Monday, May 29, 2017

Understanding Mass Incarceration in the United States

The phrase “American exceptionalism” is occasionally used in political discourse, usually to indicate an area in which the United States has deemed itself to be superior to other nations.  Unfortunately, there are a few areas in which our exceptionalism is not something in which to take pride.  One involves our propensity for throwing people in prison that has led to much discussion of “mass incarceration” as an issue.  Or rather, is it our propensity for committing crimes that is the issue?  John Pfaff, a professor at Fordham Law school, tries to address this question in his book Locked In: The True Causes of MassIncarceration—and How to Achieve Real Reform.  Pfaff argues that one must understand the problem before one can arrive at a solution, and that understanding has eluded us because we have not examined the data on incarceration carefully.

He begins with some basic facts.

“The statistics are as simple as they are shocking: the United States is home to 5 percent of the world’s population but 25 percent of its prisoners.  We have more total prisoners than any other country in the world, and we have the world’s highest incarceration rate, one that is four to eight times higher than those in other liberal democracies, including, Canada, England, and Germany.  Even repressive regimes like Russia and Cuba have fewer people behind bars and lower incarceration rates.”

“It wasn’t always like this.  Just forty years ago, in the 1970s, our incarceration rate was one-fifth what it is today.  It was comparable to that of most European countries, and it had been relatively stable all the way back to the mid-to late 1800s.  It was, in short, nothing out of the ordinary.”

It must be realized that crime is and has always been more prevalent than what shows up in crime statistics.  Illegal drug users are estimated to consist of at least 10 percent of the population—over 30 million people.  At any given time on an open highway, the majority of the drivers are exceeding the speed limit.  Enforcement of laws, therefore, is necessarily discretionary.  Someone decides how vigorously law breakers should be pursued and punished.  Pfaff argues that it is the attitude toward enforcement that has changed over the years and contributed significantly to what we refer to as mass incarceration.  Changes in laws and sentencing have received the most attention, but it has been the change in application of prosecutorial discretion that has driven increased incarceration.

Pfaff provides charts that tell a significant story.  Consider the history of crime rates (violent and property crime rates per 100,000 people).

Note the dramatic increase in crime rates beginning in the 1960s.  They would peak in the early 1990s at almost four times the rate of 1960.  Note also that the crime rates have been falling since the 1990s but they remain considerably higher than in 1960.

This chart provides the incarceration rate in inmates per 100,000 people from 1925 to 2014.

Although crimes began to increase in the 1960s, the incarceration rate didn’t begin to increase until the 1970s.  In fact, there was a dip in incarcerations just as crime began to increase.  This has been interpreted as an increase in leniency on the part of the justice system just as the public was becoming aware of widespread crime.  A tough-on-crime backlash would be an obvious response on the part of the public.  Significantly, incarceration continued to grow even as crime began to fall after around 1990, only leveling off and beginning to fall slightly in the past few years.

Neither the initial rise in crime nor its subsequent fall is well understood.  Pfaff does not dwell on possible causes of the decline, but does suggest that tough enforcement was not a prime reason.

“….recent experiences in many states make it clear that reducing prison populations need not lead to increases in crime.  Between 2010 and 2014, state prison populations dropped by 4 percent while crime rates declined by 10 percent—with crime falling in almost every state that scaled back incarceration.”

What is of most interest here is the interaction of the falling crime rate and the increasing rate of imprisonment.  Pfaff has concerns about the distraction caused by what he refers to as “the Standard Story.”  In that narrative, prison populations have been driven by the conviction of large numbers of non-violent drug users even though prisoners sentenced for drug-related offenses have never been much greater than about 20 percent of the prison population, and most of those were associated with crimes involving violence.  While reforming the handling of minor drug-related offenses is worthwhile and necessary, it will have little effect on prison populations.

“….a core claim of the Story, made perhaps most forcefully by Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Color-Blindness, is that our decision to lock up innumerable low-level drug offenders through the ‘war on drugs’ is primarily responsible for driving up our prison populations.  In reality, only about 16 percent of state prisoners are serving time on drug charges—and very few of them, perhaps only about 5 or 6 percent of that group, are both low level and nonviolent.  At the same time, more than half of all people in state prisons have been convicted of a violent crime.  A strategy based on decriminalizing drugs will thus disappoint—and disappoint significantly.  Yet we see little to no efforts to reform the treatment of people convicted of violent crimes.”

