The US mass incarceration crisis can’t be fixed until we realize we’ve been looking at the problem all wrong

In the public conversation about the mass incarceration crisis in the US, there’s a widely accepted diagnosis for why the country’s prisons and jails are bursting at the seams.

The story—propelled by academics, politicians, journalists, Oscar-nominated documentaries, and civic-minded celebrities—goes like this: The US prison population is ballooning because the “War on Drugs” needlessly put countless drug offenders behind bars; non-violent felons are getting egregiously long sentences; private prisons are a cancer on the system; and that a lot of this can be blamed—and should be resolved—by the federal government in Washington, DC.

 “We focus on the wrong thing and we actually adopt policies that won’t work.” But criminologist and law professor John Pfaff thinks that all this—what he calls the “Standard Story” of mass incarceration gets many things wrong. In his new book Locked In, published on February 7 by Basic Books, Pfaff, who also has a PhD in economics from the University of Chicago, examines data gathered over a decade, and comes to the conclusion that the Standard Story misses or doesn’t appreciate a number of key factors, such as the simple fact of rising crime through the 1960s, 70s, and 80s, as well as the unconstrained power of prosecutors, who have significantly driven up prison admissions in the last several decades.

Pfaff isn’t out to cut the legs out from under those who wish to see a change to mass incarceration in the US, but he truly believes the Standard Story is getting in the way of effective reform. “We focus on the wrong thing,” he says,” and we actually adopt policies that won’t work.”

What the Standard Story gets wrong

Michelle Alexander, in The New Jim Crow, her seminal book on mass incarceration blames the War on Drugs, launched by the US government in the 1970s or 80s, depending on whom you ask, for filling up US prisons. This is a central part of the Standard Story, and, Pfaff says, it creates a false impression of who in fact sits behind bars.

It’s an effective argument: according to a survey of about 2,000 registered voters conducted by Vox and Morning Consult, 61% of Americans think that nearly half of inmates in American prisons are low-level drug offenders. This is not accurate. It’s true for federal prisons, but in state prisons, which house 87% of all US inmates, only 16%, or about 200,000 overall, are drug offenders.

Because of the popularity of the Standard Story, releasing non-violent drug offenders from prison has become the most well-known solution for reducing mass incarceration. Barack Obama made it a crucial part of his presidential legacy by commuting the sentences of hundreds of drug offenders.

Reducing the number of drug offenders in US prisons is “the essential jumping off point to scale back mass incarceration,” Pffaf agrees. While the number of drug offenders in US prisons is not quite as large as people think, it’s still roughly equivalent to the entire prison population in the 1970s—and Pfaff says cutting down their number in prisons is not inherently a bad idea.

But there is a danger in focusing on non-violent drug offenders, he says. For one, it distracts the public, and diverts political attention away from the majority of American offenders: the violent ones.

“Even worse, the rhetoric and tactics used to push through reforms for lower-level offenses often explicitly involve imposing even harsher punishments on those convicted of violent crimes,” Pfaff writes. For example, Maryland in 2016 got rid of mandatory minimums for some nonviolent crimes, while at the same time increasing the maximum sentence for second-degree murder. A revision of a sentencing reform bill introduced in the US Senate in 2016 followed the same pattern (the bill is still stalled in Congress).

According to Pfaff, another central failure in the conventional wisdom is the notion that egregiously long sentences are driving prison growth. We’re barraged by news of 20- or 30-year sentences for small crimes, often a result of mandatory minimum statutes and three-strike laws that punish repeat offenders no matter how minor their crime. Sentencing reform efforts, like the Maryland and Senate bills, largely focus on changing these types of laws.

 Even a short prison sentence is a massive societal cost. It’s true that prison sentences in the US are generally longer than in other countries. But, Pfaff points out, most are still not that long. Michigan had the longest average prison stay of all US states in 2012 (the last year for which data are available), according to The Pew Center on the States, and it was 4.3 years. Although this is longer than in the past, the average offender released from a state prison in 2009 served less than three years. A “life” sentence in the US often ends up being much shorter—in Kentucky, for instance the median sentenced served by a life prisoner in the 1990s and early 2000s was 10-15 years.

That means, says Pfaff, prison growth is driven by admissions, not length of sentences.

