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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