The assumption that harsher sentencing laws has lengthened prison stays and driven up the prison population is also inconsistent with the data.

“The claim isn’t exactly wrong: by international standards our sentences are long, and if people spent less time in prison, obviously prison populations would decline.  In practice, however, most people serve short stints in prison, on the order of one to three years, and there is not a lot of evidence that the time spent in prison has changed that much—not just over the 1990s, 2000s, and 2010s, but quite possibly over almost the entire prison boom.”

Pfaff recognizes that private firms, the “prison industrial complex,” have incentives to push for actions that would increase prison populations, but he believes there are public stakeholders who have greater influence in maintaining incarceration rates.

“Private spending and private lobbying, however, are not the real financial and political engines behind prison growth.  Public revenue and public-sector union lobbying are far more important.  As states and counties have become wealthier, they have spent more on corrections (and everything else), and reining in that spending is much harder to do than limiting private firms’ access to corrections contracts.  Similarly, the real political powers behind prison growth are the public officials who benefit from large prisons: the politicians in districts with prisons, along with the prison guards that staff them and the public sector unions who represent the guards.”

Understanding the incarceration issues is complicated by the fact that there is no national system.  There is a federal justice system, but it only provides a small percentage of the prison population.

“It is easy to talk about the federal system, because it is a single entity with nationwide reach.  However, it is also a relatively minor player in criminal justice.  About 87 percent of all prisoners are held in state systems.”

“Owing to various legal and constitutional restrictions….the federal system focuses much more heavily on drugs than state systems do (half of all federal prisoners are serving time for drug crimes, compared to 16 percent in the states).”

We have the appearance of state systems of justice, but in practice localities exercise their discretion in producing wildly different results.  It would be more accurate to say we have county systems of justice—and we have 3,144 counties.

“Punishment is highly localized in the United States, and state and county officials have tremendous discretion over who gets punished and how severely.  So while the US incarceration rate in 2014 was 498 per 100,000, states ranged from 169 per 100,000 in Maine to 818 per 100,000 in Louisiana.  Similarly, the US incarceration rate grew by 288 percent between 1978 and 2009 (its peak year), but the growth in individual states varied greatly: North Dakota and Mississippi, for example, experienced growth rates of 629 percent and 567 percent, respectively, while North Carolina saw a rise of only 85 percent.”

Policies differ from county to county within a state as well.  Rural areas generally have less crime but are more apt to demand punishment.

“Take New York, a state that has experienced one of the longest sustained decarcerations in recent history, with prison populations falling by about 25 percent since 1999.  This looks like a state success story, but the entire decline between 2000 and 2011 took place in just twelve of the state’s sixty-two counties, with the other fifty counties adding inmates to state prisons during that time.”

“A study of California made a similar finding, showing that differences in the number of people that counties send to state prison have little to do with differences in those counties’ crime rates and more to do with county politics.  High-crime but liberal areas like Los Angeles and San Francisco send relatively few people to prison, given their crime rates, while more rural, more conservative counties are inherently more punitive.”

And even within counties justice may not be administered uniformly.

“Urban prosecutors are elected at the county level, where political power is concentrated in the wealthier, whiter suburbs, while crimes disproportionately occur in the poorer urban cores with higher populations of people of color.  This segregation of costs and benefits is a racial story more than anything else.  Identifying prosecutorial aggressiveness as a driver of growth [in incarceration] does not necessarily require much consideration of race and punishment—but correcting it does.”

Pfaff disagrees with Michelle Alexander on whether or not the war on drugs is responsible for the surge in incarceration.  He does agree with her on the fact that blacks and Hispanics are disproportionately targeted in the enforcement of drug laws.

“As in so many areas of criminal justice, there is a clear racial imbalance when it comes to those who are in prison for drug crimes.  The incarceration rates for drug offenses are 34 per 100,000 for non-Hispanic whites, 74 per 100,000 for Hispanics, and 193 per 100,000 for blacks.”

