Last week, Leon Neyfakh of Slate interviewed John Pfaff, a law professor at Fordham who has spent the last several years working to understand exactly why incarceration levels in the U.S. are so high. As more and more activists and policymakers on the right and the left have grown alarmed by mass incarceration and its impact on crime, family life, and much else, a few popular theories have emerged about exactly why we Americans imprison so many of our fellow citizens: we put people in prison for too long; our prisons are full of low-level drug offenders; and we’re locking people up even though doing so has no real effect on crime levels. Back in 2009, Pfaff summarized some of his more provocative findings for a lay audience. In short, he’s found that the time served by the median prisoner is in fact very short, and the real issue is that we put large numbers of people in prison for a short time; even if every low-level drug offender were released from prison, the U.S. would still top the charts among market democracies when it comes to putting people in prison (the prison population would drop from 1.6 million to 1.3 million, a number far higher than the 300,000 or so in prison in the 1970s); and there is indeed good reason to believe that incarceration has reduced crime levels, though at far higher cost than, say, investing in preventing crime from occurring in the first place by, say, hiring more police officers. That is, many critics of the incarceration boom are simply ill-informed. This isn’t to say that there is anything wrong with reducing prison sentences that are egregiously or inappropriately wrong, or that we shouldn’t reform our drug policies. Either policy effort could be justified on humanitarian or libertarian grounds. But what Pfaff is telling us is that getting rid of, say, mandatory minimum sentences or legalizing various narcotics won’t solve the mass incarceration problem.
The observation of Pfaff’s that I found most fascinating is that if we combine the number of people we commit to mental institutions with the number we send to prison, we see a great deal of continuity:
[I]f we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s. In other words, we’re not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. Viewed through this lens, what seems remarkable is not the current era of mass incarceration but the 1960s and ’70s, during which we emptied the hospitals without filling the prisons.
It is indeed remarkable, particularly when we consider that the deinstitutionalization of the 1960s and 1970s coincided with, and arguably contributed to, a crisis of disorder in many big U.S. cities, the legacy of which still persists. In Pfaff’s interview with Neyfakh, he emphasizes the role of local prosecutors in the persistence of high incarceration levels. He observes that while rising incarceration levels made sense from the 1960s to the late 1980s, as violent crime exploded, crime rates have been falling since 1991, yet prison populations kept going up from 1991 until about 2010. Pfaff’s theory is that the the drivers of high prison populations in this more recent era have been local prosecutors responding to political imperatives. If he’s right, it seems that big top-down criminal justice reforms matter less than getting prosecutors to embrace a new, less punitive approach — or perhaps, as Stephanos Bibas and Richard Bierschbach have recommended in National Review, getting cities to embrace community courts to deal with low-level offenders. They cite the example of Red Hook, Brooklyn, a once-dangerous neighborhood that has had considerable success with its local community court. Recidivism for those tried by community courts is 20 percent lower than those tried in traditional courts, which seems like a pretty solid reason to give the Red Hook model a closer look.