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Have We Been Looking at Mass Incarceration All Wrong?

In his new book, John Pfaff argues that the cause of mass incarceration isn’t the War on Drugs, it’s prosecutorial power.
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Speaking before the National Association for the Advancement of Colored People in July of 2015, President Barack Obama delivered a resounding indictment of mass incarceration and the War on Drugs. “Over the last few decades, we’ve locked up more and more non-violent drug offenders than ever before, for longer than ever before,” he said. “And that is the real reason our prison population is so high.” But what if Obama had it wrong?

Thanks in part to David Simon’s The Wire, Michelle Alexander’s The New Jim Crow, and popular documentaries like the Oscar-nominated 13th, conventional wisdom maintains not only that we have an egregiously massive prison population (the United States has 5 percent of the world’s population, 25 percent of its prisoners), but also that this over-incarceration stems directly from the War on Drugs, its egregiously long prison sentences for drug offenses, and the prison industrial complex. Close the private prisons and ease off the drug laws and unconscionably long mandatory minimums for non-violent drug offenders, goes the narrative, and our prison population will right itself.

However, as Fordham University law professor and self-professed “criminal justice quant” (he’s a data-geek with a Ph.D in economics) John Pfaff argues in his new book, Locked In, the popular explanations for our massive prison populationare deeply flawed, and as a result, the focus of our reforms misguided. His book presents a rejoinder to the aforementioned prevailing reformist narrative, which he pejoratively terms the “Standard Story.” In Locked In, Pfaff plays a Socrates of criminal justice reform, interrogating all the main tenets of the Standard Story and eviscerating them with scores of data. He also points a finger at a powerful actor in the criminal justice system that has largely eluded scrutiny: the prosecutor. “No matter how we define the War on Drugs,” Pfaff writes, “its impact appears to be important, but unequivocally secondary to other factors.”

Indeed, under close examination, the Standard Story does a very poor job at explaining mass incarceration. Pfaff, ever the economist, wades through tons of data to make his case, pausing to consider — and dismiss — any conceivable alternative explanation. “I understand why people make this claim,” Pfaff writes, of the usual explanation: “Timing.” Given the rough coincidence of the War on Drugs with the beginnings of the prison population boom, it can be tempting to see a direct causal connection between the two. However, only around 16 percent of state prisoners are incarcerated on drug charges (despite the outsize attention that the federal prison system receives, the vast majority of prisoners are in state prisons).

If the U.S. were to legalize drugs and release all drug offenders from prisons tomorrow, we would still claim the highest incarceration rate in the world, and the racial make-up of our prisons would still be just as skewed. And while it’s true, Pfaff notes, that the U.S.’s prison sentences are long by international standards, three-quarters of inmates serve less than three-year terms, and half serve less than two. Reformers tend to focus on hefty minimum and maximum sentences, but, in practice, prosecutors rarely impose these punishments, if at all. Claims about the effects of the harsh sentences of the drug war are being made with shaky data, Pfaff argues.

Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.

Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.

Additionally, our prison system — despite features that seem designed to increase recidivism, like some parolees being denied food stamps and subsidized housing — is not really much of a revolving door: Pfaff’s painstaking review of Bureau of Justice statistics shows two-thirds of people who go to prison never return, a much lower rate than previous reports and popular perception had indicated. However, this “good news” about recidivism isn’t all good, since it suggests that the number of individuals who have been to prison is higher than previously estimated, six or seven million people, between 2000 and 2014 alone, rather than the BJS’s previous estimate of five million. Pfaff repeatedly acknowledges that, while the Standard Story’s concerns are admirable and usually have some basis, attending only to them will produce a meager effect on the overall prison population. “There is a hard limit on how far drug-based reform can take us,” he warns.

Pfaff’s wonkish criticism is targeted both generally at the conventional wisdom of the hive-mind, but also specifically at the influential work of law professor and writer Michelle Alexander, whose best-selling 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness has played a prominent role in the dialogue around mass incarceration and drug laws over the past several years. Corey Booker and Tom Harkin even bought copies of the book for the entire senate.

Alexander’s book argues that the harsh drug laws that began under the presidencies of Richard Nixon and Ronald Reagan served as a form of extreme social control that stratified (and continue to stratify) society along racial lines, in a manner similar to Jim Crow segregation policies. Pfaff quotes her at the outset, alongside Barack Obama, as epitomic of the Standard Story’s thesis: “The impact of the drug war has been astounding. In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.”

In fairness, Alexander’s arguments are not exclusively about our massive prison population, but also the tangled web of difficulties (such as probation and loss of housing subsidies) endured by anyone who has been arrested for drug crimes. Additionally, The New Jim Crow presents its points with persuasive emotional heft, a component of the book as central to its ability to encourage reform as any of its specific arguments.

Pfaff does concede that the shibboleth of Alexander and her acolytes has done us some good, at least for now. In recent years, this ethos, coupled with Great Recession-induced budgetary conservatism, has brought an increased appetite for rolling back of some of our harshest drug laws. Indeed, after 38 years of growth, in 2010, the U.S.’s enormous prison population finally began to shrink. The ensuing years have seen our prison populations continue to drop, albeit slowly (4 percent from 2010 to 2014, the last year of Pfaff’s data). And Pfaff admits that “the single biggest driver of the decline in prison populations since 2010 has been the decrease in the number of people in prison for drug crimes,” but he warns that focusing reform on drug laws, non-violent offenses, and sentencing will only have a positive impact in the short-term, and potentially even a pernicious one in the long term.

