One of the few things our divided America agrees on is that our criminal justice system is failing. That the explanation and solution would be polar opposites is a separate matter. Leftists point at the Kyle Rittenhouse shooting, Righties point at the Darrel Brooks vehicular mass murder spree. In the billions of words of cyber-ink spilled in the explaining solutions, this blog offering is worthwhile because it addresses the real question covered over by the coverage, forest-through-the-trees style. America locks up more people than the rest of the developed world combined (throw in China and Russia for good measure).

The real question is: Are we doing that because Americans are too wild to be free? Or because we lock people up for things that other nations do not?

It has to be one, or the other. Pause to ponder it…

This libertarian says that incarceration is the wrong tool for most of the things we use it for. Between half of and a third of all American prisoners are mentally ill. The lion’s share of people jailed in America are for illicit substance abuse. Every other country in the Western world has a less-criminal approach to both.

In my generation of clinical experience dealing with the people afflicted by these issues, I can testify that mental illness and illicit drug use are twisted together like a DNA helix. Trying to parse them apart within a framework of morality, much less through a criminal/non-criminal legal distinction, is much of the reason why we are so far down the road of system failure. We know that the finest of us, people in combat serving the US military, can have mental illness induced by repeated trauma. Prisons are just as stressful, if not worse. We are taking mentally ill people, and inducing PTSD.

Given this task (impossible, IMHO), the legal system has also failed to adapt itself into an efficient tool for the purpose. Nor have we changed our notions of punishment, we should do both.

Police statistics reveal that the majority of police activity involves things having nothing to do with real crimes, the definition of which would be agreed upon by any society on our earth today (or millennia ago). Those would be taking people’s stuff, hurting them unlawfully, etc.

On top of criminal justice maladaptation, we have sensationalist media distortion that compounds our mistakes, and inhibits our ability to differentiate between crime/not-crime. In a piece I wrote about the rise of Mayoral candidate Eric Adams, I showed how just one infamous incident in Times Square boosted his political appeal. His candidacy was itself a reflex against a distorted “Defund the Police” meme. “Adapting the police,” because they rarely do real police work, because most of their “clientele” are not doing anything really criminal,” would have been a useful definition of the problem that might have brought some progress towards reform (once again, as always, thanks for nothing, radicals).

Now we have millions of Americans wanting to alter the most baroque legal system ever, which is already clogged up with flights-of-folly-fashion-based outlier cases, the notoriety of which were created by media distortion in the first place. Crack vs cocaine of the snorting variety, for example. There is no real objective distinction in terms of medical effects. Hell, this describes the whole drug war.

There are millions of criminals (or “criminals”) who go about their business, with all sorts of legal sanctions against them, who do not commit anything like Darryl Brooks’ outrage. One out of three men of color are under some form of state control. The DA who advocated for the bail reform that affected the Brooks case knew there would be consequences. He knew it because there is no way to read a person’s mind to figure out what danger they might present in the future, and he was just speaking that fact out loud. I watch psychiatrists agonize over things like this in a medical setting all the time. As they say in finance: “past performance is no guarantee of future results.” Many criminals/psych patients get worse, most are redeemed (aging is a great redeemer). We either accept outliers as such or we incarcerate more people than we already do (which would be way, way more than anyone else). If you feel you have the expertise to predict which, out of these millions of people, will be dangerous in the future (not by 20/20 hindsight behind your newspaper in your study), stop reading this blog, establish the foundation of your scientific discipline, and then go collect your Nobel Prize. Because what we are talking about is mind-reading.

There are 1.2 million outstanding warrants that had to be waived in Brooklyn alone. 99 percent of these are for nuisance issues, like being out in public with an open container of alcohol (the police have special squads for hunting down crime-criminals). Bail reform was needed the way we had to discharge really sick patients from the hospital to make way for COVID cases (and remember, COVID was some of the impetus behind bail reform: in prisons and jails virus hygiene and social distancing is impossible; the virus would have wiped the prisoners out. Put them all back in prison, and the virus thrives again).

Kyle Rittenhouse himself said that he supports the BLM complaints of strong-arm prosecuting. Doubly-so, you have to imagine, now that he was the target of a prosecution chockablock with misconduct. He conceded that he had the financial means to defend himself in court, just as well as he did against the rioters. His day in court was another outlier: most defendants will have a prosecutor stack up as many charges as possible and make them contest each and every one as a [pressure tool for a plea-bargain][8]. But the coercion to bargain is what makes our system run, necessitated by the job we are making it do, under the conditions we make it work under. Which is continually piling crimes/non-crimes on their desks.

Lastly: anyone reading a libertarian blog cannot be surprised when the government fails to apply wisdom and judgement which would be basic common sense to everyone else (the government banned COVID tests). This scribbler wonders how much of the perverse growth of the system was to adapt to its own lack of wisdom and judgement. Darell Brooks mowed down scores of people, and snuffed out the lives of six, as he fled from being arrested for running over a woman (a different one) earlier (a woman of color, of course). This running of people over is very much who he is. His rap sheet is terrifying.

Somehow, we can have a “three Strikes you’re out” approach to drug crime, and have a professional predator released on a $1000 bail, after he had jumped a low bail (a different one). The “somehow” is: this is the same system that would not allow you to buy a COVID test at the outset of the pandemic of the century, and then mandated you get one. This is the same system that thought invading and forcibly re-educating the Middle East was a good idea.

But the other “somehow” is the inevitable consequence of prisons overcrowded to bursting. And that is because the criminal justice/carceral system is our only tool for addressing our social ills. The system is overburdened to where we had no room left for an obvious goblin like Darrel Brooks. And that is because we fail to discriminate between what is really criminal, and what are black marks on the human condition, which no putting people in cages can correct.

When everything is a crime, nothing is.

Eugene Darden Nicholas

About Eugene Darden Nicholas

Eugene Darden (Ed) Nicholas is from Flushing Queens, where he grew up sheltered from the hard world, learning the true things after graduating college and becoming a paramedic in Harlem. School continues to inform and entertain in all its true, Shakespearean glory. It's a lot of fun, really. In that career, dozens of people walk the earth now who would not be otherwise. (The number depends on how literally or figuratively you choose to add). He added a beloved wife to his little family, which is healthy. He is also well blessed in friends and colleagues.


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