There is a racial imbalance as well within the general prison population, but not nearly as great as that for those convicted on drug charges.

“In 2015, the United States was 62 percent non-Hispanic white, 13 percent black, and 18 percent Hispanic.  Our state prisons, meanwhile, were 35 percent non-Hispanic white, 38 percent black, and 21 percent Hispanic.”

It is necessary to determine the cause of the drug conviction disparity.  Do blacks commit more drug crimes than whites, are they more easily caught (whites are more likely to exchange drugs in a home, while blacks and Hispanics trade more on the street), or are they targeted for enforcement as an instance of racial bias?  According to Pfaff, definitive evidence is surprisingly meager given the importance of the issue. 

“The little evidence that we do have points to enforcement choices as important factors in the racial disparities in imprisonment rates.  One of the only studies on the topic looked at results from a long running survey of 9,000 people who were twelve to sixteen years old when the survey started in 1997 (and twenty-four to twenty-eight when the last wave of the survey available to the authors was conducted in 2009.  It found that non-Hispanic whites actually sold drugs at somewhat greater rates than blacks or Hispanics, that the white/Hispanic disparity was driven primarily by the class-based public outdoor market problem, and that the white/black disparity appeared to be much more the product of deeper enforcement bias.”

Michelle Alexander did an excellent job of demonstrating how the “drug problem” was engineered to be conceived of as the “black drug problem.”  A real bias in enforcement appears to exist, and the way to reform leads to constraints on discretion in enforcement.

To address the growth in incarceration during the period of dropping crime rates, all evidence points to prosecutors and the unhealthy incentives to which they are subjected.  To begin with, most convictions occur at the local level, whereas prisons are generally funded at the state level.  Creating convicts costs money to the state, but not to the government that pays the salary of the prosecutor.  There is then no negative feedback to dampen the enthusiasm of over-active prosecutors.

“Prosecutors get all the tough-on-crime political benefit of sending someone to prison, but the costs of the incarceration are foisted onto the state as a whole….That the alternatives—misdemeanor probation or jail time—are paid for by the county only exacerbates the problem.  For the prosecutor, leniency is actually more expensive than severity, and severity is practically free.”

Prosecutors are mostly chosen by election, with only four states directing that prosecutors be appointed.  The desire to be reelected generally means that a tough-on-crime persona and a healthy record of convictions are necessary to display to the voting public. 

Some mechanism has also led to an unexpected rise in the number of prosecutors even though the number of crimes and the number of arrests have fallen.

“….the number of line prosecutors (those who actually try cases) has grown significantly over the past forty years, but in a somewhat peculiar way….Between 1970 and 1990, violent crime rates rose by 100 percent, property crime rates by 40 percent, and the number of line prosecutors by 17 percent.  From 1990 to 2007, violent and property crime rates both fell by 35 percent, but the number of line prosecutors rose by 50 percent—a faster rate of growth than during the crime boom.”

It seems that prosecutors will do what prosecutors do, and state and federal laws and directives have armed them with a numerous tools that can be used to encourage a charged defendant to plead guilty and forego a trial, including underfunding defense for indigent defendants.

“Nearly 95 percent of the cases that prosecutors decide to prosecute end up with the defendant pleading guilty.”

“Prosecutors’ jobs may be almost unmanageable without a substantial degree of discretion.  At the same time, discretion always raises concerns, and prosecutors are the only actors in the criminal justice system who have successfully held on to almost all the discretionary power accorded to them.  Fears of racially motivated behavior and excessive leniency, for instance, have led to substantial restrictions on judges and parole boards, and similar fears of racial bias and misconduct have led to (lesser) restrictions on police as well.”

“There is no real reason for prosecutors alone to avoid regulation.”

This has provided the essentials of Pfaff’s description of our judicial system and how it has led to excessive rates of imprisonment.  The final third of his book examines steps that can be taken to correct identified problems.  Unfortunately, there is no magic bullet and progress will only come after a number of tweaks to the system.  Perhaps the most difficult part arises because the prison population is dominated by those convicted of a violent crime.  It will not be easy to convince people that there is a better way to treat a person with a violent crime record than by keeping him in prison as long as possible.  Pfaff can make that argument, but he realizes it will be difficult to win it.

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