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Rethinking Mass Incarceration in America

A Fordham University law professor challenges the popular understanding of how the U.S. prison population skyrocketed.

The Atlantic

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Stop me if you’ve heard this one before: Starting in the 1970s, U.S. policymakers embraced draconian criminal-justice policies as part of the war on drugs. Tough-on-crime politicians rose to power by pledging longer mandatory-minimum sentences and more intense policing practices. The American legal system became the primary tool for addressing the nation’s social ills. And as incarceration grew rapidly in the following decades, so, too, did the coffers of an emerging prison-industrial complex.

That’s what John Pfaff, a law professor at Fordham University in New York, calls the “standard story” of mass incarceration. But in his 2017 book Locked In, Pfaff offers a different account of the phenomenon’s origins. Instead of the war on drugs, he points to violent crime as the key factor that fueled America’s exceptional incarceration rate. Public-employee unions and rural politicians, not just the private-prison industry, trumpeted the boost in jobs and help to small-town economies that large penitentiaries can provide. And prosecutors, not judges or legislators, made the crucial decisions that gave the United States the world’s largest population behind bars.

Revisiting mass incarceration’s causes involves more than historical study—it also means reassessing both the utility of recent reform efforts and the path activists take next. I spoke with Pfaff about his research, the conclusions he drew, and what they could mean for the future of criminal-justice reform. Our conversation has been edited for length and clarity.

Matt Ford: What do you think we’re getting wrong about mass incarceration?

John Pfaff: I think it’s less that we’re getting something wrong, and more that we’re paying too much attention to secondary causes and ignoring more fundamental causes. So what I argue is that it’s not the war on drugs, it’s not longer sentences, it’s not private prisons—none of those things are irrelevant, they all matter, but we overemphasize their importance. As a result, we don’t pay enough attention to prosecutors, to violent crimes, to public-sector unions, and to the politicians. So it’s more about reframing how we look at it rather than saying we’re looking at the wrong thing.

Ford: In your book, you describe those overemphasized aspects of mass incarceration as the “standard story” of its origins. Why has that narrative become so dominant?

Pfaff: There are several reasons. Part of it, I think, was sort of out of necessity. After 40 years of steady, unrelenting prison growth, we weren’t going to start pushing back on that by passing a be-lenient-towards-murderers bill. Drugs was a natural place to start pushing back against mass incarceration, so I think part of it was understandable and a justifiable political necessity.

Part of the problem is that we tend to talk a lot about the federal system. Federal prison sentences are about half drugs and the states are about 16 percent drugs, but the feds get a tremendous amount of attention. Vox had a survey a couple of months ago in which they asked people, “Do you think about a majority of people in prison nationwide are there for drugs?” And a majority of liberals, moderates, and conservatives all said yes. As for the focus on private prisons over the public sector, I think that probably reflects the political biases of the early reformers, who tend to be more liberal and tend to distrust the private sector.

The failure to pay attention to prosecutors, that’s the one I find hardest to understand—why they’ve been able to skate through the cracks for so long. Part of it is just that we don’t have data on prosecutors the way we do on policing and judging and sentencing—but then again, maybe we don’t really have data on them because we don’t focus on them. I’m not sure which is the chicken and which is the egg there. But they occupy this sort of middle area. They’re not the ones out there with the sirens and the badges that get our attention on the front end. They’re not the ones in the courtroom announcing sentences, the way we view judges culturally in the criminal-justice system. So they somehow manage to escape detection.

Ford: Your focus on prosecutors really stood out to me because we usually think of mass incarceration as the product of judges and legislatures. But you’re telling us to look at the district attorney’s office instead?

Pfaff: Exactly. My own empirical work is constrained to the 1990s onward, just because of the data that’s available. But at least during that period, when prison populations continued to rise even as crime steadily fell, the one thing that seemed to drive that growth was an increased willingness on the part of prosecutors to file felony charges against people who were arrested. We’re arresting fewer and fewer people over that time, and charging more and more people with felonies. Once they’re charged with a felony, the probability they went to prison didn’t change and the time they spent in prison didn’t change. But the risk of your arrest turning into that felony case grew substantially.

