crimes and the surrounding criminal conspiracy are set forth in the findings of every public military, civilian, and international investigation conducted, and they are found in the admissions of the torturers themselves. Moreover, no one disputes that further crimes were committed when the CIA destroyed videotapes documenting its employees torturing people.

No person was prosecuted for torture, murder, or for destroying the videos of government employees committing these crimes. Prosecutors chose instead to ignore these violations of federal criminal law. The official prosecutorial reason for the decision not to prosecute these crimes was that we must “look forward, not backward.” This is a philosophy of prosecution that every convicted person confined in jails and prisons would love to embrace: every person prosecuted in an American courtroom is charged with committing a crime in the past.

The only person who federal prosecutors used their discretion to prosecute for his role in the torture program was John Kiriakou, a high-level CIA official formerly in charge of the CIA’s covert operations. Kiriakou was not prosecuted for torture or for destroying the videos of torture. Instead, Kiriakou’s crime was revealing details about the torture to the public, a violation of the rules against disclosure of information that bureaucrats choose to make secret.

Consider an example closer to home: On May 13, 1985, Philadelphia police officers boarded a helicopter and flew over a de-facto segregated black neighborhood. On the orders of the Police Commissioner, when hovering over the home of a group of black liberation activists and their children, the officers dropped a bomb. City officials initially ordered the fire department to “let the fire burn,” and police shot at survivors as they ran from the home. Sixty-one houses in the black neighborhood were destroyed by the bombing. Eleven people were killed, including five children between the ages of seven and thirteen who police knew were in the home when they bombed it. Exercising their discretion, local and federal prosecutors chose not to prosecute any of the people who carried out or ordered the bombing. But they did exercise their discretion to prosecute the only adult black liberation activist who survived.

Another high-profile exercise of discretion was the prosecutorial response to the “financial crisis” of 2008 and related subsequent scandals. Employees at banks committed crimes including lying to investors and regulators, fraudulently portraying junk assets as valuable assets, rate-rigging, bribing foreign officials, submitting false documents, mortgage fraud, fraudulent home foreclosures, financing drug cartels, orchestrating and enabling widespread tax evasion, and violating international sanctions.

The massive criminality of financial sector employees caused enormous harm. Leaving aside the millions of home foreclosures and the international effects of the crisis, consider just the lost wealth: in 2000, over 30 million people were living in poverty in the United States, and poverty is estimated to have caused over one hundred thousand deaths in the year 2000 alone (about 4.5 percent of U.S. deaths). By the end of the financial crisis in 2009, median household wealth in the United States had declined by $27,000, leaving almost 44 million people in poverty and therefore leading to many additional deaths. During the first full year of the crisis, the wealthiest four hundred Americans increased their wealth by $30 billion.

As of 2013, not a single high-ranking banker had been prosecuted by federal prosecutors for actions that led to the 2008 world economic collapse. As one prominent executive famously wrote in an email: “Let’s hope we are all wealthy and retired by the time this house of card[s] falters.” Again in 2012, the less publicized “Libor scandal” involving many of the same large banks “dwarf[ed] by orders of magnitude any financial scam in the history of markets.” That scandal was followed by a new interest-rate swap conspiracy among largely the same banks that former federal regulators called “the height of criminality.” Dozens other bank scandals have each involved the loss of enough money to prevent tens of thousands of deaths.

The highest-ranking federal official overseeing criminal prosecution in the Obama Administration explained that banks, despite having committed federal felony crimes, would generally not be prosecuted because they were too big, and the effects of prosecution could hurt the economy. There are numerous problems with this speculation, including that there is no evidence to support it. The largest U.S. banks are actually not profitable without taxpayer money; as Bloomberg explained in a seminal editorial, “the profits they report are essentially transfers from taxpayers to their shareholders.” And at the same time that large banks escaped prosecution, they retained an estimated $83 billion in yearly taxpayer subsidies—essentially exactly equal to their profits. (They spend hundreds of millions of dollars each election cycle to convince politicians to preserve this taxpayer subsidy.) Thus, entities that are not independently profitable without government welfare, that drain taxpayer money, and that caused massive suffering through flagrant crimes were protected by federal prosecutors on the unexplained theory that they are essential to social well-being.

In the years that followed, repeated crimes by bankers eventually led to some criminal charges, but prosecutors permitted banks to plead guilty and to pay fines that represented a small percentage of their annual profits. And in these few prosecutions of large banks, individuals were typically not prosecuted, even though it was individuals who committed each of the crimes. Individual prosecutions, as opposed to prosecutions of corporate entities, are more likely to achieve the stated goals of punishment given that it is the individual who makes the decision to break a law. Moreover, as a prominent federal judge pointed out, individual prosecutions do not trigger the concern that federal prosecutors used to justify their lack of prosecutions: they do not result in the collapse of the corporation that employed the individual, even if one believes that the collapse of criminal banking corporations would be the result of a prosecution or, beyond that, that such an occurrence would be bad.

