mass incarceration
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On the same day that they narrowly chose Donald Trump over Hillary Clinton in November, voters in Nueces County, Texas, also elected Democrat Mark Gonzalez—a Mexican American defense attorney with “NOT GUILTY” tattooed across his chest—to be district attorney. Gonzalez had easily defeated the incumbent in the primary in March. Curious to hear about his plans as the county’s new chief prosecutor, I called him the week after the general election. He had ideas for policy reforms—for instance, he plans to give defense attorneys open access to all files concerning their clients’ cases—but he seemed most eager to talk about something harder to pin down: changing the culture of the office.

“We want to bring back the humanitarian perspective,” he said. “There’s a current culture where they think everyone accused is a scumbag, and that is not the case. These guys aren’t all scum. Even if some of them are scum, their moms aren’t. Their dads aren’t. Their brothers and sisters and wives, who most of these guys have, aren’t. So I’ll bring a little bit of humanity to that office.” 

The federal government just doesn’t have much power over prison populations: the vast majority of incarcerated people are locked in state, not federal, prisons, for violating state, not federal, laws.

Gonzalez is one of at least ten criminal justice reform candidates who won local races for district attorney, including in Houston, Chicago, and even Birmingham, Alabama. Several candidates, though not Gonzalez, were backed by the liberal billionaire George Soros. Some owed their victories to incumbent scandals; still, they proved that it’s possible to campaign and win on a promise to be less punitive.

District attorney elections have only recently emerged as a focus of the criminal justice reform movement, spurred in part by outrage over the failure of prosecutors to bring charges against police for killing unarmed black men. But district attorneys (sometimes known by other titles, like county prosecutor or state’s attorney) have control over far more than prosecuting cops. The phrase “criminal justice reform” encompasses many ideas, but at its heart is the goal of ending mass incarceration. The U.S. prison population has risen meteorically since the late 1970s, only recently stabilizing, even though crime has fallen dramatically since the early 1990s. America has easily the highest incarceration rate in the world: 716 of every 100,000 residents are locked up, according to the most recent statistics, which comes to about 2.3 million people in prison or jail any given day. (Compare that to 118 of every 100,000 Canadians.) We have one-twentieth of the world’s population but one-quarter of its prisoners. Black and Hispanic people, about a third of the U.S. population, make up nearly 60 percent of prison inmates.

While criminal justice reform has recently become a surprisingly bipartisan issue, the election of Donald Trump—who plans to appoint as chief law enforcement officer Alabama Senator Jeff Sessions, who was blocked from a federal judgeship in the 1980s for, basically, being too racist—looks like a major setback. A BuzzFeed article published in the week after the election captured this feeling with the headline “The Election Might Have Killed Criminal Justice Reform.”

Hardly. It’s true that the election spells the demise of the bipartisan criminal justice Senate bill, and a Sessions-led Department of Justice could be disastrous in many ways. But the election of Donald Trump may end up having very little effect on mass incarceration. The federal government just doesn’t have much power over prison populations: the vast majority of incarcerated people are locked in state, not federal, prisons, for violating state, not federal, laws.

This goes against the instinct of many Americans that all policy emanates from Washington. Indeed, when it comes to crime policy, many instincts—even among people who care—turn out to be wrong. As John Pfaff, a law professor and economist at Fordham University, puts it in an important new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, liberals have been telling and retelling a “Standard Story” about the causes of incarceration: the war on drugs, private prisons, and harsher sentences. But when Pfaff looked at the data, he found that the Standard Story was wrong.

Start with the war on drugs. The most tenacious progressive myth about American prison growth is the idea that our prisons are packed with nonviolent drug offenders. Thus Michelle Alexander, whose 2010 book The New Jim Crow did more than any other to raise awareness of mass incarceration, could write, “the uncomfortable reality is that arrests and convictions for drug offenses—not violent crime—have propelled mass incarceration.” President Obama illustrated the myth’s staying power in a speech last year, when he said, “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high.” In fact, while drug convictions account for about half of federal prisoners, they represent only 16 percent of the state prison population, which is six times as large. More than half of state inmates are imprisoned for violent offenses, and from 1980 to 2009, convictions for violent crimes contributed to 60 percent of the growth in the state prison population. (It’s conceivable that the war on drugs indirectly fueled the rise in imprisonment for violent offenses, but Pfaff, looking at the data, finds it unlikely. One reason: illegal drug sales are not a precondition for urban gang violence.)

That doesn’t make the war on drugs a good thing. It just means that if the goal is to stop being by far the world leader in imprisonment, even legalizing all drugs wouldn’t be enough. And emphasizing the distinction between nonviolent and violent offenders, as much of the “smart on crime” rhetoric does, could make it even harder to convince the public to go easier on the latter group. Pfaff points out that some legislation easing penalties for low-level crimes simultaneously imposes harsher penalties for the “bad guys.” (One way Trump could do indirect damage is by perpetuating the lie that violent crime is at an all-time high, as he did during the campaign.)