Ford: So in a way it sounds like activists don’t have one criminal-justice system or 50 systems to reform, they have about 3,000 of them, one for each county with a prosecutor, then?

Pfaff: Yes and no. There’s policing that we have to reform, and that’s at the city level, so it’s even more of those—about 17,000 or 18,000 law-enforcement agencies. There’s reforming of prosecutors—that’s not quite one per county, but there are about 2,500 prosecutors’ offices. There are some parole reforms you can make, and that’s a state-level change. So each stage requires work, and I think it’s important to stress that the term “criminal-justice system” is very misleading. What we have is not a system at all, but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.

Ford: Does that make reform less likely to succeed? I mean, if activists don’t have a single system to target, are they less likely to effectively marshal resources to change it?

Pfaff: There are two reasons to be fairly optimistic. First is that while there are over 2,000 prosecutors’ offices, over 60 percent of all felony cases are processed by the 11 percent that are in the counties with 250,000 people or more. The majority of cases are managed by some 200 or so prosecutors’ offices, so it’s more manageable to have a big impact. You can accomplish a lot with a small number of these districts. The other thing is the decentralization: On the one hand, it does make work harder, you have to go to more places, but it can also be protective in that one bad decision or one bad approach at the very top has a much harder time percolating down.

It’s why, at least on the prison side, I remain fairly optimistic that reform will keep pushing ahead despite the Trump administration. It’s hard for D.C. to sort of push the system in one direction or the other because there’s no single system for it to push on. And there’s reason, I think, to be optimistic that local efforts are working. 2016 was a very interesting election cycle because at the same time that a large number of Americans voted for Donald Trump, with his very 1980s-style tough-on-crime rhetoric, about 20 or so tough-on-crime prosecutors were voted out of office and were succeeded by reform-minded challengers.

Ford: How does the war on drugs play into this? In the standard story, it’s a central feature, but it seems less focal in the view you offer.

Pfaff: If you define the war on drugs as arresting people for drug offenses, then as it stands right now, only about 16 percent of all people in state prison are there on a drug charge. The increase in sending people to prison for drugs explains about 20 percent of all prison growth between 1980 and 2010, so it’s not the dominant driver. What a majority of people are in prison for are for crimes of violence, so at some point we have to start confronting how we punish people for violent crimes.

And I think that does point to one risk of our standard-story approach: By emphasizing the war on drugs and telling people we can accomplish reform by decarcerating people for drug offenses, we don’t encourage them to think about how to punish violence differently. In that same Vox survey that showed a majority of Americans think a majority of prisoners are there for drugs, a more disturbing question they asked was something like, “Are you willing to punish those who are convicted of violence and pose little threat of recidivism, are you willing to punish them less?” And a majority of liberals, moderates, and conservatives said no, that they are unwilling—even for those who pose a low risk of recidivism—they’re unwilling to contemplate punishing those convicted of violence less.

I think we’ve convinced people that we can really impose deep cuts just by focusing on the safe, easy cases of the nonviolent drug offender. And the fact is, any sort of deep cut in our prison population will require us to reduce the number of people in prison for violence. And I think we can do that and maintain public safety. One statistic that doesn’t get enough attention is that our violent crime rate right now is about where it was in 1970—it might be even better than that depending on which numbers you use—but our incarceration rate is five times higher. So unless you think Americans are five times more violent today than in 1970, that’s hard to justify. And if anything, I’d say the crime-age American citizen today is probably less violent than the same person in the 1970s, so it’s even harder to justify that way.

Ford: If I’m a state legislator who’s worried about being painted as soft on crime, and I’m worried about all the traditional political attacks that go with it, what steps could I take to reduce the number of people in prison for violent offenses that would be safe and equitable and just?