To take another prominent example, it came out in June 2013 that James Clapper, the Director of National Intelligence, had lied to Congress—a felony offense —about the scope of federal government surveillance of private electronic communications in March 2013. When his lie was discovered, Clapper sent an apology letter to Congress and offered a series of explanations for his dishonesty. Those explanations ranged from (1) he intentionally gave “the least untruthful answer” possible to (2) the question was unfair to (3) he did not understand the question. Of course, Clapper could have refused to answer the question in public and answered only in classified communications to the senators. Instead, he chose to give false information, precisely because it would mislead the public about the scope of the NSA’s surveillance of ordinary people. Clapper was not prosecuted for this felony. Nor was any NSA official prosecuted for any of the violations of secret FISA court orders in the surveillance programs that related to Clapper’s lie. Yet Clapper himself subsequently advocated that prosecutors pursue charges against Edward Snowden, the person who exposed Clapper.

This incident echoes the COINTELPRO scandal, in which the FBI committed felony crimes for years against people who were opposed to racial injustice, poverty, killing millions of human beings in Vietnam, Cambodia, and Laos and other causes associated with the political left. The FBI’s pervasive operation against American leftists and black activists, ordered at the highest levels, included blackmail, burglary, threats, kidnaping, infiltration of groups based on their political beliefs, murder, incitement to criminal activity, illegal wiretapping, intercepting letters and replacing them with changed content, and numerous other tactics (some of the most heinous of which the FBI has not publicly admitted, including the assassination of Fred Hampton and the involvement of an FBI informant in the infamous bombing of children in a Birmingham, Alabama church). These “law enforcement” officials also targeted black-led organizations on the basis of their race at the behest of J. Edgar Hoover, for whom the organization’s headquarters on Pennsylvania Avenue is still named. (Years later, the FBI would provide the explosives that the Philadelphia police dropped from the helicopter.) The FBI even undertook an operation to get Martin Luther King Jr. to commit suicide.

This lawlessness was one of the most significant episodes in modern American history: it was a largely successful effort by elites to derail a growing social movement that sought to help marginalized people and that could have transformed American society. It is now viewed by consensus as one of the darkest periods in the history of modern American “law enforcement.” The FBI’s crimes even spurred rare congressional reforms establishing new oversight of “law enforcement” agencies.

But the many FBI employees who committed crimes across the country were not outliers or bad apples; they were government bureaucrats following a “national security” program designed and orchestrated at the highest levels. Indeed, when COINTELPRO was uncovered, a team of over eighty federal “law enforcement” agents was dispatched—not to investigate those responsible for committing the crimes identified in the FBI’s files, but instead to search for those who anonymously sent to newspapers and members of Congress the internal documents describing the FBI’s crimes. Although numerous people were prosecuted during this period for acts of civil disobedience in protest of government policies now viewed as racist and profoundly harmful, federal prosecutors decided that not a single FBI employee should be prosecuted for their crimes.

Strategic prosecution in order to chill political activism has been, and remains, a through-line in American history. Marcus Mitchell, an engineering student and indigenous activist, is awaiting trial for charges of trespassing and interfering with police after police shot him in the face with a bean bag pellet while he was protesting the Dakota Access oil pipeline. Mitchell was allegedly hidden from his family and interrogated while heavily medicated in a hospital bed, guarded by a for-profit security company. He faces up to two years in jail. In 2016, California police and the FBI decided to work with neo-Nazi groups to surveil and then vigorously pursue charges against civil rights groups and activists, including attempting to prosecute a black anti-fascist protestor who was the victim of a neo-Nazi stabbing attack. Tim DeChristopher went to a federal land auction in 2008 to protest the legality of the sale of federal land in Utah to corporate mining interests. DeChristopher believed that the land auction was not authorized by federal law. Once there, he was offered a bidding number and decided to go into the auction, eventually bidding on a parcel. He was prosecuted for bidding on the land without having the intent to buy it. (DeChristopher later raised enough money to cover his bid, and a federal judge ruled in a civil case that the land sale was indeed unlawful.) During his trial, at the request of prosecutors, DeChristopher was prohibited from telling the jury about his motives or the illegality of the land sale, and he was convicted. Prosecutors sought a lengthy prison sentence, and the judge sentenced him to two years in federal prison. The police officer who choked Eric Garner to death was not indicted, but the man who filmed the murder on his cell phone, Ramsey Orta, was harassed, later arrested, prosecuted, and sent to prison for ostensibly unrelated crimes.

It is possible that Mitchell trespassed on someone else’s land, that DeChristopher broke a federal law, and that Orta committed another crime, like those officials in the other examples discussed here. But who a government goes after and who it ignores affects what conduct people feel encouraged to engage in, whether that be political dissent, war crimes, financial fraud, or anything else. The aggregate of these decisions sends messages to the population about what kind of society those in charge want to see, what kind of conduct they will not abide, and what kind of conduct they will tolerate from certain people.