But wait: don’t we want violent criminals behind bars? Sure, but that principle only goes so far. We want safe roads, but we don’t lower the speed limit to zero. Incarceration imposes terrible social and economic costs on inmates, their families, and their communities. The question is one of balance. It’s difficult, if not impossible, to define precisely the “right” incarceration rate, but the current situation is not even close. Pfaff, surveying various studies, concludes that rising imprisonment in the 1970s and ’80s—when the prison population was actually low relative to the crime rate—helped stem the rise in crime, but that today, the return on added imprisonment is close to zero.

From 1994 to 2008, as crime was falling, prosecutors grew twice as likely to file felony charges in a given case. That change alone, Fordham University’s John Pfaff has calculated, explains almost all of the growth in incarceration.

And even if spending on prisons has an impact on crime, there are better ways to go about it. The economist Steven Levitt, looking at the 1990s crime drop, has estimated that “a dollar spent on prisons yields an estimated crime reduction that is 20 percent less than a dollar spent on police.” Social science shows that when it comes to deterring crime, what matters most is certainty of punishment, not severity. That’s because people who commit crimes are already less likely to weigh the long-term consequences of their actions. It’s also because the up-front costs of being arrested are enormous regardless of how long someone spends in prison or whether he is convicted at all. The threat of having to explain an arrest to one’s friends, family, or boss is incentive enough for most people to follow the rules.

“Yet our policies,” Pfaff writes, “get this completely backward.” For most crimes, the clearance rate—the percentage of crimes that result in police making an arrest—has stayed the same or even declined since the 1960s. In 2014, the clearance rate for murder was 65 percent, meaning more than one in three murders—murders!—go unsolved in the United States. The numbers for other crimes are even worse: 39 percent for rape, 30 percent for robbery, 14 percent for burglary. If legislators are serious about fighting crime, they should be focusing relentlessly on boosting police budgets. Instead, they pass symbolically satisfying laws like “three strikes”—which are doubly foolish because most young men age out of violent behavior pretty quickly. Most “violent offenders,” a term Pfaff would like to retire, “are not violent people; they are simply going through a violent phase.” Yet many are locked up for years past the point when they are likely to pose a continued risk of violence.

There’s a bright side to the pivotal role of local elected prosecutors: reformers can make an impact regardless of who’s in the White House or Congress.

Just as easing up on nonviolent offenders wouldn’t make much of a dent in mass incarceration, neither would closing private prisons. Shortly after the election, a link made the rounds on social media showing a sharp spike in private prison stock, probably reflecting the market’s confidence that the Trump administration will reverse Obama’s decision to end contracts for non-immigration detentions. But private prisons, for all their notoriety, housed only 8 percent of inmates at their peak in 2008; half of these were held by either the federal government, Texas, or Florida. And while private prisons are surely lobbying against cutting the number of inmates, their political clout is dwarfed by that of public prisons, which employ far more people and exert tremendous pressure on state legislatures.

Again, this doesn’t mean reformers should rush to embrace private prisons. It means that paying them too much attention risks distracting from the more important drivers of mass incarceration.

I have been guilty of a version of this myself. Writing in 2015, I criticized Obama for repeating the nonviolent offender myth. But in that very article, I pushed the third aspect of the Standard Story: the idea that prison populations have increased because inmates are spending more and more time in prison. Sentencing laws, after all, have been getting harsher for decades. In the 1980s and ’90s, many states adopted mandatory minimums; abolished or restricted parole; and passed repeat-offender or three-strikes statutes that imposed ultra-harsh terms for even minor repeat convictions. It seems inevitable that this would all lead to more time served.

That the inevitable has not occurred is the most startling part of Pfaff’s argument. It isn’t that people are spending more time in prison than they used to; it’s that more people are getting sent to prison in the first place. If inmates were serving more time on average, then the number of prison admissions would be growing faster than the number of releases; more people would be going in every year than coming out. But since the 1970s, those numbers have risen pretty much in lockstep. In fact, most people who go to prison don’t spend as much time there as you might think—even violent offenders usually get out in two or three years. We’ve all heard the stories about people serving life sentences under three-strikes laws for petty theft, but, as Pfaff points out, they make the news precisely because they’re rare. Between 2000 and 2010, as the total prison population grew by just over 200,000, the average time served for many crime categories, including violent crimes, actually appears to have declined slightly.

How can this be? The answer points to a critically overlooked fact about incarceration: prosecutors, not legislatures, decide how much time people serve. That’s because while legislatures write the laws, and cops make the arrests, it’s prosecutors who decide what a defendant will actually be charged with. And since more than 95 percent of felony cases that are not dropped end in a guilty plea rather than a trial, the prosecutor’s choice is almost never checked by a judge or jury. (Judges can reject plea deals, but almost never do.)

