Professor John Pfaff was quoted in The Crime Report regarding mass incarceration and the U.S. prison population.
Fordham law professor John Pfaff argues in his counterintuitive new book, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (Basic Books), that the unbridled discretion of prosecuting attorneys has been largely overlooked as a key to America’s prison population boom.
In the second part of a Q&A with TCR Contributing Editor David J. Krajicek, Pfaff, who trained as an economist at the University of Chicago, argues that the punitive approach to violent offenders favored by tough-on-crime politicians and prosecutors needs re-thinking if we want to shrink the number of Americans behind bars.
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My findings come from a study of 34 states over the years 1994-2008. Crime falls over this time period, and serious crime falls by a lot. Arrests fall too. So fewer people are entering the criminal justice system, yet the number of felony cases filed in state court rises sharply. In my data, the probability that an arrest results in a felony charge almost doubles.
That’s the only change.
Once a charge is filed, the probability that someone is admitted to prison doesn’t change, nor does the time spent in prison if admitted. Prosecutors filing more felonies is the primary engine of prison growth.
I have no clear idea why this happened, because we have almost no data on prosecutors. But I have a few theories with some scattered empirical support. Right now, I think the most significant factor is staffing. Two big changes happened. First, between 1974 and 2008, the percent of counties with a full-time prosecutor rose from 45 percent to 85 percent. Second, from 1974 to 1990, as crime rose steeply, the number of assistant prosecutors nationwide rose by 3,000, from 17,000 to 20,000. But from 1990 to 2008, as crime fell dramatically, we hired 10,000 more assistant prosecutors, bringing the total to 30,000.
So rural and suburban counties professionalized, and urban areas massively ramped up staffing as crime fell. I find no evidence that an individual prosecutor is harsher in 2008 than in 1974; it’s just that we have so many more of them, and they need to prosecute to justify their jobs. We arrest 12 million people per year. There are always people for prosecutors to prosecute.
There are other possibilities too. Perhaps elected district attorneys have grander political ambitions (attorney general, governor, senator) and see toughness as a campaign tactic. Police may be making better arrests that are easier to prosecute, either because they are better trained or we have more DNA, video, and other compelling evidence. Maybe longer sentences have given prosecutors more leverage during the plea bargain process even if people aren’t actually serving more time in the end (because they take the plea, just faster than before).
Figuring out empirically how prosecutor’s offices operate is an area crying out for more research (and for more—much more—data).
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Eventually I came across a data-set on felony cases filed in state courts compiled by the National Center on State Courts. (It’s telling that my data on prosecutors came from the court system: Prosecutors provide almost no data to the public, but they can’t avoid the disclosure that comes once the case hits court.)
By this point I had already demonstrated that time served wasn’t driving prison growth, but I fully expected that the rise in admissions was being shaped strongly by a lot of factors—arrests, filings, and chance of admission. So I was completely surprised when I included the filing data, and the impact of everything else basically melted away. What made it particularly striking is that I wasn’t doing any fancy modeling…This was all simple algebra, and it showed that filings really were the major force. I realized right away that it had some major implications for how we think about prison growth.
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My concern is this: Prison is a remarkably costly and inefficient way to fight crime, so our goal should be to scale back the number of people who come into contact with prisons altogether—but that’s the number admitted, not the number serving on any given day. And what I discovered is that several states that cut their total prison population were admitting more people. So what looked like a success—“we have fewer people in prison”—was in many ways masking a failure, since more people and their families and communities were incurring the costs of exposure to incarceration.