Consider how many people the US admits into its prisons versus how much the prison population grows: Between 2000 and 2014, the US admitted 9.6 million prisoners, but the prison population only grew from 1.25 million to 1.35 million. People are coming in and out, but not staying for long.

“[T]he primary goal should be to reduce the number of prisoners, not the prison population. Focusing on the latter allows the former to quietly rise,” Pfaff writes (his emphasis).

Even a short prison sentence is a massive societal cost, with job opportunities lost and family ties weakened. A criminal record on your resume reduces the number of job offers by half for whites, and even more for African-Americans, according to research by Harvard sociologist Devah Pager.

The prosecutor problem

After crunching the data, Pfaff came up with a fairly simple alternative answer to the question of why prison admissions have been rising in the US: the primary driver is the power of the prosecutor.

A prosecutor makes crucial decisions in the criminal justice system—whether to charge or dismiss a case, for example, and what kind of charge to impose, or what kind of plea bargain to strike. “When one considers the fact that more than 95% of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers,” Angela J. Davis, an American University law professor and expert on prosecutorial power wrote in The New York Times in 2012.

Pfaff’s research shows that between 1994 and 2008, reported crime and arrests were falling—but felony charges rose by almost 40%. In that time, the probability that an arrest would lead to a felony case doubled. This points to the prosecutor, the one player who gets to pick whether to slap someone on the wrist with a misdemeanor or broadside them with a felony charge, or perhaps do nothing whatsoever.

There’s little empirical data on why prosecutors have become so aggressive in recent years, but Pfaff has a few theories.

The first has to do with an imbalance between crime rates and the rate of growth in the number of prosecutors working in the US. As crime was rising in the 1970s and 80s, prosecutor productivity rose, according to indicators like arrests and prison admissions per prosecutor. The total number of prosecutors also grew steadily, from 17,000 in 1970 to 20,000 in 1990.

Then, from 1990 to 2007, the number of US prosecutors jumped from 20,000 to 30,000. This was right when crime was dropping, but indicators suggest prosecutors kept their hard-charging ways of earlier decades. So, for example, in 1990, there were 25 prison admissions per prosecutor, or about 500,000 total, while in 2007, there were 23 prison admissions per prosecutor, or 690,000 total.

Then there’s the variety of options prosecutors now have at their disposal when they charge a defendant, granted to them by legislators who’ve introduced mandatory minimums or tougher sentencing laws because they like to appear tough on crime. When prosecutors charge someone with a crime that carries a mandatory minimum sentence, they limit the judge’s discretion in picking a sentence, and judges are often forced to send people to prison for decades for relatively minor infractions.

In other words, the cards are all in the prosecutor’s hands. Meanwhile, prosecutors themselves often have political ambitions, and appearing tough makes for good political capital.

 Prosecutors often have political ambitions, and appearing tough makes for good political capital. The American political system is inherently punitive, Pfaff argues. Lawmakers usually err on the side of being “tough on crime,” because the costs of leniency are too high. The most famous example is perhaps Michael Dukakis, whose 1988 presidential campaign was brought down by his appearance of being soft-hearted toward violent criminals. Because prosecutors and judges in the US are elected also by voters, they’re subject to the same impulse to placate public opinion. Research shows, for example, that the closer judges are to facing reelection, the more punitive they become (pdf, pg. 7).

One solution—already used in some states—is to appoint prosecutors and judges instead of electing them. “If we want to make sure that the rights of criminal defendants are protected, judges need a certain amount of independence from the electorate that generally views these people with such disdain,” Pfaff says.

Prosecutors would ideally be appointed by mayors—generally, Pfaff is in favor of more local control of players in the legal system. But this would be a major change that would be difficult to implement. A more feasible option would be to have prosecutors elected by a smaller, local electorate.

Currently, in many US areas, voters in low-crime suburban areas vote for prosecutors who also serve cities where crime is higher. The suburbanites, often largely white, bear neither the costs of crime, nor the costs of overzealous enforcement, but have disproportionate influence over who prosecutes minority neighborhoods in urban centers. (The one crucial point where Pfaff agrees with the Standard Story and Michelle Alexander is the role of race and bias in the growth of prison populations).

Yet another means to change the way Americans are prosecuted is to alter the culture of district attorney offices, one by one, by getting reform-minded prosecutors elected to these positions. This is already happening across the country—during the 2016 election, a number of reformist candidates won their district attorney races, including Kim Ogg in Houston, Texas, who fired 40 senior prosecutors as her first step in office, and Mark Gonzalez in Corpus Christi, Texas, whose career experience is on the other side of the courtroom, as a criminal defense attorney.

