The rules of the game are the continuance of the game. As its rules appear with ever greater clarity during play, the game itself looks more mysterious. The opposite is also true: a transparent game conceals secret rules. The rules come to bear with that quiet insistence which marks the ultimate satisfaction of the law, strengthening both the opaque center and the widening periphery of engagement. De Sade said that in a criminal society one must be a criminal. Abu Hanifa said that for every act the law forbids there is a circumstance where that act is permissible. The American Constitution guarantees every accused the right to a trial under its Sixth Amendment, but in reality some 95% of all cases cop a plea bargain, guilt or innocence notwithstanding. Court time is a public cost and punishment for drawing on it is dire, although the greatest burden, the manufacture and upkeep of the great prisons, finds a limitless taxpayer reservoir.
Incarcerating US, a new documentary about the Drug War and its casualties directed by Regan Himes, begins with a montage of news clips. Nixon, while bombing Laos and Cambodia and allocating funds from his Golden Triangle connection at Langley, assumes the gravity of John the Revelator as he warns viewers of the abyss of drugs. Nixon, father of the War on Drugs, was a Quaker. The first American carcerals were a product of Quaker ideas of penitence over punishment, hence penitentiary. Although the right-wing cries vengeance, the religious idea of resurrection and liberal ideas of moral transformation have given prison its most durable motor. Some 2.3 million prisoners reflect the success of this historical project.
Other talking heads flicker in and out of the film: Bill Clinton, master of the three time loser jail bonanza and protector of the Mena cocaine hub; schoolmarmy Nancy Reagan and her husband, the great enabler of crack by the Contra pipeline; Rockefeller the Butcher of Attica and his life sentence for every pusher, and other representatives of the house advantage. The emphasis on penalizing the user and the minor operative shows an important rule: the experts at the top can forgive many things but they cannot tolerate the small-time player. Capital invariably centralizes, squeezing the layman out. “Of course a situation like that does tempt amateurs, but, well, you know, they can’t stay the course like a professional…”
After 1970, a hollow year in Vietnam, the near-constant level of incarceration which began in 1920 came to an abrupt end. It has soared since then, fed by the vast amount of federal monies poured into the states for drug law enforcement. The Drug War is furiously bipartisan. The two-headed bird of prey has succeeded in creating 25% of the world’s total prison population and vast enclosures to contain them. Reagan-Clinton laws got you 5 years for 5 grams of crack and 10 years for 50. Math is everything, as mandatory sentencing laws operate with the iron efficiency of institutionalized waste management. Numbers of those who become other numbers, a vertigo of numbers washed at the ford of numberless quota. Clinton’s regime would outdo Reagan’s, predators going after predators with the efficacy of drones and the same bent for cutting the young.
One of the catalysts for yet more outrage and increased government spending on the dope plague was the 1986 OD of basketball star Len Bias, a native of the Beltway itself. Turns out that sports, that great symbol of good-natured American competitiveness – never mind heretics like Jesse Owens and Ali – still had the stench of the street on it. The kind that lured Bias from the court would pay: poor people, especially blacks, as Bias was black himself. The schizophrenic swing of adoration and hatred for athletes finds its essence in this man who disappointed so many good people by reminding them of that other game where blacks are allowed to make money in America. Even his name was against him.
‘We are all frail human beings, doing the best we can’, says Judge Robert Holmes Bell, one of the more curious cases in Incarcerating US. Frailty is apparently an attribute of the judiciary, who deserve infinite psychological patience, and not of the criminal beast, which is hard, cruel and vigorous. Bell is seen earlier in the film quoting a Pre-Sentence Report full of black redactions (He even gives the man’s name!). After letting us know that the subject tried to kill himself when he was 7 years old and has done a hell of a lot of drugs since, he declares that the report ‘says more than I want to know’. Strange admission from a stranger man. He had clearly made up his mind long before, although he nods respectfully toward the process. The very picture of a thoughtful reactionary, he admits to intrinsic flaws in the system, blames only his own humanity for allowing their influence, and reveals all his utter ruthlessness in several weary words.
For the most part, however, the law is represented by outright penitents. Men like Eric E. Stirling, an articulate establishment man who knows one side of the Drug War very well indeed. Until 1989, Stirling crafted some of the most severe anti-drug laws on the books for the House as Assistant Council for the Subcommittee on Crime. Since his Damascus, he has done much fine work trying to undo his old damage and has used his internal knowledge to get people out of the joint. Still, it’s rather odd to watch his mea culpa, heart-felt no doubt, to see him in his office with pictures of cons he is helping and posters railing against his old writs… redemption for the prisoners, redemption for the doctors of the law. Stirling holds a doctorate in religion (Judge Bell also has a BA from a religious school, Wheaton College). Religion permeates this film in both the language of the lawyers and the tactics used by the incarcerated to endure hell. The Church Father Origen believed that even Satan would be redeemed at the end of time.
There is no point here in going into the monstrous waste and state-sanctioned murder that is the US prison system. Or the drug conspiracy laws, a cynical card in our paranoid deck, which doles out massive sentences cyclically to the innocent or the lowest players in the game. For the most part those at the top, even if they do not fly from Mena, are too big to fail. Busting someone on the street merely creates a job opening, as an ex-cop in the film says, good news for the job-creator and for the Republic which allows each man to be an entrepreneur regardless of his sentence.
Incarcerating US highlights the ascendancy of the Prosecutor, the true master of the court in many respects. Via threats and intimidation, this especially venal agent works to ensure each case never gets a jury trial and the accused is conned into accepting whatever dark prospects he is given in lieu of darker ones still. The film does a superb job in following such chains of command and traces with cold precision the glittering legal maneuvers that cloud the static correctional form.
You held your head high when they sent you to school and higher at the doors of the first Reformatory. Menard, Pontiac and Stateville are the working class ivy leagues and time done there will get you respect. I respect you; I have been taught to respect you. This is the initial insight into the rules of the game. And what can blame matter? The politics of blame is the business of prison contractors and advocates, like that shitty little joke called innocence or guilt. When you hear talk of blame or responsibility or justice served, it is always from these specters at the very heart of play. Such words mean only the rules of the game. Taken outside the game, they can have no meaning.
It may be that the long religious history of prison – the monastery of the profane – is coming to an end. Perhaps haunted by the fear of a coming civil war, as the Minerva Initiative shows, the Most High are now primarily interested in allocation of space, liberalizing the crime market and the intriguing psychology of crowds. The mission of the tremendous prison complex is changing and is perhaps on its way to attaining its purest state. With this, the old azure line of meditation and the spirit is being erased by a less hypocritical but far more solid mass. What will come of this? God knows.
 See Nafeez Ahmed, ‘Pentagon Preparing for Mass Civil Breakdown’, https://www.theguardian.com/environment/earth-insight/2014/jun/12/pentagon-mass-civil-breakdown