Think of a district attorney as a customer at a diner and the list of criminal statutes as the menu. The harsh sentences are the shrimp scampi—they’re available, but hardly anyone ever orders them. In 1973, for instance, New York State passed the notoriously draconian Rockefeller drug laws. But, Pfaff points out, drug sentences didn’t actually begin to rise in New York until 1984, when the crack epidemic hit. Why? Because up to that point, prosecutors simply didn’t charge defendants under the laws. The same thing appears to be true with respect to the wave of tougher sentences passed in the 1980s and ’90s.

What prosecutors have done is get more aggressive about whether to charge people with felonies in the first place. This, Pfaff shows, is the real driver of rising incarceration rates. Pfaff looked at data collected by the National Center for State Courts logging the number of felony cases filed from 1994 to 2008. Here’s what he found: over that period, as crime and arrest rates were declining steadily, the chance that any given arrest would lead to a felony charge doubled. How prosecutors make that one decision—whether to charge a defendant with a felony—explains almost all of the growth in incarceration.

Of course, in solving one mystery—the specific cause of prison growth since at least the 1990s—Pfaff has raised an even more difficult one: Why did prosecutors grow more willing to bring felony charges, even as crime rates plummeted? Even by the standards of the criminal justice system, where comprehensive data is hard to find, prosecutors are a black box; their decisions are subject to almost no oversight. Maybe the availability of harsher sentences spurs them to file more felony charges, even if they don’t send people away for longer; maybe politically ambitious district attorneys have gotten more worried about looking soft on crime. There’s no way to know from the existing data.

The centrality of prosecutors to prison growth is in some ways discouraging. It’s easier to confront a problem that can be resolved with a discrete fix: passing a big drug-decriminalization bill, banning private prisons, or getting rid of mandatory minimums. The truth is that mass incarceration is much messier, and solving it will require wrangling with a complex web of laws, habits, and incentives varying across fifty states and thousands of jurisdictions.

But there’s a bright side to the pivotal role of local elected prosecutors: reformers can make an impact regardless of who’s in the White House or Congress. The small wave of reform district attorney victories on election day is proof. It’s an open question whether electing prosecutors like Mark Gonzalez will have an impact on incarceration rates, but any criminal defense attorney will tell you that the problem with many prosecutors’
offices is exactly what Gonzalez talked about: culture.

Though he is better at diagnosis than prescription, Pfaff has some suggestions for broader reforms, like plea bargaining guidelines that force prosecutors to offer less punitive deals; rezoning district attorneys’ offices so that suburban voters don’t get to elect urban prosecutors; and, provocatively, relying more on private prisons, but paying them based on how prisoners perform after they’re released. And while prison growth is mainly a state issue, there is one simple thing the federal government could do to make a huge impact: give states money to fund indigent defense. Having a good defense lawyer is one of the most powerful ways to check the power of a prosecutor, and a $4.5 billion annual grant would double the amount states currently spend on public defenders, who represent the overwhelming majority of defendants.

“[C]hanging the attitudes of prosecutors, not their options, will likely have the biggest impact,” writes law professor John Pfaff. The lesson from November 8 is that the best way to change attitudes may be to change prosecutors.

But legislative reforms will only go so far. As Pfaff puts it, “[C]hanging the attitudes of prosecutors, not their options, will likely have the biggest impact.” The lesson from November 8 is that the best way to change attitudes may be to change prosecutors. Voting out an incumbent is no guarantee of success, of course—it depends who the replacement is. Realistically, reformers won’t be able to monitor every charging decision the new district attorney makes; they’ll have to elect people they can trust. “This means that in the long run, reform groups will have to focus not just on getting out the vote, but on grooming people to run in these races,” Pfaff writes.

The example of Mark Gonzalez suggests a fertile recruiting ground: the defense bar. Lawyers who work in public defender offices, in particular, are passionate about their work. That passion leads them to view working in prosecution as akin to treason—after all, as Gonzalez said, many prosecutors’ offices have a culture that dehumanizes defendants.

But that’s exactly why committed defense attorneys should run for district attorney. Culture is something that’s very hard to change through litigation or legislation. A prosecutor with the right priorities can do more good, for many more defendants and their communities, than even the most capable public defender.

When I spoke with Gonzalez, I asked him what he worried about in his new role. “Being in charge of somebody’s freedom,” he said. “The reality that I could send somebody to prison who maybe didn’t do what we think they did. That’s a scary thought, and that responsibility is a huge one. As the elected DA, that’s on my shoulders. If you’re the DA and not worried about that every time you make the decision, you probably shouldn’t
be there.”

Indeed. One priority for criminal justice reformers must be figuring out who should be there

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Follow Gilad on Twitter @GiladEdelman . Gilad Edelman, a Washington Monthly contributing editor, is a politics writer for WIRED.