Pfaff: Blame DAs for Mass Incarceration


District attorneys in America’s most populous counties must change their charging practices for meaningful mass incarceration reform to occur, Fordham Law School Professor John Pfaff said during a May 3 discussion forum at the New York City Bar.

America’s 2.2 million incarcerated residents account for 25 percent of the global prison population, a fact attributable to prosecutors bringing felony charges at twice their previous rate, starting in the mid-1990s, Pfaff said during the event titled “Mass Incarceration: Causes and Solutions.”

“The person almost entirely responsible for prison growth, at least in recent years, is the prosecutor,” said Pfaff, author of the forthcoming book Locked In: The True Causes of Mass Incarceration – And How to Achieve Real Reform. Moreover, the lack of existing data on the incentivizing practices that motivated America’s 2,300 district attorney’s offices to charge more felonies from 1994 to 2008 is “staggering,” he added.

Around 12 million Americans are admitted to jail on an annual basis, with an estimated 7 million of them unique visitors, said moderator Nicholas Turner, president of the Vera Institute of Justice, at the event’s outset. Another 500,000 or 600,000 are admitted to prisons.

Today, 700 people per 100,000 are incarcerated in America versus 125 per 100,000 in the early 1970s. The prison population explosion has placed America six to ten times above the incarceration rate of European countries that it compared similarly to in the 1970s, Turner explained.

The manner in which the system operates—or doesn’t—is a major problem, Pfaff noted. City police answer to the mayor, the district attorney often answers more to the suburbs, the parole board answers to the state, and the laws are passed by the legislature, he said.

“This is not a coherent system,” Pfaff said. “All types of fractures run through it.”

As a result, there is no one to “put the brakes” on mass incarceration, he noted.

This system without brakes has resulted in 1.5 million people in the custody of state and federal facilities and the remaining 700,000 in local jails.

American University Law Professor Angela Davis agreed with Pfaff’s assertion that prosecutors’ felony charges were the single biggest driver in prison growth between 1994 and 2008.

“They got us into this mess and now they have an ethical obligation to get us out of it,” Davis said.

Both Pfaff and Davis spoke of the need for progressive district attorneys, such as Milwaukee DA John T. Chisholm, in the nation’s largest counties, as well as assistant district attorneys that reflect the diversity of the communities they represent. America’s 75 largest counties account for 50 percent of the prison population, according to the Bureau of Justice Statistics.

Pfaff pointed to the fact the suburbs often exert a disproportionate influence in electing the district attorneys responsible for charging inner-city crimes as having a role in the over-representation of African-Americans in prison. In these situations, district attorneys view the defendant as the crime they committed rather than evaluate their actions through the lens of context.

“As a general matter, the closer the DA is socially to the people he is prosecuting—and given the nature of class and race in this country that proximity is tied very truly to race—they will better understand the situation in which that conduct happened,” Pfaff said.

Pfaff cautioned that finding progressive district attorneys to turn back the tide of mass incarceration would take years.

Plea-bargaining guidelines for prosecutors like those enacted in New Jersey and the formation of programs that aid prisoners in re-engaging with society after leaving prison are potential ways to combat mass incarceration, he added.


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