Pfaff: One thing they could focus on would be expanding parole options for people convicted of violence. Often when we see states push to expand parole choices, more often than not they explicitly exclude those convicted of a current violent offense, or sometimes even any prior violent offense. And that’s kind of self-defeating, because the fact is our popular model of violent behavior is not really accurate. We tend to use the term “violent offender.” I work very hard to never use it if I can, because it defines someone who commits a violent act as that’s who they are: They are a violent person, it’s a state of being. And violence isn’t a state of being, it’s at most a phase. People also age into and age out of crime. Someone who commits a violent crime when they’re 16 isn’t going to be nearly as violent when they’re 30 or 35. There’s hormonal changes, there’s cultural changes, social changes—you get married, you have a job, and that helps you desist from offending. We tend to lock them up for longer periods of time just as they’re aging out of crime.

So the thing a legislator could do is expand parole options for people who have been convicted of violence and stop excluding violent crimes from eligibility. But I think the central role violent crimes have played in prison growth suggests that this isn’t necessarily something legislators can fix for us. These are not acts that we necessarily want the legislature to decriminalize, and even current sentence lengths aren’t that long. The median time in prison of someone convicted of violence remains about four to four-and-a-half years. That’s a long time in prison, but not some staggeringly long sentence.

I think what it points to is a greater need on the part of prosecutors to either use their discretion better or for us to figure out ways to channel or limit their discretion so they’re not quite so aggressive, to rely on prison less, and focus more on preventative approaches that prevent the violence from happening in the first place.

Ford: One of the themes that really struck me throughout your book was sort of the statistical gaps we have—especially about prosecutors but also about other parts of the criminal-justice system. How does that shape how we understand criminal justice itself, as well as the efforts to reform it?

Pfaff: It’s important to stress that however weak our data is on policing and prisons and crime, our data on prosecutors is almost nonexistent. There’s no centralized data set on what they do, and most of the offices don’t provide information of a meaningful sort themselves, so you have almost no idea what they do. And from a policy point of view, that makes it hard for us to regulate them. It makes it hard for voters to make careful decisions about what the DA is doing and whether they support that policy or not. From a policymaker’s perspective, it means that we don’t really know how legal changes will actually play out in practice.

Ford: We’ve seen a lot of states experimenting with various criminal-justice reforms in recent years. Are there many states where you think they’re much more accurately addressing the causes of mass incarceration—looking at violent crime, looking at prosecutors—than others?

Pfaff: When it comes to violent crime, very little. But one state that does deserve credit is actually Mississippi, which is, as far as I can tell, the only state I’ve seen that actually explicitly cut time served for people convicted of violence. Like many states, Mississippi had what’s called a truth-in-sentencing law that said for certain categories of offenses, often for violent crimes, an inmate must serve a minimum of 75 percent of the sentence before he’s parole-eligible. And a couple of years ago, they actually cut that back from 75 percent of the sentence to 50 percent of the sentence, and that was just for people convicted of violence.

But you see very little of that. More often you see the exact opposite. Even states that have gotten praise for their reforms, like South Carolina, what they often do is agree to cut time served for drug and property crimes, or raise the threshold for a felony so they move how much you have to steal for felony theft—but then they pair it with an increase in punishment for violent offenses. So they sort of say, “We’ll cut sentences for the nonviolent crimes to free up space for people convicted of violence, and we’ll increase the sanctions for violent offenses.” It’s happened in South Carolina, it’s happened in Maryland, it’s happened in other places. I wouldn’t say it’s backwards, but it’s concerning, because while the cuts for the property and drug offenses make sense and are laudable, we also need to start figuring out how to cut back on violent crimes, and we’re doing the exact opposite.

When it comes to prosecutors, I’ve seen nothing by any state that really aggressively goes after them. California’s very complicated realignment approach, which was their response to the Supreme Court’s ruling on the Ninth Circuit’s overcrowding litigation, has had an impact on prosecutors. They told counties that if you convict someone of what’s called a “triple non”—a nonviolent, non-serious, non-sexual offense—even if he’s supposed to go to prison for years and years, you have to keep him imprisoned in the county jail. And what that does is have important—and I would say somewhat boring—budgetary implications. One reason why prosecutors can be so tough on crime is that they are county officials, but prisons are paid for by the state. So if you convict someone of a felony and send them to the state, your county doesn’t pick up the cost, the state does. So being tough on crime is actually financially free and political popular.