Consider just a few examples from different contexts:

Fate Vincent Winslow was sentenced to life in prison without the possibility of parole for acting as a go-between in the sale of marijuana, worth $10 in total, to an undercover police officer when he was homeless. Clarence Aaron introduced two of his friends who he knew were engaged in selling drugs. Although Aaron had no criminal record, he was prosecuted for introducing the drug sellers to each other. Aaron, a twenty-four-year-old college student, was sentenced to life in prison without parole, meaning that prosecutors used their discretion to ensure that he would die in prison. Stephanie George was also sentenced to die in prison for allowing her boyfriend, the father of her child, to store drugs in her home. George was taken from her child and her family forever. At the request of federal prosecutors, she was given a longer sentence than anyone else involved in the drug conspiracy in which she was prosecuted. There are hundreds of thousands of stories of long prison sentences for similar drug crimes.

Wage theft by employers costs workers an estimated $50 billion per year. All robberies, burglaries, larcenies, and motor vehicle thefts combined cost $14 billion per year. Prosecutors almost never enforce criminal wage theft laws. Due to policy choices, federal authorities chronically underfund the number of employees assigned to investigate wage theft. As a result, corporations engage in wage theft and view the occasional civil lawsuit forcing compensation for these crimes as a cost of doing business.

Federal bureaucrats and private corporations working for profit were caught conducting illegal warrantless surveillance of American telecommunications in 2005. At the time, such surveillance was a federal felony punishable by five years in prison. Despite the acknowledged commission of felonies by high-ranking federal government officials and business executives, prosecutors chose not to charge them. And after paying money to lobbyists, telecommunications officials were later given civil immunity from the damages caused by their unprosecuted crimes.

Children have been physically abused and forced to take psychotropic medication without consent in for-profit immigrant detention jails. Prosecutors have chosen not to file criminal charges. (Federal prosecutors recently chose to pursue charges, sometimes felony charges, against volunteers near the southern border who leave food and water for migrants in commonly lethal parts of the desert.)

Barack Obama ordered killings when he was President. These killings were often of people whose identities were not known and frequently of medics and children who came to treat the wounded at the scenes of American drone killings. Many of the assassinations went wrong according to their own stated justifications, including the bombings of weddings, funerals, hospitals, journalists, and other civilian targets. American prosecutors decided that Obama should not be charged for these offenses, even after he and other officials were caught lying repeatedly about the murders. Obama likely tells himself a justification about why murdering a 16-year-old American child was necessary for the greater good and legally excusable on defense grounds. Should Russia, Iran, Israel, Laos, or Chile determine that assassinations of targets in Chicago and Pittsburgh is necessary to further their interests, or to deter American interference in their elections, those officials would also tell themselves stories about why that preventive violence is necessary to save lives or to “promote democracy.”

As alleged in a lawsuit that my organization recently filed, prosecutors in Phoenix have been making false statements in letters to coerce people into paying the District Attorney’s office to get them to drop marijuana possession charges in a scheme that has earned the District Attorney’s office an average of $1.6 million annually in recent years. This is, paradoxically, both the federal felony of mail fraud and “law enforcement.” These prosecutors have not been prosecuted.

California took away 4.2 million drivers’ licenses because people could not pay court debts. In the past five years, Tennessee took away more than 250,000 licenses for inability to pay tickets and more than 140,000 licenses for inability to pay other court debts. Because dozens of states have done the same thing, millions more people have lost the ability to do all of the things many of us take for granted in life—like go to the grocery store, attend church, commute to work, and visit family—as “driving on a suspended license” has become one of the most commonly charged crime by prosecutors in many jurisdictions. In such circumstances, that crime serves no function other than to criminalize poverty.

According to an investigation by the District Attorney and the Louisiana State Auditor, judges in New Orleans were extorting money from people, wrongfully jailing people who could not pay, and then illegally using the money to fund their own benefits packages. Despite these investigations and later admissions by judges, prosecutors used their discretion not to prosecute the judges.

Jail guards in Florida locked a man with mental illness in a shower, turned on scalding hot water, laughed at him, and left him there until he died. Prosecutors chose not to prosecute the guards.

General David Petraeus was prosecuted for disclosing classified information to a journalist with whom he was having a sexual affair. Although the information Petraeus disclosed included some of what the U.S. government considers to be its most sensitive secrets—more sensitive than the information disclosed by Chelsea Manning, for example—prosecutors permitted him to plead guilty to a misdemeanor and to avoid any time in jail.

Twelve police officers in Miami Beach shot over 100 bullets at a car, killing the man inside. The officers also pointed their guns at witnesses, demanding that they stop filming. Police then confiscated and smashed the cell phones of witnesses to the shooting. The officers then lied, claiming that they had not tried to destroy the witnesses’ videos of the incident. However, one witness had removed and hidden his phone’s memory card in his mouth, and the video given to CNN confirmed the officers’ crimes and lies. The officers were not prosecuted.

Sentencing children to die in prison is illegal in nearly every country in the world, but as of 2012, the United States had over 2,500 people serving sentences to die in prison for crimes committed as children because prosecutors chose to seek life sentences in adult prison.

Prosecutors have begun charging people for filming animal torture on factory farms and for rescuing animals from them. In one widely reported recent incident, federal bureaucrats raided properties in multiple states searching for the person who rescued two piglets from a factory and ordered doctors to cut off part of a piglet’s ear for DNA testing.