Another idea along the same lines is to give prosecutors formalized guidance on when and how to charge and offer plea bargains to defendants. Judges and police already have these sorts of standards in place to help them make decisions (although these are sometimes criticized as harsh); if designed well, Pfaff says, prosecutorial guidelines could work well to reduce mass incarceration.

Controversial solutions

Changing the culture and power of prosecutors is a relatively uncontroversial idea that’s already starting to become accepted wisdom. Pfaff also argues for some solutions that are a harder sell.

Private prison operators are much maligned, and for good reason. To make a profit, private prison operators often cut corners, resulting in facilities with subpar or even inhumane conditions, and with little to no rehabilitation services or vocational programs.

But Pfaff, who preaches the power of data, sees private prisons as a distraction from the larger issue. He points out that public prisons, which house the vast majority of US inmates, suffer from many of the same problems—and the governments running them are much more powerful than private prison operators.

As a source of many jobs in rural areas, government-run prisons actually often have the same incentives to keep more people incarcerated as those run privately. Pfaff argues private prisons’ profit-driven character does not necessarily make them bad. With well-designed contracts, he says, you can even incentivize private prison companies to reduce mass incarceration. Programs where a private company or investor is paid for cutting down recidivism are being tested in the UK, Australia, and Pennsylvania.

 Pfaff argues private prisons’ profit-driven character does not necessarily make them bad. More importantly, Pfaff says, the US needs to reexamine its approach to people convicted of violent crimes. They make up the vast majority of the US prison population, and are serving the longest sentences. But this conversation often ends up dead on arrival. New Jersey senator and criminal justice reform champion Cory Booker has been questioning the proportionality of punishment for violent crimes for years now. In 2015, he told Slate his discussions with other lawmakers on the topic are “not going that far,” and that there’s little appetite for expanding reform to violent criminals.

Generally, the argument for locking up violent criminals for a long time is that if we don’t, they’ll do it again. But Pfaff says this is misguided. Drawing on past research on crime, he argues violence is for most people a phase in life they age out of. We don’t need to lock up a 20-year-old for decades, because his violent behavior is likely to diminish naturally, Pfaff’s argument goes—although he stipulates that in practice, you can’t really predict individual behavior.

The other argument for locking people up is deterrence: the threat of a long prison sentence will scare potential criminals from committing crimes. But research over the past several decades in both the US and abroad shows long sentences do not necessarily deter people from committing crimes. If anything, what scares potential criminals away is the certainty of being caught. That depends on effective policing, rather than the possibility of serving life in prison.

Can there be prison reform under Trump?

On Feb. 28, Jeff Sessions—before the uproar over his alleged contacts with the Russian ambassador to the US during the presidential campaign—gave his first speech as US attorney general. “We have the most remarkable, wonderful legal system the world has ever known,” he said. “I truly believe that.”

Considering the 2.2 million people locked away in US prisons—a higher rate of incarceration than exists in countries such as Russia or China—and the millions more affected by a criminal justice system that perpetuates and exacerbates racial inequality, this statement is hard to take at face value.

Sessions said he thinks the current uptick in violent crime—which follows a long period of decline—is not an aberration, but a “start of a bad trend.” And so he wants to put “bad men behind bars,” echoing president Donald Trump’s rhetoric about all the different kinds of “bad people” overrunning America. Sessions said he will be directing federal prosecutors to “prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.”

In other words, Sessions’ agenda is the opposite of Pfaff’s prescriptions.

So unless Republican members of Congress significantly distance themselves from the Trump administration (in January, they were hoping Sessions would back the watered down sentencing bill), the US is unlikely to see meaningful criminal justice reform on the federal level in the coming years. And with the Trump administration’s crackdown on undocumented immigration, we will see federal prisons filled to the brim.

On the other hand, Pfaff says, one of the faults of the Standard Story is that it assigns too much importance to the federal system. The criminologist and other advocates are placing their hope in reform on the local level. As Pfaff notes in Locked In, there are as many criminal justice systems in the US as there are counties, and so the most significant change might come not from the top, but from a groundswell that results from progressive policies in the 3,000-plus US counties.

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