John Pfaff’s book Locked In was featured in a Los Angeles Review Of Books article about mass incarceration in the United States.
But Obama has it wrong, according to Locked In, a new critique of the causes and myths of mass incarceration. In the book, Pfaff, a professor at Fordham University School of Law, argues that reformers’ emphasis on drug crimes, while laudable in principle, has only distracted from the real drivers of the United States’s prison boom.
“[R]eformers still don’t understand the root causes of mass incarceration,” he writes, “so many reforms will be ineffective, if not outright failures.”
While drug offenders make up almost half of the federal prison system and were responsible for a large increase in the federal prison boom that began in the 1970s, most (about 87 percent) of the prisoners in the United States are held within the state system. Here only about 16 percent of the population are locked up for drug charges, and about six percent for nonviolent drug offenses, Pfaff points out. If you release every single person charged with these crimes, you still do not alter the fundamental fact of mass incarceration.
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Pfaff seeks a correction to what he considers a myth behind Alexander’s and Obama’s charges. “The movement against mass incarceration had no option but to start where it did, focusing on drugs and other nonviolent crimes,” Pfaff writes,
That movement is nearly a decade old now, however, and it is important to pause and acknowledge that the gains have not been great […] Total prison populations outside of California are down by less than 2 percent since 2010 (and by barely 4 percent when we include California).
If not drugs, then, where should reformers focus their efforts? The answers are both politically toxic and likely an impossible sell to an electorate who punish at the polls for perceived increases in crime. The real issue, Pfaff says, is that most of the people locked up — more than half in the state system — are there for violent crimes. This group also explains two-thirds of the growth in prison populations since 1990. “Until we accept that meaningful prison reform means changing how we punish violent crimes, true reform will not be possible,” he writes.
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This is Pfaff’s most counterintuitive finding, with profound implications for how to tackle reform. In the early 1990s, violent crime began to fall dramatically; since 1991, it has fallen by 51 percent, according to the Brennan Center for Justice. But prison expansion continued apace. And most of this was because of prosecutors pushing for felony charges with increasing frequency, according to Pfaff. Holding all other factors constant, he shows that the chance of an arrestee being charged with a felony doubled after 1994, which was the driver of an almost 40 percent increase in the US prison population between 1994 and 1998. “While arrests fell, the number of felony cases rose, and steeply,” he explains. “Fewer and fewer people were entering the criminal justice system, but more and more were facing the risk of felony conviction — and thus prison.” Many of these cases are decided in backroom plea bargains, where clients are inadequately represented by time poor and underfunded public lawyers. Short of increased funding for indigent defense, only a change in attitude among prosecutors and the public who elect them will reverse this trend of filing felony charges.
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The book, however, offers another, more sanguine, reading of this election’s implications for prison reform. Despite Trump’s tough on crime rhetoric, Pfaff sees a series of micro-victories for prison reform across the country. Most reform decisions are controlled not by the federal government, but by states, counties, and districts. The same forces that prevented Obama from achieving widespread decarceration will also prevent Trump from doubling down on incarceration unless local politics consents, so goes the argument. And many of the same people who voted for Trump simultaneously supported prison reform at the local level. Oklahoma, which Pfaff cites as an example, gave 65.3 percent of its vote to Trump. On the same day, the state passed State Questions 780 and 781, measures reclassifying certain nonviolent drug offenses and petty thefts as misdemeanors and redirecting savings to mental health and drug treatment instead of prison. Yet, to bring Pfaff’s argument full circle, measures such as this might curb unfair drug sentencing, but will not lead to significant changes in incarceration patterns.
In the end, success by Pfaff’s metrics depends on what reformers, and the public, actually want. Is the aim to bring down the prison population as an end in and of itself or only to stop sending people to prison for misdemeanors and nonviolent crimes? Pfaff’s argument assumes that the public’s qualm with mass incarceration should be with the absolute number of people locked up.
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“It may be that some reforms are justifiable even if they do lead to more crime,” Pfaff writes,
It’s true that crime is costly — but so, too, is punishment, especially prison. The real costs are much higher than the $80 billion we spend each year on prisons and jails: they include a host of financial, physical, emotional, and social costs to inmates, their families and communities. Maybe reducing these costs justifies some rises in crime.
This is the book’s most difficult sell. Pfaff admits that he is doubtful leaders will embrace the argument in the short run. It is less politically risky for people to be kept in prison for too long than released too early — or not sent to prison in the first place. But whether the zeitgeist on this issue shifts or not, to those asking why the United States imprisons so many of its people, the answers and hints of possible reform are here. Changing this reality will need much more than emptying prisons of drug offenders.