Christopher Drew was arrested for selling art on the street in Chicago without a permit, and prosecutors filed charges carrying a fifteen-year prison sentence for recording his own arrest. Throughout my career, I have seen people routinely arrested and charged with crimes for filming police officers committing misconduct or refusing to give police officers their phones after recording police misconduct.

There is no state, county, or city where a person can afford a two-bedroom home while working forty hours for the federal minimum wage, and it is only possible to afford a one-bedroom home in twenty-two of over three thousand counties while making the federal minimum wage. The majority of criminal cases in Portland, Oregon are against people who are homeless. The vast majority of those are for nonviolent crimes.

Prosecutors help for-profit companies collect money on their business contracts by using criminal prosecution when low-income people cannot pay for “rent-to-own” products.

Since Richard Nixon declared a “war on drugs,” there have been twenty million arrests for possession of marijuana offenses, including about 600,000 per year in recent years.

Each of the three presidents from 1992 to 2016, covering more than two decades of the American incarceration explosion, admitted to committing federal drug crimes when they were younger. Most of society does not (at least for that reason) think of them as “felons” unworthy of basic civil and political rights. Had prosecutors chosen to prosecute them for that conduct, it is possible that we would never have heard their names. It matters who gets investigated, caught, and prosecuted.

President Clinton’s perjury was not prosecuted.

Prosecutors charged an eleven-year-old child with a felony for pulling a school fire alarm. After many prosecutors adopted “zero tolerance” policies for children committing misconduct in public schools, there was an explosion in the criminalization of child misbehavior. “Law enforcement” employees are typically not involved in misbehavior at private schools, but “law enforcement” employees routinely arrest, jail, prosecute, convict, sentence, imprison, and supervise children after conviction for the same conduct in public schools serving low-income communities.

Phillip Zimmermann created PGP, the world’s first free encryption program that anyone could use to thwart surveillance. It is now ubiquitous and celebrated as a technical computing achievement. He was initially threatened with an indictment because prosecutors treated encryption software to protect individual privacy as a munition and placed it on the same prohibited export control list as guns and missiles.

Possession of small amounts of marijuana has been decriminalized for years in New York except if possessed “in public view.” But police and prosecutors evaded the “public view” exception to create tens of thousands of arrests and prosecutions in New York City by stopping and searching people, ordering them to empty their pockets, and then arresting them because marijuana in their pockets was consequently open to public view.

Texas officials falsified drug prescriptions that they sought to carry out executions, but they were not prosecuted for this crime.

Henry Kissinger has never been charged for his war crimes by American prosecutors despite uncontroverted evidence of them.

Political appointees in the George W. Bush administration intervened to shut down a criminal investigation into environmental felonies being committed by British Petroleum and allowed the company to plead guilty to lesser offenses without the prosecution targeting senior executives.

Prosecutors have used criminal charges to chill voter turnout from certain groups. In Texas, prosecutors obtained a five-year prison sentence for a woman who cast an uncounted provisional ballot after she purportedly did not know that she could not vote due to her criminal record. Georgia prosecutors attempted to prosecute a black woman city councilmember for showing a confused voter how to operate a voting machine. The woman was acquitted by a jury in twenty minutes.

From 2004 to 2009, there were over 500,000 violations of the Clean Water Act, resulting in rotting teeth, cancer, kidney failure, and damage to the nervous system. About one in ten Americans was exposed to dangerous chemicals in drinking water. Prosecutors chose to ignore the “vast majority” of these crimes, admitting when confronted that their enforcement of these laws was “unacceptably low.”

The goal in offering these examples is not to provoke an argument about whether what prosecutors decided in any one of them is objectively correct. I mean to give a sense of the kinds of choices that prosecutors make when confronted with alleged illegality and how those choices are tied not to a “rule of law,” but rather to particular political preferences.

By choosing to look “backward” and not “forward” in the Winslow or DeChristopher cases, for example, prosecutors sent messages to those interested in possessing marijuana or in acts of civil disobedience in support of environmental causes, in the same way that they sent messages to those interested in covering up evidence of torture or lying to Congress about warrantless surveillance. As in South Africa during Apartheid or in the United States during the civil rights movement, or in any context where geographic distance or time has given us a different perspective, those who are prosecuted are often those who we later judge to be in better compliance with basic moral values. And in a society characterized by deep, systemic injustices, in time judgments about who is a criminal and who is a hero may be reversed entirely.

2. Investigative Discretion

A personal anecdote: my young client once wondered aloud,“How can I tell you what it’s like to leave the house every morning knowing that my body could be searched at any moment? That no one thinks it’s wrong? That they call themselves ‘law enforcement.’”

Something important happens before a case gets to a prosecutor: bureaucrats decide where to look for crimes. They must decide: should we spend our resources looking for people who possess marijuana? If so, in which neighborhoods should we look for them? Should we stop and search people on the street in the Bronx, or should we use undercover informants to see if students possess marijuana in Columbia University dorms? Or should we instead spend those public resources looking into tens of thousands of tax returns?