Though Pfaff doesn’t care to dwell on individual stories and personal accounts of the trauma of the drug war (a notable point of departure from Alexander), he does admit that fixing the drug war sentences will make a big difference to those affected. But, he warns, these reforms are low hanging fruit, and we could be doing a lot more. Chiefly, Pfaff proposes a reconceptualization of our diffuse justice-administration machine and a focus on prosecutor accountability. “Political capital and attention are scarce resources,” he writes. “The window to act is not indefinite.”

Pfaff is not only critical of recent efforts to reform the criminal justice system, but also of the notion of a coherent criminal justice “system” whatsoever. We should think not of a system, he writes, but systems. Criminal justice is carried out by “a mishmash of independent, often competitive bureaucracies, all attentive to different constituencies and facing different political and economic incentives.” While most prisons, and their budgetary obligations, fall under the purview of the states, prosecutors are elected on a county level, and thus convictions come from the counties. The original arrests are usually handled by local police, who are hired by cities and towns. The result of a non-centralized ecosystem of entities is that potentially powerful incentives like tight budgets hold little sway over the people with the most decision-making control. State legislators need to worry about their ability to afford keeping a prison open, but Pfaff thinks county prosecutors are unlikely to worry about state budgets, since state finances are largely unconnected to their job security.

Pfaff sees this moral hazard and lack of prosecutorial accountability as a central, and criminally overlooked, driver of mass incarceration. Prosecutors have a largely unchecked power over whether to charge a crime after an arrest, and over what crime is charged (since often many different laws could plausibly apply to a specific violation). The Supreme Court, in 1985, unequivocally refused to regulate prosecutorial discretion, calling “the decision to prosecute” (or the decision not to prosecute) “particularly ill-suited to judicial review.”

Not only are prosecutors singularly powerful, but they are allowed to exercise this power out of the public’s accountability-encouraging stink-eye; 95 percent of the cases that prosecutors end up charging result in a guilty plea, yet there exists no public record of the harsher charges that the prosecutor threatened if the defendant didn’t take the plea bargain. Prosecutors are largely insulated from the ramifications of their decisions, both structurally (state budgets pay for prisons) and politically (turnout for defense attorney elections is abysmal, and incumbents are usually re-elected, regardless of performance).

Pfaff finds the little data that is available on prosecutors to be particularly damning. Bewildered that no one seems to have observed this before him, he notes (using publicly available data from 1994 to 2008) that, although reported crime and arrests fell throughout that period, the filing of felony cases “rose significantly.” For that same period, the probability of a filed felony case resulting in a prison admission did not change. Pfaff sees the 40 percent increase in the prison population from 1994 to 2008 as almost entirely “due to prosecutors bringing more and more felony cases against a diminishing pool of arrestees.” His confidence in this explanation is further bolstered by his observation that, from 1990 to 2007, the number of line prosecutors (prosecutors who actually take cases) in the U.S. grew three times as fast than the previous 20 years, increasing the number of prosecutors by over 50 percent, despite plummeting crime rates.

Following these observations, most of Pfaff’s suggestions involve increasing the oversight and visibility of prosecutors’ actions, but — cautiously academic to a fault — he points out the possible fallibility of his suggestions almost as soon as he mentions them. He discusses a program of plea bargain guidelines piloted by New Jersey, but worries that, counterintuitively, such a program could actually make prosecutors even more powerful if the guidelines aren’t written extremely carefully. He touts a recent California action (“realignment”) forcing counties to incarcerate lower-level offenders who would usually be held in state prison as a pilot for how to reduce the moral hazard of county prosecutors, but notes that California has mostly subsidized its counties’ increased costs from realignment.

Pfaff’s most confident suggestions are also some of his most difficult to implement. Chief among them is a need to change our attitudes and treatment of violent crime. Over half of our state prison populations are serving time for violent crimes, and almost two-thirds of the growth in prison populations since 1990 has been violent offenders. As Pfaff sees it, there’s just no way to make a significant dent in the prison population unless we re-evaluate how we punish violent crime. Additionally, current public policy tends to treat public safety as primary, which has resulted in packed prisons, at massive social and personal costs. “Less crime is better than more, of course,” he writes, “but that’s not a decision made in a vacuum.” Instead, we should strive to keep crime below a certain level, allowing for slight increases in crime, which might be justifiable if they provide massive benefit to society.

Despite an emerging narrative of opposition between Pfaff and Alexander, their messages should ultimately be seen as complementary attempts at what Alexander has called a “new moral consensus” around our criminal justice system. Last month, Pfaff echoed this central message of his book, tweeting “We need to change our attitude. It’s why Michelle Alexander left law for divinity school.” It’s hard to imagine a book as uninterested in storytelling as Locked In achieving the kind of popularity that can change attitudes toward violent crime and retribution on a massive scale.

But if Pfaff is right, and our current moment is uniquely receptive to addressing mass incarceration, one can only hope that his book resonates, and our scholars, activists, and politicians adjust the Standard Story before the reform window is forced to drink the hemlock, and we lose our chance.