Professor John Pfaff’s book on mass incarceration and prison reform was featured in The New York Review of Books.
But in Locked In, John Pfaff, a professor at Fordham Law School, makes a powerful case that the war on drugs has had very little effect on incarceration rates overall, or racial disparities in prison more specifically. In state prisons, which account for a large majority of the nation’s inmate population, only 16 percent of prisoners have been convicted of a drug crime.
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Longer prison sentences are not the cause of mass incarceration either, according to Pfaff’s research. This is surprising, because from the mid-1970s to the early 2000s, state and federal legislatures repeatedly increased the penalties for a wide variety of crimes. Maximum sentences are often extreme. In the District of Columbia, for example, a first-time conviction for selling a small amount of cocaine can lead to a thirty-year sentence; a second conviction can result in up to sixty years behind bars—in theory. But in practice, Pfaff argues, few defendants serve such lengthy sentences. Most serve between one and three years in prison. And that range has not changed significantly over the period in which incarceration rates quintupled.
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Instead, Pfaff maintains, overincarceration can be largely explained by the decisions of prosecutors. In recent decades, prosecutors have charged a larger proportion of those arrested with felonies rather than dropping charges or seeking only misdemeanor convictions, which at most lead to short jail sentences.
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But, as Pfaff notes, prosecutors have more power than they used to. During the last four decades, legislatures have enacted more and more overlapping criminal laws, affording prosecutors a wider range of possible charges. Over time, prosecutors have on average become more aggressive in their charging decisions. But as prosecutors operate in three thousand distinct counties, this is not a coordinated, top-down phenomenon.
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Prosecutors are “the most powerful actors in the criminal justice system,” Pfaff writes, yet they are largely unregulated. Police, by contrast, operate mostly in public, and they are constrained by the Fourth and Fifth Amendments and regular judicial oversight.
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The most effective way to reduce the rate of incarceration is to reduce admissions to prison in the first place. And in order to do that, according to Pfaff, we must change the practices that have led prosecutors to file felony charges against so many.
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Pfaff also recommends that state governments increase funding for public defenders, a reform that is warranted quite apart from the implications it has for incarceration rates. States have never adequately funded indigent criminal defense, even though it is a constitutional obligation.
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While Pfaff is right to concentrate on prosecutors, he may have underestimated the extent to which prosecutorial decisions are shaped by tough-on-crime legislation, and therefore the extent to which reducing statutory maximum penalties would help. Harsh criminal statutes deliver to prosecutors the message that if they want to succeed politically, it’s best to come down hard on crime.