There is a massive tax-theft problem in the United States that dwarfs all other types of theft combined. The money recovered from the “law enforcement” of tax crimes could be used to save lives. But every billion dollars spent on informants and surveillance to charge low-level drug cases is a billion dollars not spent on informants and surveillance to investigate tax evaders. Through assignments given to hundreds of thousands of “law enforcement” agents, the government makes decisions about which criminals it will look for. Each police department, for example, decides whether to spend money testing a rape kit or a cocaine sample. Every “law enforcement” agency makes further decisions about which neighborhoods to patrol, which crimes to prioritize, and how many officers to assign to different units. When my organization sued the town of Ferguson, Missouri, for example, the City averaged about “3.6 arrest warrants per household” arising out of low-level municipal ordinance violations and tickets, almost exclusively, I uncovered in my investigation, against black people.

Resource-allocation choices determine the response to entire categories of socially harmful behavior. For example, President Ronald Reagan decided to transfer thousands of federal agents from investigating white-collar financial crimes to pursuing the “War on Drugs.” Similarly, the FBI under Presidents Bill Clinton and George W. Bush oversaw still-further declines in its white-collar crime-fighting investigations. The results were stark: federal prosecutors were referred 10,000 white-collar criminal cases by FBI agents in 2000, but that number dropped to 3,500 in 2005, shortly before the worldwide financial system collapsed due to massive fraud. The same is true for the slow depletion of the IRS, which is now unable meaningfully to enforce tax laws against wealthy tax evaders. Indeed, as federal “law enforcement” failed to prevent the $50 billion Bernie Madoff fraud, the FBI alone had at least 15,000 informants, many of whom, along with state-level police and private contractors, were monitoring left-leaning political activists across the country.

The government controls a huge “law enforcement” budget. This money could pay for investigating every doctor who writes an improper prescription, chemical testing and surveillance to locate the sources of illegal pollution of local rivers and groundwater, wiretaps to investigate corruption in police departments, and audits to examine prosecutor offices for withholding favorable evidence. “Law enforcement” could infiltrate boarding-school campuses to bust underage drinking and tobacco use or set up sting operations to fight widespread wage theft by employers. The choices that the bureaucracy makes involve direct tradeoffs, for example, from black families to corporate executives or from drug sellers to sexual abusers.

Tradeoffs exist not only between broad categories of crime (e.g., should we focus our resources on uncovering drug crime or sex crime?), but also within each category. If the government decides that drug possession is a more important priority than is police corruption, water pollution, or rape, it must still decide whether to spend money on police patrols and prisons, or whether to spend money on treatment, medical care, and safe injection sites. If “law enforcement” decides that reducing violent sexual assaults is important, bureaucrats still must decide how they will expend resources looking for criminals; how much they will pay to prosecute and to jail them; or whether they will create programs to reduce gender inequality, help survivors find employment and trauma support, and pay for domestic violence shelters.

Resource choices can be seen not just within police investigation priorities, but also in the money budgeted for other programs, such as housing, drug treatment, mental health care, probation, prisons, and education. For example, under President Clinton, federal public housing expenditures were reduced by four hundred million dollars annually, nearly the same amount by which the federal prison budget increased. Today, as police departments turn to “predictive policing” to supposedly prevent future crime rather than merely investigating past crimes, they are deciding to spend billions of dollars on surveillance instead of investing in lead abatement in poor neighborhoods, mental and medical health care, afterschool arts programs, or affordable places for people to live.

It is important for people advocating changes to the criminal system to explore why elites are making these investment choices even though, based on all the available evidence, the things bureaucrats are not investing in are far more likely to reduce future crime.

B. Cultural, Political, and Economic Forces Influence Which Laws Are Enforced Against Which People

The Panthers thus became the native Vietcong, the ghetto became the village in which the Vietcong were hidden, and in the ensuing search-and-destroy operations, everyone in the village became suspect.

—James Baldwin

Police bureaucrats have the discretion to change a person’s life at any moment, and they exercise this discretion tens of millions of times every year. A major problem with “criminal justice reform” discourse is that most privileged people have no idea what “law enforcement” looks like in practice. The vast bulk of contemporary policing is discretionary surveillance of and ruthless intervention in the lives of low-income people and people of color.

At any stage, from the street to the courtroom, a government employee has the power to immunize crime. How many of us have pleaded for a little bit of this discretion when caught breaking a rule? I have a friend who has never received a speeding ticket despite having been stopped by radar-wielding police at least five times. Police officers on city streets have discretion to stop, arrest, or ignore people engaged in a wide variety of conduct and misconduct. Higher-level officials, by deciding geographic placement of officers, drafting department budgets, and setting prosecution priorities, have the ability to ignore law-breaking in entire neighborhoods or economic sectors. For that reason, the “radical” future of prison and police abolition sought by some on the political left and right effectively already exists for wide swaths of our society: wealthy white people rarely interact with the police, except by choice.

