Behind Bars and Other Graphs

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John Pfaff’s data-driven research reveals an original theory of the rise in the U.S. prison population.

Last July at the Federal Correction Institution El Reno in Oklahoma, President Barack Obama peered into a nine-by-ten-foot cell and had a hard look at life on the inside: three bunks, a seat-less toilet, a small sink—and an existence he acknowledged he dodged “but for the grace of God.”

The first occupant of the Oval Office to visit a working penitentiary, Obama vowed to build support for a bipartisan overhaul of America’s penal system. He announced a federal review of the use of solitary confinement, called for legislation to reduce—or eliminate—mandatory minimum sentences, and advocated for early release for nonviolent offenders. The goal: to reduce the 2.2 million people in United States prisons.

A week later, Professor John Pfaff received a call from the New York Times seeking his input for an infographic on the realistic expectations for Obama’s Herculean proposals.

“The president missed a major opportunity to influence the current conversation on how to reduce incarceration. Looking at the overall prison population, most prisoners are in state prisons; only 14 percent are in federal prisons,” Pfaff says. “Even if we let out every nonviolent offender, we still wouldn’t get to the reduction he wants, or as significant a reduction in the number of prisoners as many people think.”

For instance, if all prisoners with drug-related charges were released, Pfaff maintains that the U.S. prison population would only decrease by 300,000 inmates, to 1.2 million, and it would still exceed that of China and dwarf that of Russia, the countries in the number two and three spots of the worldwide incarceration survey. The reality is that less than a fifth of state prisoners—about 16 percent—are serving time for nonviolent drug offenses, while more than half are incarcerated for violent crimes, he adds.

“Since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders.” In his rapid-fire style of speaking, Pfaff is able to discharge round after round of statistic-based obstacles to a problem that was oversimplified in a policy speech.

Pfaff’s intention is not to throw a wrench in one of the President’s legacy issues. He simply wants people to understand the data. When he began studying the numbers about a decade ago, he uncovered some novel truths about the prison population. Since then, in trying to understand the causes of the unprecedented 40-year boom in U.S. incarceration, Pfaff has steadily become one of the nation’s experts on the criminal justice system, its knotty problems, and potential fixes.

“We treat the criminal justice system like some sort of coherent entity with defined goals; at the very least, we posit that those at the top of the political hierarchy use it to accomplish their own objectives, such as reducing crime or regulating and controlling the drug problem,” Pfaff says. “But this ‘system’ is a poorly thought-out, sprawling mélange of competing institutions that at times do not work well together. People now have the impression that someone is putting people in jail and throwing away the key. But it’s distinctively more complicated than that.”

The Problem with Prisons

Faced with a crisis that has swept the nation, politicians on both sides of the political aisle are trying to rein in, and reduce, the U.S. incarceration rate. Even conservatives who have long advocated for higher penalties have come to see the consequences for taxpayer costs of housing prisoners, especially with crime rates dropping.

Pfaff, however, says actors such as policymakers, journalists, academics, and the wider public have all generally accepted a “standard story” regarding the makeup of prisons today that is, as often the case with conventional wisdom, wrong in many important ways. At the heart of the commonly accepted fallacy lie five myths: the War on Drugs drives prison growth; most prisoners are not incarcerated for violent and property crimes; longer sentences contribute to overcrowded prisons; the “criminal justice system” is a coherent entity; and the politics of crime are uniquely dysfunctional.

Through his research, Pfaff has broken down the fivefold prison population explosion—from 320,000 inmates in the mid-1970s to a peak of 1.6 million in the mid-2000s—into two eras: a surge that took place between 1975 and 1991, due in some significant degree to a dramatic rise in violent and property felonies; and the steady uptick from 1991 to 2010, despite the decline of the overall crime rate. In the 1960s through the 1980s, violent crimes rose by 400 percent, and property crime rose by 200 percent. Soaring criminality “changed people’s attitudes toward punishment,” Pfaff says.

“What may really matter is that the Baby Boomers—a large, politically powerful bloc of voters—saw crime soar while prison populations fell and thought a causal connection existed. And this perception, whatever the real relationship, influences the politics of punishment to this day,” Pfaff says.

Over the past few decades, state legislators have also been passing many new, tougher sentencing laws. However, “if you actually look at time served by inmates in prison, it doesn’t appear to have changed that much,” Pfaff says. “We have good data going back approximately 20 years or so. About half of all prisoners who are admitted in a given year only spend about two or three years in prison.” While the laws look incredibly punitive—a maximum of 25 years for a class B felony—“you just don’t see people serving that amount of time.”

A key indicator that the War on Drugs had little to do with the burgeoning prison population came in 1990 when the number of people specifically incarcerated for drugs peaked at 22 percent.

“This meant nearly four-fifths of all state prisoners in 1990 were not drug offenders, and that number has steadily decreased,” Pfaff says.

Drugs could have important indirect effects, he acknowledges, such as playing a role in theft or aggravated assault. Prior drug arrests and convictions also often result in tougher sanctions or treatment for future non-drug offenses.

“But when policy experts and scholars argue that drug incarcerations are the primary source of prison growth, they are mistaken.”

The Unrecognized Actor
John Pfaff

John Pfaff

There are many players involved in the prison population drama, but Pfaff’s work has shown that the roles of most of them—higher judicial and executive positions such as judges, governors, and presidents—are not, after all, as consequential as generally assumed. Pfaff instead homes in on the previously inconspicuous part that prosecutorial discretion has played in enlarging the populations. Although police initially make the arrests, prosecutors decide whether to bring a case or drop charges, file a complaint as a misdemeanor or a felony, and command a prison sentence or a lesser punishment; in other words, prosecutors exercise considerable power. Since most cases are resolved through plea bargains, prosecutors—not judges or juries—negotiate whether and for how long a defendant goes to prison. Furthermore, the majority of these decisions happen almost entirely out of the public eye.

