Criminalization does not begin with a crime

When we hear the word criminalization, most of us picture what happens after somebody breaks a law. That’s not really what it describes. Criminalization is about who gets watched in the first place, before anything has happened at all.

A justice system is supposed to respond to what people do. Criminalization works the other way around. It starts with a group of people, decides they’re the kind who need managing, and then builds the tools to manage them. Whether anybody actually does anything is almost beside the point.

That’s why it never really goes away. It just changes clothes. Slave patrols became Black Codes. Black Codes became vagrancy laws, where being out of work was enough to get you arrested. Vagrancy laws fed convict leasing, which rebuilt forced labor right out of the exception written into the Thirteenth Amendment. Then came loitering ordinances, stop and frisk, and the sentencing policies that built mass incarceration. All of it legal. All of it doing the same work.

Most of us picture criminalization happening to Black men, and it does. But when that’s the only picture we carry, we look straight past most of the machinery.

Black women are the fastest-growing incarcerated population in this country, and their account of their own situation gets discounted the same way at a traffic stop as it does at a triage desk. Black mothers meet it as a drug test at delivery and a call to child protective services from a hospital bed. Black fathers get removed from their households at scale by sentencing policy, and then the culture turns around and blames them for being absent. And Black boys and girls run into it before they can read, through adults who look at them and see somebody older, tougher, and less in need of protecting than they actually are.

So let’s follow it across those lives — the same tool, used on different people, at different ages, by different institutions. Ours included.

Start with the version we all recognize, because the shape shows up most clearly there.

When a Black man is killed by police, the same sequence tends to follow. The photo that circulates is a mugshot instead of a graduation picture. Old school records and a prior arrest get dragged out and offered up like they explain something. Toxicology results, or the person’s size, or a discredited label like “excited delirium” turns the body itself into the cause of death. Responsibility slides onto the last few seconds — if he had just complied — and away from the decision to shoot. And the family ends up in front of cameras having to argue that the person they lost deserved to live.

None of this started after death, either. The FBI surveilled and wiretapped Dr. King and Malcolm X and worked to discredit them while they were still alive. The case was being built the whole time.

Now watch the same logic work in places nobody calls policing.

In school it looks like discipline. Researchers have measured adults perceiving Black children as older and less innocent than their peers starting at age five. Five. Black girls make up fifteen percent of girls in American public schools and receive close to half of all suspensions and expulsions, often for things like tone of voice, hair, dress, or “disrespect.” Black boys carry the biggest disparity of any group. A child doesn’t have to do anything unusual to get treated as a problem that needs managing.

In the delivery room it looks like protection. Black infants are more likely than white infants to be screened for substance exposure, and more likely to be reported to child welfare when they are. Investigations of infants that started with a report from a medical professional doubled between 2010 and 2019. By 2019, one in eighteen Black infants was investigated by child welfare after a report like that. For white infants it was one in forty-one. And more than half of all Black children will go through a child protective services investigation before they turn eighteen.

That’s this machinery running through a hospital instead of a police department. Mandated reporting put us inside it. Nobody set out to do that; it’s how the law was written, and we work under it.

The consequences don’t stop when a case closes, either. A report filed at somebody’s bedside can come back years later in a completely unrelated proceeding, whether or not anything was ever substantiated. And families who’ve been reported once learn to avoid care afterward, which means a policy written to protect children ends up producing the exact harm it was meant to prevent.

Which brings us to the question worth carrying out of this chapter. We’d all report a patient in good faith. So the thing to look at is who gets tested in the first place, on what grounds, and whether those grounds are written down anywhere a person could actually go check.

Criminalization doesn't wait for somebody to do something. It decides who's worth watching first, and then goes looking for a reason.