The discretionary exercise of these powers means the opposite for the poor and people of color. What has emerged for them is a metastasized system guided by forces we don’t acknowledge as opposed to good policy made transparently to promote shared values.

A major achievement of the punishment bureaucracy is that it has retained mainstream respect even though it crushes unprecedented numbers of people with no evidence of any unique social benefit while simultaneously allowing enormous amounts of lawlessness that cause massive harm. Why is it still viewed as legitimate?

First, the groups who wield power in our society benefit from the punishment bureaucracy. It privileges their private property, their racial supremacy, their jobs, their voting rights, and their segregated neighborhoods.

Second, the growth of the punishment bureaucracy itself changes our culture and economy. As the bureaucracy expands, it employs larger and larger numbers of police officers, prosecutors, probation officers, defense attorneys, prison guards, contractors, and equipment manufacturers. People working in the system become dependent on its perpetuation for their livelihoods and even their identities. The path of least resistance is to grow more. Jobs are created, local political power is consolidated, and “law enforcement” activities are normalized and then rendered economically essential—such as roadblocks, prison guards, home raids, drug interdiction teams, neighborhood patrols, armed police in schools, SWAT teams, stop-and-frisk practices, social media monitoring, video surveillance, probation drug testing, and “intelligence” divisions. An ever-expanding set of “criminal justice” products are designed and advertised with billions of dollars from investors and tens of thousands more people involved at every stage of their production and marketing, trade conventions displaying the latest products and lucrative bureaucrat training schools follow, along with new protocols for using the new products and training methods on those new protocols, and so on. Soon, an entire society is prepared psychologically and institutionally to confront a public health issue like drug addiction with metal shackles, tasers, and cages.

The more police officers and defense lawyers and border agents and weapons makers and training consultants there are, the more people who internalize the norms of the “law enforcement” culture and who come to depend on it. More people’s friends and family make their livings in these industries, and private family conversations, public discussions, and media coverage change to tolerate and normalize the jobs performed by all of the normal people we know. This process organically increases support for the “law enforcement” complex, extending its influence, both casually through social norms and directly by expanding its economic power through more profit.

The process of how norms evolve is critical to explaining why it seems reasonable to roll tanks through Ferguson, put handcuffs on twelve million people every year, and monitor the lives of tens of millions of people through electronic surveillance when our society, only a generation ago, would have perceived such government intrusions as an authoritarian revolution. The cultural norms and economic regime that these forces have nurtured have produced a “law enforcement” zeitgeist characterizing the past forty years of American life. So embedded is this spirit that the punishment bureaucracy has become the venue to manage social and public health problems such as poverty, deteriorating education, lack of housing, drug addiction, and mental illness.

Third, it is easier to police and jail populations whose pain and inconvenience are not part of the social conscience and who lack economic capital. A decision by police officers to stop, question, and search people is hard to sustain in wealthy neighborhoods. It would feel more shocking, strange, and intrusive to those most able to affect policing decisions, and instances of brutality and humiliation would work their way through the web of social connections surrounding the lives of elites. Children of news anchors would be arrested, doctors and their husbands would have their homes raided and their children’s faces put to the barrels of assault rifles, and bankers would have their anal cavities searched in their high-rise offices. If that happened, twenty-four-hour news pundits would discuss the violent police behavior with large on-screen font, and reporters standing next to news vans would demand explanations.

Fourth, leading punishment bureaucrats exploit these background conditions to obfuscate the functions of the punishment system. Instead of acknowledging that enforcement decisions are made based on cultural norms, money, conscious and subconscious bias, and political connections between officials and the people that they regulate, the punishment bureaucracy masks these deeper forces under slogans like “tough on crime” or “the “rule of law.” This propaganda suggests an almost scientific connection between every instance of law-breaking and an efficient system of enforcement.

The situation is especially ripe for exploitation by punishment bureaucrats in periods when what are marketed as “crime rates” are claimed to be increasing. But the very instinct to respond to perceived increases in (certain types of) crime by more punishment is the response of a ruling class—by those who want to talk about “crime” without changing society.

The zeal for “law enforcement” as punishment means that the legal system does not consider potential causes of misbehavior or ways to reduce it that might have other social benefits—for example, addressing structural inequality, child exposure to lead, gender inequality, or lack of meaningful access to theater, art, music, poetry, and physical wellness activities. The punishment bureaucracy does not ask if these causes of “crime” might be ameliorated without the human cost of prosecution and mass human caging. This lack of care also explains why, in virtually every jurisdiction in which I have worked, I have noticed that the bureaucracy collects virtually no data to rigorously measure its performance.

Consider the drug war—one of the greatest successes of “law enforcement” punishment propaganda. The drug war cost more than a trillion dollars, tens of millions of arrests, hundreds of millions of police stops, tens of millions of years in prison, tens of millions of lost jobs and educations and homes, millions of square acres of spray-poisoned forests, tens of millions of voting rights (including at least one presidential election), tens of millions of children separated from a parent, hundreds of thousands of deaths due to the resulting drug wars and American intervention in Latin America, and massive militarization and surveillance by local police of every American city and town. The vast bulk of these consequences were inflicted on people for personal use of certain substances, an exercise of bodily autonomy that other countries have protected and that this country protects for other harmful substances like alcohol and tobacco. All of this was done in ways that dramatically increased the racial disparities in every stage of the criminal system. For all of these social costs, drug use either did not go down or significantly increased, and teenagers are using dangerous drugs at twice the rate that they did in the 1980s.

