Professor John Pfaff was quoted in an article in Washington Monthly regarding criminal justice reform.
This goes against the instinct of many Americans that all policy emanates from Washington. Indeed, when it comes to crime policy, many instincts—even among people who care—turn out to be wrong. As John Pfaff, a law professor and economist at Fordham University, puts it in an important new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, liberals have been telling and retelling a “Standard Story” about the causes of incarceration: the war on drugs, private prisons, and harsher sentences. But when Pfaff looked at the data, he found that the Standard Story was wrong.
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President Obama illustrated the myth’s staying power in a speech last year, when he said, “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high.” In fact, while drug convictions account for about half of federal prisoners, they represent only 16 percent of the state prison population, which is six times as large. More than half of state inmates are imprisoned for violent offenses, and from 1980 to 2009, convictions for violent crimes contributed to 60 percent of the growth in the state prison population. (It’s conceivable that the war on drugs indirectly fueled the rise in imprisonment for violent offenses, but Pfaff, looking at the data, finds it unlikely. One reason: illegal drug sales are not a precondition for urban gang violence.)
That doesn’t make the war on drugs a good thing. It just means that if the goal is to stop being by far the world leader in imprisonment, even legalizing all drugs wouldn’t be enough. And emphasizing the distinction between nonviolent and violent offenders, as much of the “smart on crime” rhetoric does, could make it even harder to convince the public to go easier on the latter group. Pfaff points out that some legislation easing penalties for low-level crimes simultaneously imposes harsher penalties for the “bad guys.” (One way Trump could do indirect damage is by perpetuating the lie that violent crime is at an all-time high, as he did during the campaign.)
But wait: don’t we want violent criminals behind bars? Sure, but that principle only goes so far. We want safe roads, but we don’t lower the speed limit to zero. Incarceration imposes terrible social and economic costs on inmates, their families, and their communities. The question is one of balance. It’s difficult, if not impossible, to define precisely the “right” incarceration rate, but the current situation is not even close. Pfaff, surveying various studies, concludes that rising imprisonment in the 1970s and ’80s—when the prison population was actually low relative to the crime rate—helped stem the rise in crime, but that today, the return on added imprisonment is close to zero.
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“Yet our policies,” Pfaff writes, “get this completely backward.” For most crimes, the clearance rate—the percentage of crimes that result in police making an arrest—has stayed the same or even declined since the 1960s. In 2014, the clearance rate for murder was 65 percent, meaning more than one in three murders—murders!—go unsolved in the United States. The numbers for other crimes are even worse: 39 percent for rape, 30 percent for robbery, 14 percent for burglary. If legislators are serious about fighting crime, they should be focusing relentlessly on boosting police budgets. Instead, they pass symbolically satisfying laws like “three strikes”—which are doubly foolish because most young men age out of violent behavior pretty quickly. Most “violent offenders,” a term Pfaff would like to retire, “are not violent people; they are simply going through a violent phase.” Yet many are locked up for years past the point when they are likely to pose a continued risk of violence.
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That the inevitable has not occurred is the most startling part of Pfaff’s argument. It isn’t that people are spending more time in prison than they used to; it’s that more people are getting sent to prison in the first place. If inmates were serving more time on average, then the number of prison admissions would be growing faster than the number of releases; more people would be going in every year than coming out. But since the 1970s, those numbers have risen pretty much in lockstep. In fact, most people who go to prison don’t spend as much time there as you might think—even violent offenders usually get out in two or three years. We’ve all heard the stories about people serving life sentences under three-strikes laws for petty theft, but, as Pfaff points out, they make the news precisely because they’re rare. Between 2000 and 2010, as the total prison population grew by just over 200,000, the average time served for many crime categories, including violent crimes, actually appears to have declined slightly.
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Think of a district attorney as a customer at a diner and the list of criminal statutes as the menu. The harsh sentences are the shrimp scampi—they’re available, but hardly anyone ever orders them. In 1973, for instance, New York State passed the notoriously draconian Rockefeller drug laws. But, Pfaff points out, drug sentences didn’t actually begin to rise in New York until 1984, when the crack epidemic hit. Why? Because up to that point, prosecutors simply didn’t charge defendants under the laws. The same thing appears to be true with respect to the wave of tougher sentences passed in the 1980s and ’90s.
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What prosecutors have done is get more aggressive about whether to charge people with felonies in the first place. This, Pfaff shows, is the real driver of rising incarceration rates. Pfaff looked at data collected by the National Center for State Courts logging the number of felony cases filed from 1994 to 2008. Here’s what he found: over that period, as crime and arrest rates were declining steadily, the chance that any given arrest would lead to a felony charge doubled. How prosecutors make that one decision—whether to charge a defendant with a felony—explains almost all of the growth in incarceration.
Of course, in solving one mystery—the specific cause of prison growth since at least the 1990s—Pfaff has raised an even more difficult one: Why did prosecutors grow more willing to bring felony charges, even as crime rates plummeted? Even by the standards of the criminal justice system, where comprehensive data is hard to find, prosecutors are a black box; their decisions are subject to almost no oversight. Maybe the availability of harsher sentences spurs them to file more felony charges, even if they don’t send people away for longer; maybe politically ambitious district attorneys have gotten more worried about looking soft on crime. There’s no way to know from the existing data.
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Though he is better at diagnosis than prescription, Pfaff has some suggestions for broader reforms, like plea bargaining guidelines that force prosecutors to offer less punitive deals; rezoning district attorneys’ offices so that suburban voters don’t get to elect urban prosecutors; and, provocatively, relying more on private prisons, but paying them based on how prisoners perform after they’re released. And while prison growth is mainly a state issue, there is one simple thing the federal government could do to make a huge impact: give states money to fund indigent defense. Having a good defense lawyer is one of the most powerful ways to check the power of a prosecutor, and a $4.5 billion annual grant would double the amount states currently spend on public defenders, who represent the overwhelming majority of defendants.
But legislative reforms will only go so far. As Pfaff puts it, “[C]hanging the attitudes of prosecutors, not their options, will likely have the biggest impact.” The lesson from November 8 is that the best way to change attitudes may be to change prosecutors. Voting out an incumbent is no guarantee of success, however—it depends, of course, on who the replacement is. Realistically, reformers won’t be able to monitor every charging decision the new district attorney makes; they’ll have to elect people they can trust. “This means that in the long run, reform groups will have to focus not just on getting out the vote, but on grooming people to run in these races,” Pfaff writes.
