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February 8, 2015

Highlighting the role of prosecutorial activity in modern mass incarceration

Images (3)I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration.  The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:

Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high.  It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012.  But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.

What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place.  Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be.  If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.

In a conversation with Slate, Pfaff explains his theory....

Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.

A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.

Q: Why would that be?

What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3.  So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies.  I can’t tell you why they’re doing that.  No one’s really got an answer to that yet.  But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

As regular readers likely know, I am a big fan of John Pfaff's research.  Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities.  (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)

That said, in part because John's analysis  is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges."   In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year.  But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s.  These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."

In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system.  But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted.  (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)

My point here is not to assert that John's data analysis is misguided or inaccurate in any way.  But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights.  And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.

Prior posts about Prof. John Pfaff's important research:

February 8, 2015 at 02:24 PM | Permalink

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Comments

I think that your right about the growth of the federal criminal justice system fueling state systems. I would also like to see some research about forfeiture's role in the aggressive charging by both state and federal prosecutors.

The cooperation between local task forces and the DEA in bringing forfeiture to state and local law enforcement is a great incentive for arrest and prosecution. It is quite logical that greater resources and personel in law enforcement will lead to more incarceeration.

Posted by: beth curtis | Feb 8, 2015 3:47:20 PM

Some evidence of how a former AUSA thinks is here in this article from Salon. If Catherine Hanaway were still an AUSA there would be an even greater number of folks in prison for child porn.
She believe all "liberals" are guilty of sexual permissiveness and child porn. I'm sure there are other prosecutors who have their own misguided views on crime, similar to this.

http://www.salon.com/2015/02/03/gop_gubernatorial_candidate_liberals_sexual_permissiveness_to_blame_for_child_porn/

Posted by: SSL | Feb 8, 2015 7:49:23 PM

Isn't it a comment lace of academic punishment theory that the certainty of punishment is a key point for deterrent effect. If so, then perhaps we should be applauding the prosecutors who have overcome previous barriers to following through after an arrest.

Posted by: OPD | Feb 8, 2015 11:35:28 PM

This is ridiculous. These prosecutors allow 9 in 10 crimes to go unanswered. When they have a guy, in 1 in 10 cases, it is the wrong guy. They are at will employees at the whim of the political hack running their office.

Then try self help, the single factor unifying all low crime rate areas, within the nation and in other countries. You get crushed by these prosecutors. How much worse can an enterprise get before something is done about. The first step is to pass a constitutional amendment making them fully liable civilly and criminal liable for their decisions. That would include aggregate claims they are herding crime into minority areas, and are allowing a 6 fold murder rate of black males. And they have a duty ot the individual what ever the Supreme Court says.

Make them civil service.

Tie pay to performance. Performance is not the win loss record, but the actual crime rate in the jurisdiction, not measured by police reports, but by community survey of victimization.

Posted by: Supremacy Claus | Feb 9, 2015 12:44:59 AM

When it rains it pours.

U.S. judges see 'epidemic' of prosecutorial misconduct in state

Federal judges called upon state Atty. Gen. Kamala D. Harris to respond to reports of a pattern of prosecutorial misconduct going undisciplined in state courts. (Damian Dovarganes / Associated Press)
By Maura Dolan

Federal judges accuse California bar of turning a blind eye to an 'epidemic' of prosecutorial misconduct

The hearing seemed largely routine until a state prosecutor approached the lectern.

Deputy Atty. Gen. Kevin R. Vienna was there to urge three judges on the U.S. 9th Circuit Court of Appeals to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County. Other courts had already determined that prosecutors had presented false evidence in Baca's trial but upheld the verdicts anyway.

Vienna had barely started his argument when the pummeling began.

Posted by: George | Feb 9, 2015 1:31:54 AM

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