Only idiots would pursue strategies that are so counterproductive and destructive for so long—and our legal system’s bureaucrats are sophisticated, not idiotic. The “war on drugs” is about something else.

Above all, one thing is true: The punishment bureaucrats who created the contemporary “criminal justice system” are broadly comfortable with the way that our society looks. They market a crime problem in need of “law enforcement” in order to keep our society looking the way that it does. They do not want to solve the “crime” problem if that means a society that looks much different—say, more equal and with less private profit. Hence they both construct and respond to “crime” with strategies that increase inequality and control, but do little to stop the same problems they purport to care about—and that often make those problems worse, thereby justifying a circular call for more (selective) punishment. And that is why courts do not enforce the rules of law that are intended to make our society more equal when those rules conflict with the goals of the punishment bureaucracy.

In sum, the “law enforcement” religion is hostile to the view that a society that is more equal would have less crime, not because that idea is untrue, but because the very goal of the criminal legal system is to preserve certain elements of an unequal social order even if that inequality creates “crime.”

C. The Myth of the Rule of Law

[T]he alleged protection of our persons from violence is only an accidental result of the existence of a police force whose real business is to force the poor man to see his children starve whilst idle people overfeed pet dogs with the money that might feed and clothe them.

—George Bernard Shaw

To accomplish the “rule of law” trickery, the punishment bureaucracy makes pronouncements about what “crime” is, why people commit crime, and how best to reduce crime by “enforcing the law.” The power of this worldview cannot be underestimated: it has won almost every relevant policy debate in the past forty years. It convinced a broad range of people that the solutions to their problems were not changes to the political system or the economic structure or discriminatory social norms, but rather, more police “on the streets” and more poor black people in prison cages.

The “law enforcement” myth is seductive. Many people, including lawyers and judges, want to believe that something like the neutral “rule of law” can exist, and for good reasons. But it is dangerous to do so without understanding that policing and prosecution are used as a tool of politics and power to benefit some and to hurt others.

One of the most insidious notions pervading standard discourse is that people are investigated and punished because they break laws and therefore that, if one breaks the law, one will be investigated and punished. This principle supports a larger idea: our legal system is objective, trying its best to promote well-being, morality, and human flourishing. The myth that an objective “rule of law” determines the outcomes is important to the system’s perceived legitimacy and to our acceptance of its authority over us.

A lot of assumptions are imbedded in the everyday assessment of the punishment bureaucracy’s legitimacy and effectiveness: Poor people and black people fill jails because they do more bad things than wealthy people and white people. American officials are not arrested for war crimes because they slaughtered people and assassinated democratically elected leaders for good reasons. People are pulled over because they violated a traffic rule or frisked because they were suspicious. Teenagers are searched on their way to school because they live in a “high crime” area and their black and brown bodies are dangerous. A person obtained his wealth legitimately because his ancestors were never prosecuted for acquiring it. Prisoners cannot hug their children or see sunlight because jails are places where we could not safely have family visits or fresh air.

The standard “criminal justice” discourse lulls people into abandoning scrutiny of their assumptions. Government employees who arrest and prosecute people are called “law enforcement” agents; the entire enterprise is referred to in press conferences as an objective entity: “from a law enforcement perspective” or “law enforcement believes that.” As we have seen, it would be more accurate to refer to them as “selective enforcement officers” or “white wealth preservation officers” because they usually enforce only some laws against some people.

Many of the most prominent mass violations of American law were perpetrated or covered up by “law enforcement” officers acting pursuant to official policies, including the Trail of Tears, the ethnic cleansing and forced deportation of more than a million Americans for suspected Mexican heritage, the internment of Japanese Americans, and the arming of right-wing Nicaraguan death squads and the perjury surrounding it. For much of this country’s history, black people were lynched—one of the main features of that ritual being that the openness of the public murder communicated that the “law enforcement” apparatus would do nothing to “enforce” criminal laws to protect black bodies and embraced racial terror. To take just one example, not a single white person was prosecuted after the Tulsa massacre, the most deadly terrorist event in an American city until September 11, 2001. Hundreds of years of criminal acts against black people were unpunished such that the “rule of law” was formally converted into a tool to reproduce slavery by another name.

Given this history, one of the central tasks for punishment bureaucrats is to push the myth that the American legal system at some point became different and more objective than it has been throughout its entire history.

The way punishment bureaucrats talk is therefore like a newspaper assuring us that it contains “all the news that is fit to print.” This marketing technique of feigned completeness and objectivity is a manipulation—its goal to have us ignore editorial decisions about which of the millions of potential news stories to cover. For example, despite its famous motto, the New York Times chooses to cover most plane crashes, but does not contain a front-page article every morning about the thousands of children who died of starvation the night before. By presenting as objective decisions that are highly subjective, both journalists and punishment bureaucrats obscure from debate many of society’s political choices.