Pfaff says the probability of a district attorney filing a felony charge against an arrestee appears to go from about one in three in the 1990s to two in three by the end of the 2000s.

“At least since 1994, the primary force behind prison expansion has been an increased willingness on the part of district attorneys to file felony charges,” Pfaff says. “Defendants whom they would not have filed felony charges against before, they now are charging with felonies.”

Ask most criminal justice groups and they will tell you that powerful incentives—political ambitions, media pressures, and a culture of prosecutorial infallibility—can serve to induce prosecutors to act rashly (and sometimes unethically) in carrying out their oath of office. Pfaff doesn’t dispute this. The United States holds approximately 2,300 different local prosecutorial offices, with independently elected district attorneys and a lot of authority vested in the head lawyer. A 2012 report from the National Registry of Exonerations concluded that 43 percent of wrongful convictions were attributable to official misconduct, including the desire to attain a promotion, a judgeship, or a political office.

Pfaff, however, says almost no data exists on the concrete reasons prosecutors choose specific charges and sentences.

“Maybe the police are getting better and bringing DAs cases they actually prosecute more rigorously. Maybe the limelight that prosecutors receive has made them more politically ambitious; they want to become the next attorney general or governor or senator,” Pfaff says.

Strict sentencing laws enacted by state legislators become cudgels wielded by district attorneys to send people to prison. “Prosecutors can say, ‘You can take the two-year plea or go to trial and face a 40-year sentence,’” Pfaff says. In other words, longer sentences are not being imposed, but prosecutors are threatening longer sentences, which has resulted in people opting for the reduced sentences and going to prison rather than taking the gamble.

An Illinois Governor and a Chicago Tribune Article

As a graduate student at the University of Chicago, where he earned his Ph.D. in economics in 2005 after his J.D. there two years earlier, Pfaff witnessed some of the “tough on crime” politicians go on trial for political corruption before heading to state prisons. Before one of them, former Illinois governor George Ryan, was convicted in 1999 of the illegal selling of government licenses during his tenure as Secretary of State, he enacted a moratorium on capital punishment and commuted more than 160 death sentences four years later. But it was the disgraced governor’s decision to close a 144-year-old state prison in 2002 in order to trim $4 million from the state budget that turned Pfaff on to prison research.

“I picked up the Chicago Tribune article about this closure, and it sparked some interesting questions: What actually had caused these prisons to grow? How much of this growth had to do with crime? How much had to do with economic conditions?

“Once you start studying it, it’s hard not to get drawn in,” he says. “When you get past the fascination with the numbers, you realize the huge humanitarian angle to it. It becomes difficult not to think about how the system can work better.”

Jeffrey Fagan, the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School, and one of the country’s leading experts on juvenile incarceration, said that imprisonment has developed into one of the most pressing issues in the United States today, and that the punctiliousness and rigor—“the econometric method, the precision, and the depth”—that Pfaff brings to his job also distinguishes his analyses. “John’s research will highlight certain truths that will be extremely difficult to ignore,” he says. Among the applications of Pfaff’s investigation, Fagan believes, will be to illuminate the decision-making processes of prosecutors, challenge the myths about incarceration and sentencing law, promote an inherent conversation about race, and further highlight the ways in which sentencing laws passed by state legislators have been used to coerce plea bargains.

“John has been trained in the numbers and the law, and it’s an important way to contribute to his fields of education. It’s difficult to establish the causal relationships he has drawn, whether between poverty and jail, race and jail, or politics and jail. But what he’s concluded is that many of these people don’t need to be locked up.”

Final Sentences

Since the overflowing prison population started making headlines in recent years, Pfaff has consulted and spoken with a number of news media on incarceration. On August 4, he penned his own public thoughts on the matter in a Washington Post op-ed, questioning the president’s proposed policies laid out at El Reno. Stating that although Obama, as an executive at the federal level dealing with what is largely a state problem, could not have much of an impact, the president could have used “his national pulpit to shape the debate.”

To begin with, the prison system needs to focus less on drug inmates and more on violent offenders. “That a majority of prison growth since 1980 has come from locking up violent offenders does not mean our prisons are overflowing with murderers and arsonists,” Pfaff says. In fact, acts that constitute violent crime vary from state to state. In New York, for example, all burglary, whether armed or not, remains a Class C violent felony and carries a sentence of four to 15 years in state prison. Other states, such as California, assign misdemeanor charges. Because violent offenders may have been sent to prison for low-level acts of violence, “at some point we are going to have to reduce their punishments, although that’s a political third rail,” says Pfaff.

Secondly, Pfaff suggests states could shorten mandatory minimum sentences and other tough sentencing laws, even for more serious violent offenders. Most people (including prisoners) “age out of crime and no longer pose serious public safety risks as they get older,” Pfaff argues. Prison also undermines the traditional pathways out of crime, such as marriage, children, and jobs, thus turning a potential one-time criminal into a career one almost out of necessity.

“It seems likely that prison growth is less the product of some coherent plan and more the unintended result of actions taken by numerous, relatively autonomous bureaucracies,” Pfaff says.

He believes that, at the very least, these actions should follow from solid, verifiable information. Otherwise, the proposed fixes may only serve to exacerbate the problem.

“If we haven’t really fixed the systematic defects that led to overincarceration the last time crime rates went up, what’s to say we won’t make the same mistakes this time?” Pfaff says. “And if our explanations for the causes of prison growth are wrong, then our solutions will be, too. Then we could end up right back in an era of excessive incarceration.”

–Adrian Brune

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