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May 30, 2014

The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report

DownloadAstute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences."   To date, I only noted the report and some early reactions to it in this post.

One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it.  But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report.  I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates.  Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom. 

Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis.  John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:

The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth.  Sadly, it appears to be a deeply, profoundly flawed report.  It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.

Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions.  The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.

So in the posts ahead, I want to dig into the report more deeply.  I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.

From the start, here are John's posts to date highlighting some of the NRC errors he sees:

May 30, 2014 at 01:48 PM | Permalink


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This was interesting:

"... Between 1994 and 2008, the probability that an arrest would result in a felony filing** rose from 0.387 to 0.57, an increase of 54%. During the same time, the probability a felony case would result in a prison admission was flat at 0.26. In other words, growth is driven almost entirely by an increase in felony filings.

"This solves the “who” question that the report’s analysis can’t answer: growth is driven almost entirely by the prosecutor. Once a felony case is filed, the defendant is no more likely to go to prison in 2008 than in 1994. But the probability that an arrestee finds himself confronting a felony charge soars."

Other than that, I found most of Mr. Pfaff's criticisms to be relatively minor.

However, the foregoing idea that a major (and under-appreciated) cause of the incarceration epidemic is over-funded and overzealous prosecutors is consistent with my personal experience. For example, my county supervisors here in California approve massive budget allocations for the county prosecutor's office year after year without debate. This includes huge secretarial staffs, as well as scores of "victim witness advocates."

I think that the prison industrial complex and the prison guards unions understand perfectly well that prosecutors are the well-spring from which all job security flows. Sounds like it is time for the academics to begin highlighting over-funded county prosecutors as a root cause of the epidemic.

Maybe run a regression of average county funding for prosecutors' offices (as a percentage of average total county budgets) against state prison populations...

Posted by: James | May 30, 2014 7:01:57 PM

Sentences enforce two purposes--public safety and community values. Within every state, the "public safety" component is more or less consensual among all residents while the "community values" to be enforced vary across urban/suburban/rural and other lines. Using the data available to state corrections and courts, a researcher could categorize offenders as to assessed risk (NOT "violent" or "nonviolent," two intractable categories in practice) and then determine the sentences most associated with their "survival" after release or recidivism. IOW, the maximum "public safety" associated with a sentence can be determined, and the responsibility for funding it can be parceled to taxpayers who basically agree on it. However, in my experience with this kind of analysis, those sentences are generally, at least for low and moderate risk offenders, in the 1-3 year range. Any sentences and time served beyond that fall into the justice premium paid for those "community values." If/when those costs are required to be paid by the counties, if/when the state decides only to pay for the "public safety" portion of the sentence, the counties will have to take second and third looks at what they're doing. It doesn't deny the importance of community values in the sentencing process, but it does require the responsibilities for payment of the associated costs to be allocated correctly.

When I was in sentencing policy, I regularly heard from judges in more severe counties that sentencing guidelines should not be applied to them if they were based on the practice of less severe counties and judges. It "wouldn't respect our values here in XXXX County." However, that applies the other way, too. If taxpaying voters of a county believe a 3-year sentence for a given offense meets their values, why should they be paying for a 5-year sentence in XXXX County? The answer given is always "public safety," not values, if an answer is given at all, but differentiating and enforcing the "public safety" component of the justice takes that justification away. Plus, it requires the county officials to explain to their constituents why they believe their "values" should place those constituents at greater later risk for more crime and victimization than if a lower "public safety" sentence were imposed. If the response is "well, it takes a 5-year sentence in XXXX County to get the result that a 3-year sentence does in other counties," then maybe the problem isn't with the sentencing but with the officials.

In any case, despite all the talk that the "drivers" of our prison population increases are drug laws or parole policies or whatever we get thrown at us from the "consultants" who preside over current sentencing/corrections reform, the true drivers are the DAs. It will take creation of new perspectives and policies such as the public safety sentencing described above, term limits on prosecutors both elected and hired, quotas on plea bargaining, jury nullification acknowledgement and authorization, and others to pull us away from the bureaucratized and self-serving, self-enriching processes that we've turned over to the "professionals" in the last 4 decades. This is the message that Doug has brought us with his coverage of the work of Stuntz and of Bibas in recent years. It's what these posts are implying now. I'm looking forward to seeing if and how much Pfaff continues along these lines in the future posts he's promising.

Posted by: mike connelly | May 31, 2014 11:48:37 AM

Heaven forbid that the government provide funding for "victim witness advocates" who protect children from their abusers and get them the counseling they need, help fraud victims navigate the system to get their stolen money back, hide testifying witnesses from those who are trying to kill them, hold the hands of loved ones during the trial of the murderer who took away their family, and tons of other sorely needed services that we owe to victims and witnesses. Geez, I come to this blog because it's a good source of current events in sentencing law, but sometimes it really jumps the shark.

Posted by: Domino | May 31, 2014 10:33:33 PM

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