The work of punishment bureaucrats to convince people to support selective “law enforcement” against certain populations has created a miscalibration of our response to harmful conduct. Seen from the lens of actual social harm, American “law enforcement” priorities are ridiculous. For example, second-hand smoke alone kills 41,000 Americans every year. That is twelve September 11 attacks on innocent people unlucky enough to have come into contact with other people who smoke products produced by corporate traffickers of tobacco. If one includes Americans addicted to tobacco, that drug kills 480,000 Americans and almost 6 million human beings globally every year. Tobacco use is legal, and the marketing and distribution of tobacco is lucrative. Similar examples pervade every aspect of life: the insertion of food additives and cancer-causing agents into products causes enormous harm, but is not typically addressed through the criminal law; the massive financial fraud of trillions of dollars of taxpayer money over several decades to secretly inflate the military budget has never been treated as a crime; the contamination of drinking water in major cities is rarely discussed as a criminal issue; the billions of dollars in health costs, deaths, and physical pain caused by sugary sodas are harms not addressed through the punishment system. Mortgage fraud and other financial crimes that result in homelessness and an inability to meet basic needs of life kill, by conservative estimates, tens of thousands of Americans every year, not to mention dramatically reducing the quality of life for millions more. To the contrary, the threat of “terrorism” is almost nonexistent—about the same danger to Americans as shark attacks, and orders of magnitude lower than texting while driving. The vast bulk of “law enforcement” resources are thus spent protecting Americans from relatively miniscule risks. This bureaucracy is therefore pathetic as a means of saving lives, preventing harm, and helping humans flourish.

In societies that our culture portrays as primitive, force was thought to have prevailed in all disputes. Stronger people committed crimes at their pleasure. Cities were sacked, nations conquered, and lords were immune from punishment by the size of their armies. All of this has been replaced with “the rule of law” and institutions to “enforce the law.” But, as Camus suggests, there has been something devious in the construction of this bureaucracy. That ingenious element is the illusion of rigorous objectivity, the façade of legitimacy. It’s the ability to turn “murderers into judges.”

Now that this façade is unraveling amidst a new movement challenging the mass imprisonment of black and brown and poor people, many of the bureaucrats who built their careers on the myth of the “rule of law” are trying to rescue the legitimacy of the punishment bureaucracy.

Vii

The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum—even encourage the more critical and dissident views. That gives people the sense that there’s free thinking going on, while all the time the presuppositions of the system are being reinforced by the limits put on the range of the debate.

—Noam Chomsky

Powerful systems have a way of shapeshifting. By some measures, we have more segregation in schools since 1968 even though courts declared that de jure school segregation is illegal. A push to “reform” federal sentencing laws in the 1980s, ostensibly to reduce judicial bias, increased punishment severity across the board. A “bail reform” campaign in the 1960s to eliminate the use of cash bail in federal courts to jail the poor resulted in a system in which the rate of pretrial detention of presumptively innocent people went up. Although the Supreme Court has said that pretrial liberty must be the “norm” and pretrial detention the “carefully limited exception,” over seventy-two percent of federal criminal defendants are now confined to jail cells for the entire duration of their prosecution.

And so we find ourselves in a dangerous time. There is broad awareness of the senselessness of the punishment system and a movement of people organizing to dismantle it. But the forces that made the punishment bureaucracy are aligning to shape how it is “reformed.” The recognition of the system’s unfairness and ineffectiveness has reached such a tipping point that some kind of change must happen in order for the system to preserve its own legitimacy. Accordingly, mass incarceration bureaucrats are looking to become the face of what they call “criminal justice reform.” Their success will depend on whether people can tell the difference.

A. Punishment Bureaucrats and the Rule of Law

On a national level, punishment bureaucrats like Preet Bharara, Kamala Harris, Eric Holder, and Sally Yates are feted as “criminal justice reform” leaders. They and many more punishment bureaucrats have adopted vaguely critical buzz words about mass incarceration that are trendy in liberal elite circles, and they are calling for “reforms,” such as decreasing the use of cash bail in “low level” cases or shorter mandatory minimum prison sentences for some drug crimes. But make no mistake: these former prosecutors devoted a career to mass human caging. For years, each of them prospered professionally by transferring unprecedented numbers of poor people and people of color away from their families and into government confinement. And remember what that means: each of them operated the machinery that abused the bodies and minds of people who lack power in our society without any evidence that the misery they were inflicting was necessary to make our society a better place.

On Twitter, Bharara has billed himself as a “defender of justice and fairness” and a new kind of “sheriff” who has shifted “law enforcement” focus to fighting “big banks, terrorists, hedge funds, and public corruption.” But impoverished people of color in New York City saw a different kind of “law enforcement.” Bharara began his career as a prosecutor at the height of mass incarceration. Although he had access to essentially any job in the legal profession, he chose to become a drug prosecutor, a job devoted to putting human bei