Jails, on the other hand, where we send people convicted of misdemeanors, those are paid for by the county. So what California’s basically said is that for these triple nons, the county has to pay for their incarceration, not the state, which undermines to some extent this free-riding opportunity that prosecutors had. It’s complicated, it’s imperfect, but that’s the only real effort I’ve seen that affects prosecutors. I think more consistent with what we see towards them was Hillary Clinton’s end-to-end criminal-justice-reform plan that talked about policing and talked about parole and completely ignored the prosecutor, didn’t mention it once. To me, it wasn’t so much end-to-end as it was end-and-end. It got the ends, but it missed that critical middle of the prosecutor.

Ford: Activists enjoyed a few years under the Obama administration where they had a combination of low crime and bipartisan support to really try to change the conversation. Now that there’s a president who’s willing to be not only as vocally tough on crime as politicians during the peak era, but also in some cases even more so—does that change the dynamic for criminal-justice reformers and how they should look at the other aspects of the system you mentioned?

Pfaff: I’m less concerned about Trump’s rhetoric and more concerned about the actual uptick in violent crime we’ve seen over the past two years. Here’s why I’m somewhat less concerned about Donald Trump than I think many people are: Partly, like I said, I think it’s the localism that’s what matters—that decisions being made are being made by local prosecutors and they respond to their own local interests. So there’s not much that Trump can do to move them one way or the other.

I think the example that I find most striking for this isn’t a federal one, it’s actually a state one, which is the Rockefeller drug laws. In 1973, New York passed some of the harshest drug laws in the country. [Governor Nelson] Rockefeller passed them to appear tough on crime in his effort to do a sort of end-run on the right as part of his national political aspirations.

Yet what’s interesting is that shortly after these laws were passed, there was a slight uptick in New York state prisons for drugs—but then it drops. And by 1984, 11 years after the laws were passed, there were actually fewer people in New York state prisons for drugs than there were in 1973 when the laws were adopted. So New York passes these tough drug laws, the governor is using them as a statement to show he is tough on crime—and all the local prosecutors just ignore them. Then, in 1984, the number of people in prison for drugs starts to rise, and rises precipitously for the next 10 or 12 years. That’s not just drugs, that’s crack. When the crack-related violence broke out across New York and the rest of the country, the prosecutors responded by using the drug laws as one way to target that violence.

And then the number of people in New York state prisons for drugs starts to drop in 1999, years before the first reform law. When those reform laws were passed, there’s no change in the decline of the number of people in prison for drugs in New York. So basically what happened is the New York City DAs who led this decline had decided to stop sending people to prison for drugs independent of what was happening in Albany.

What that story tells me is that DAs are very local and they’ll respond to local conditions. If crime is going up, they will become tougher. And it will look perhaps like Trump’s rhetoric is pushing it, but I think it’s more that if things get tougher, Trump’s rhetoric will be a mirror of the underlying changes, not so much the cause of them.

And I would say that even if crime is going up, I don’t think that means we should turn more to incarceration. Even if violent crime is rising, there are other, far better options that we can and should use, and I think reformers need to get out ahead of that. Oftentimes we see a lot of the big reform groups saying, “Look, don’t worry, crime isn’t going up that much, it’s not really going up at all, we can still reduce prisons and reduce violence,” and that troubles me because that ties prison reform to low crime.

The fact is that whether crime is high or low, prison is not the most efficient way to respond to it, and I think we need to start telling a story that there are better ways—even if violent crime is rising, say, “Look, even if this is a real upward trend, prison is not what is going to rein it in. We can do this much better, much more smartly, in a much less costly way by focusing on well-established interventions that are good at disrupting violence.”

Matt Ford is a former associate editor at The Atlantic.

This article is part of The Atlantic’s Next America: Criminal Justice project, which is supported by a grant from the John D. and Catherine T. MacArthur Foundation.

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This post originally appeared on The Atlantic and was published March 2, 2017. This article is republished here with permission.

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