Politics & Policy

We’ve Been Explaining Mass Incarceration in All the Wrong Ways

Guard tower at San Quentin State Prison in California. (Reuters photo: Stephen Lam)
That’s the case law professor and economist John Pfaff makes in a provocative new book.

Ask someone to explain the dramatic rise in the United States prison population over the past four decades and you are likely to hear one of three responses: It’s happened because of the War on Drugs; because prisoners are serving longer sentences owing to minimum-mandatory sentencing laws and the like; or because of the privatization of prisons and the rise of the prison-industrial complex.

Wrong, wrong, and wrong, writes John Pfaff, an economist and professor of law at Fordham School of Law, in his provocative new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Pfaff critiques what he calls the “Standard Story” put forth by Michelle Alexander (author of the New York Times bestseller The New Jim Crow) and other reformers and argues that if Americans are serious about decarceration, instead of focusing our attention on drugs, sentencing, or privatization, we need to shift our approach toward violent crime. The Standard Story, he writes, “consistently puts the spotlight on statistics and events that are shocking but, in the grand scheme of things, not truly important for solving the problems we face.”

Pfaff is a numbers man, and his book relies heavily on data — and little on anecdotal evidence. His case against the Standard Story is compelling. He writes that releasing every single drug offender would reduce the prison population by a mere 16 percent; that prisoners are serving an average of one- to three-year sentences rather than the long sentences many think; and that it is the incentives written into private-prison contracts that are the problem, not privatization itself.

So, what are the “true causes” of the 500 percent increase in the prison population we have seen since 1970? Pfaff attributes the dramatic rise to three primary factors: a rise in crime that began around 1960 (but has since fallen); more convictions, particularly for felonies, owing to prosecutorial aggressiveness, which results in rising prison admissions; and a broken political system (i.e., politicians are incentivized to be “tough on crime,” and public-sector lobbying that protects the interests of prison guards and other key players makes it hard to close down prisons). Until we begin responding to these factors, Pfaff argues, reforms are going to “yield disappointing results.” For example, a number of states have passed legislation that softens penalties for non-violent offenders while harshening penalties for violent offenders. As a decarceration policy, this does not work — and may actually hamper reform — if it is violent offenders, not nonviolent offenders, that account for the majority of the bloated prison population (and according to the data Pfaff cites, it is).

The strength of Pfaff’s book is its emphasis on cost-benefit analysis. The United States spends approximately $80 billion on prisons and jails each year. Pfaff notes that this does not account for many of the real costs of incarceration, such as the “financial, physical, emotional, and social costs to inmates, their families, and their communities.” To law-and-order types, this point will likely not resonate. But retribution is not the sole purpose of incarceration. We must also consider at what point incarceration yields diminishing returns on the purposes it’s supposed to achieve: incapacitation, deterrence, and rehabilitation. It can be risky for politicians to think this way when the public is what Pfaff describes as “low-information, high salience,” which means that voters do not pay attention to the more mundane day-to-day cases that reflect criminal-justice policies and instead vote based on shocking events, such as the Willie Horton case made famous during the Bush–Dukakis presidential race of 1988. The problem with the way the public often responds to crime, writes, Pfaff, is that “it’s quite likely that being less harsh toward people who commit violent crimes might actually make us safer.” As voters, we should be considering the question: At what point does incarceration hurt our communities more than help them?

Pfaff also challenges readers to consider what our “optimal level of incarceration” should be and whether “some reforms are justifiable even if they lead to more crime.” This is surely an unpopular view, but as Pfaff pointedly puts it, we do accept a certain level of crime already, as we do not allocate all of our resources toward policing and crime prevention. “The criticisms over ‘mass incarceration,’” he writes, “essentially boil down to claims that we have too many people in prison, although we don’t really know how many too many, and that we should reduce that number, although we don’t really know what the new goal should be.” Pfaff does not offer a goal, but does say that “the evidence we have strongly suggests that prison populations are simply too large, and cutting them back is sound policy.”

As voters, we should be considering the question: At what point does incarceration hurt our communities more than help them?

How do we achieve “real reform,” then? Pfaff offers several suggestions. First, he says, we need to focus on the local. Ninety-seven percent of prisoners are held in state prisons. Instead of telling a national story about incarceration, we should be telling 3,144 different stories—one for each county in the United States. Second, we need to collect better data. That would give us a “clearer sense of what is happening and why” and empower us to come up with better solutions.

Pfaff also offers a number of more-specific solutions to the problems he outlines. To address the problem of prosecutorial aggressiveness, he suggests developing guidebooks for prosecutors, realignment policies (which require counties rather than states to incarcerate low-level offenders), threat mitigation (restricting the kinds of threats prosecutors can make during plea bargaining), and better-funded public defense. Some of Pfaff’s critique of prosecutors makes me wary — he refers to the prosecutor as the “man behind the curtain,” and more oversight could devolve into more red tape in practice — but for the most part, his proposals are quite fair-minded. He concedes that prosecutors need a certain level of discretion to be able to do their jobs well and recognizes that they respond to incentives just like everyone else. Pfaff’s point on indigent defense, which is poorly funded in the majority of states, is perhaps his most important. He is right to say that in order for an adversarial system to work, the system does need to be “in fact adversarial” and that the Sixth Amendment right to counsel needs to be better protected.

To address violent crime, Pfaff suggests upping policing (increasing the certainty of getting caught for a crime versus the severity of getting punished for one), cutting the time served for those who have committed violent crimes by using a statistical model that predicts the likelihood of a future offense, and reducing the number of people in prison for low-level violent crimes. He also, surprisingly, suggests that it might be good policy to rely on private prisons more than we do, changing the incentives in their contracts to encourage rehabilitation and decarceration. Currently, private prisons profit when a released prisoner recidivates. What if, instead, private prisons profited when a released prisoner was able to reintegrate into society?

In short, Pfaff challenges readers to consider the trade-offs between safety and enforcement and the real costs and benefits to incarcerating the 2 million people we do in the United States today. Packed with information and statistics, with criticisms and solutions, Locked In is a fresh, welcome contribution to the criminal-justice debate.

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