The State, in using its carceral system to support its continued carceral endeavors in order to serve the interests of the incarcerators, has created a terrible feedback loop. Since the Clinton administration, America’s carceral system has been driven by distorted evolutions like this, resonating in our dysfunctional and unadaptive political status quo, with the result that we have never adapted the system to the most common cause of crime, which is the interplay of mental illness and drug (and alcohol) dependency (incidentally, my model for thinking about these people is as a DNA helix with chemical dependence intertwined nigh-inseparably from mental illness).

The state emits a diarrhea of rules and sanctions down on them, trying to “correct” their behavior (likely deeply compelled), without ever controlling for the efficacy of the approach. So, the marginalized hide under an umbrella of disregard as best as they are able, their disdain shown in non-compliance (but not necessarily told, since this community is as politically powerless as they are legally powerless). They have little reason to believe this is done for their betterment, as judged by the outcomes. Unanswered has always been: how do you deter someone who physiologically needs an illegal substance? And: how do you deter someone who is mentally ill?

So, this community’s mistrust is endemic to the conditions: ineffectual for correction, but effectual in destruction.

As a result we have the world’s highest incarceration rate. The highest in the history of mankind. Higher even than the nations that have man’s most monstrous records of human rights abuses. This outcome has been generations in the making, and our dysfunction in adapting to the challenge will radiate damage for generations still, since the most reliable indicator for a person going to prison is whether one of their parents went.

Which brings us to moral hazard: with the breakdown of the family as the primary delivery system of culture (along with the church), of which lawfulness is a part, the state is now in charge. The family has, in essence, been nationalized. This is inevitable: whereas throughout history families paid for the consequences for failing to impart a lawful culture, now the state does. The state pays, so the state says.

Motive, the ancient gold standard for defining criminality, has been replaced with society’s valid concern for mitigating the damage its people can make its taxpayers pay for.

What tools does the state posses to mold society to mitigate costly damage and have its say? School, to a degree, but the state can only really affect behavior with jail or fines carrying the threat of jail. Today, in looking at the results, it should be clear that this tool is as ignored as it is overused, which is not a coincidence.

Think of the years of sway and cajole that a family will build over their children, and the array of tools and calibrated judgement they will use. Parents chew down miles of fingernails in worry over ways to discipline their children that will not destroy them for their own good. Harm mitigation is as natural to parents as it is instinctive for birds to teach their fledglings to fly. Government sanction through incarceration is not calibrated, not incremental and not mindful of the future and long term damage. Add in a police incentive to generate revenue, and you have forces that are on track to knot our criminal justice system tighter in its already corrupt pretzel.

Let’s more closely examine this dilemma of how to calibrate force: up-and-down Harlem speed groups of boys on motorcycles, helmet-less. With the taxpayers on the hook for a lifetime cost of care in the millions of dollars, if one of them overdoes his wheelie and damages his brains, the taxpayers are not wrong to have him stop. But how? The only form of communication is the citation and/or the jailhouse. Lack of ticket compliance would then lead to a real threat to Wheelie-boy’s future, by way of a police record, for his remote risk of a traumatic brain injury (and society’s risk). The taxpayers will become Wheelie-boy’s mommy and daddy any way the apple is sliced, the only question being welfare in brain rehab, or welfare when Wheelie-boy gets out of jail. With his criminal record, who can image he will pay taxes enough to pay his healthcare and retirement over whatever work future remains to him? So, someone else will. That person paying Wheelie-boy’s taxes has never volunteered for children other than his or her own. Now it’s state coercion against Wheelie-boy AND taxpayer, neither of which have proper tools or feedback enough to mitigate the quandary. Taxpayer can no more rectify Wheelie-boy’s stunted culture than Wheelie-boy can relearn cultural mores handed down family to family over our the whole of our history as a species. Or, have his rights for a basic education in a functional school system upheld in the real world. All of which leads us back to the second paragraph, where we saw how his community rightly hides under an umbrella against the emissions of the representatives of the taxpayer. Wheelie-boy and taxpayer both lose.

Here is another example of the costs and distortions in this dilemma: we (my paramedic partners and I) had a terrible alcoholic patient named Greene. When he had a home and a mailbox he would get WIC for his groceries. Since it’s illegal to buy alcohol with WIC, he would offer to swipe his grocery card in exchange for someone buying his beer. So, they’d get sixty dollars in groceries for a fifteen dollar six pack (it would vary, I’m told, Greene loving the negotiation). Greene’s concern for the burden to the taxpayer? See paragraph two. Bad for the taxpayer as that is, it’s not in mommy and daddy taxpayers’ interest for him to be without his liquor either: he would go into alcohol withdrawal seizures, which could land him in the hospital for days or more, to the tune of likely hundreds of thousands of dollars over his life as a patient. All for the cost of the price of a six of beer. How could society police this fraud (even if it’s in our interests to do so)? Greene’s own mother tried and failed.

Of course, layer upon layer, evolution upon evolution, arms race upon arms race, control upon control of how WIC is administered has developed to counter Greene’s system-maneuvering skills, which will only heap cost and friction down on the “true” poor folks, and how does that play? See paragraph two. Mommy and daddy taxpayer lose every which way, it’s just a matter of how much and how fast.

I don’t see an historical precedent for how this possibly can work out well (other than for the players who made it this way): Family and culture has been nationalized, without an examination of the poor history of the nationalization of things before. All over the world industries were nationalized and the policy discarded where The People, recognizing the failure, have a State required to obey their will at the ballot box. Europe, Israel, India, and China all tried, and discarded, a galaxy of variations on the nationalism idea, with never a headline of: “economic policy reform: nationalized industry show efficiency gain!” Yet no country has been able to walk the cat back from the nationalization of the family.

It’s better, obviously, for people to obey the rules, mind the police, and pay their tickets. Eating broccoli is also beneficial. But, to quote the Onion: “Funyuns beat out Responsibilityuns once again in a poll.” For the state to square the circle of this dilemma requires either moral hazard or over-policing, i.e. laying severe sanctions on Wheelie-boy, though he has hurt no one and cannot see how he has. Just how he’s ruined, like just about everyone in the community he sees around him. The taxpayer, the state, must pay, but has no benign way of taking responsibility.

And, of course, there can be no freedom without responsibility. And it would be a truth to point out how American freedom dies with American’s abilities in the governance of the self. And once it becomes wrong to float the indigent sick out on an ice flow, there will be implications for society in adopting the moral hazard of paying for its people’s follies, to which we are all guilty to one degree or another. But the degrees of sanction matter, a lot. The way forward would be to experiment with harm reduction strategies, along with more benign forms of coercion, but both factions in our partisan divide see one coin-face image of this same problem, taking the side they are paid to by their constituents. Can this political system sustain incremental degrees of harm reduction, whose success is to be measured over the same generational time frame as the outcomes of our incarceration mania? Unlikely.

The libertarian reminds that this is the result of setting a problem into the stone of law, without any room for questions or adaptation.

• About the Author

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.