Magazine | February 20, 2017, Issue

Beyond Getting Tough

Locked In: The True Causes of Mass Incarceration -- and How to Achieve Real Reform by John Pfaff (Basic, 272 pp., $27.99)

Sir William Blackstone famously decreed that it would be better for ten guilty men to escape justice than for one innocent to suffer at the hands of the law. In theory, it seems like an admirable principle. If mere men are to wield the sword of justice, they should do so cautiously. Unfortunately, that’s not the reality of America’s criminal-justice system. This is just one of the troubling realities that emerge from John Pfaff’s new book, Locked In. It is a valuable contribution to the ongoing discussion about justice reform.

Locked In is an interesting example of a book that is better than its central argument. Pfaff, a Fordham professor, supports the growing consensus that America’s prison population is too large. He’s dissatisfied, though, with current reformers. He thinks they’re chasing rabbits when bigger game is afoot. Locked In aims to correct this error by highlighting the true causes of over-incarceration.

As a corrective to a skewed dialectic, the book isn’t terribly successful. It’s obvious that Pfaff is a numbers man, not a narrative man; he doesn’t have a subtle understanding of the political and social trends that have shaped the reform movement. Several chapters of the book are spent critiquing a “Standard Story” about mass incarceration that he never actually tells us, so the reader must do the work of piecing together the book’s real thesis: that we should worry less about drug laws, sentencing reform, and private prisons, and direct our energies instead toward curbing prosecutorial power. It’s an interesting suggestion. But why can’t he just state that view, rather than shadow-boxing “common opinion” for 200 pages? Readers looking to sharpen their grasp of the political conversation would do better to consult Steven Teles and David Dagan’s 2016 book, Prison Break.

Looking past the forest, though, we can see that Locked In is filled with interesting trees. Packed with charts and figures, it’s candy to the numbers-loving brain, but even those who weary of statistics are sure to find some interesting tidbits. Pfaff explains why the War on Drugs probably isn’t the main cause of mass incarceration. (Non-violent drug criminals represent just a small fraction of our total inmate population, and therefore releasing them all wouldn’t have a significant impact on total numbers.) He tells us why sentencing reform is another dog that’s unlikely to bark. (Though statutes have grown more punitive, there hasn’t been much change in recent decades in the average time served. We really aren’t, as the cliché suggests, locking people up and throwing away the key.) Peppered throughout are fascinating details about our justice system that you probably won’t find elsewhere. (Did you know that geriatric crime has spiked over the past few decades? In state prisons, the over-55 cohort has more than tripled since the early 1990s.)

It’s refreshing that Pfaff is willing to tweak the orthodoxies of both Left and Right. Conservatives will be suspicious of his claim that unconscious racial bias is likely a problem for many prosecutors. Liberals will find themselves frowning, though, as he explains why public prisons, just as much as private ones, are beholden to crass economic realities and self-seeking interest groups. In these awkward spaces, we find the book’s real strength. We should want our policy to be influenced by men like Pfaff, who are tone-deaf to narrative but obsessive in their fact-checking.

At the same time, narrative people do have their charms. In his eagerness to demolish his laundry list of common errors, Pfaff fails to appreciate how the overall trajectory of current reform efforts is actually quite helpful to his own larger goals. Reform-minded groups (such as the Charles Koch Institute and Texas’s Right on Crime unit) don’t just lobby for particular bits of legislation. They are working to change America’s criminal-justice paradigms, moving beyond an anachronistic debate about toughness and leniency to embrace data-driven solutions that are less costly (in both fiscal and human terms) for all concerned. This seems like the sort of project that a number-cruncher like Pfaff ought to love.

In fact, this approach might be especially relevant when it comes to his own particular bugaboo: prosecutorial power. Pfaff is convinced that aggressive prosecution is the biggest cause of over-incarceration. His argument here is compelling. He notes that while incarceration rates began to climb in the 1980s as a response to rising crime, those trend lines continued through the Nineties, even though crime was steadily falling. Why did that happen? Examining all the relevant variables (crime reports, arrests, charges filed, and convictions), Pfaff found himself looking squarely at the prosecutor’s office. As less crime was reported, arrests dropped proportionately, and among those who were charged with a crime, conviction rates held steady. But prisons continued to fill, because prosecutors were filing felony charges against ever-growing percentages of their dwindling arrestees.

Pfaff doesn’t pretend to know exactly why this happened. The tough-on-crime message was certainly popular in the Nineties, but, as he points out, the public strongly favors incumbents in criminal justice. Prosecutors probably didn’t need to get more punitive just to keep their jobs. It seems far more likely that the prosecutorial ethos was simply shaped by tough-on-crime ideals in a particularly deep way. Prosecutors grew to see themselves first and foremost as the ones entrusted with locking up the bad guys. Blackstone’s high-minded principle may have gotten lost in the shuffle to some extent, and, because convicted felons are turned over to the care of the state, the prosecutor’s office felt little pressure to conserve resources by saving prison beds for the truly dangerous. Sending local miscreants upstate was plausibly beneficial to the county even if some of them weren’t that great of a threat.

This is the point at which Pfaff starts to despair. He knows that prosecutors are well insulated from reform, enjoying a great deal of discretion and minimal oversight. Devoting more resources to the defense of indigent arrestees might help to restore a little balance to the system. Niggling adjustments to statutes and sentencing guidelines probably won’t. A capable prosecutor knows 50 different ways to skin his proverbial cat, so without changing his mindset, it will be difficult to change much else.

Here’s where Pfaff’s rabbit-chasing reformers might be more important than he imagines. He sees them as small-minded tinkerers nibbling at the edges of a much larger problem. Might it not be more accurate to view them as trailblazers, demonstrating to skeptical parties (often including prosecutors) that heavily punitive practices are often unnecessary and unfitting? Every justice reformer loves to talk about “data-driven solutions,” which is just a wonky way of saying that we should look for methods that work. Pfaff should be in favor of this. So should everyone else. Small-seeming reform projects could help precipitate a new era for criminal justice in which the risk an alleged offender poses to the community is more carefully balanced against other communal and individual goods.

Americans have spent decades arguing about whether the poor should be served with lavish benefits or punitive laws. The resulting compromises have been moderately successful at stopping crime but wildly unsuccessful at stopping the social breakdown that has ravaged so many American communities. Maybe it’s time to stop arguing about who broke America. Locked In gives us some ideas for how we might fix it.

– Rachel Lu is a Robert Novak Journalism Fellow.

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