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September 29, 2015

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 at 01:24 PM | Permalink


Slight problem with the counter-narrative: time served did increase substantially. Our Time Served report (http://www.pewtrusts.org/en/research-and-analysis/reports/2012/06/06/time-served-the-high-cost-low-return-of-longer-prison-terms) found that across all crimes it rose from 2.1 to 2.9 years (36%) from 1990 to 2009. For violent crimes, it went from 3.7 years (37%); property crimes 1.8 to 2.3 years (24%), and 1.6 to 2.2 years (36%) for drug crimes. This doesn't mean longer time served is the only or even the most important factor in prison growth. It's one of many, and can't be ignored.

Posted by: Adam Gelb | Sep 29, 2015 2:12:56 PM

Adam. Can you address the drop in fecundity as a factor in the drop in crime rate with a drop in prison incarceration? Your straight correlation between drops in imprisonment and drops in crime is misleading.

This is a long term secular effect. That means that reversing the high rate of incarceration will cause a rise in crime in 20 years, when the offspring of the criminals enter their criminal active years.

Posted by: Supremacy Claus | Sep 29, 2015 2:23:33 PM

A big percentage(like one out of four) of the incarcerated in places like Texas are non-violent offenders accused of very minor misdemeanors who are simply unable to post bail. This is a big, big problem because the overwhelming majority of these prisoners are incarcerated merely because they are poor. "Grits for Breakfast" does an amazing job covering this very significant social and sentencing issue. This issue deserves a lot more press than it's been getting.

Posted by: Jardinero1 | Sep 29, 2015 3:52:49 PM

'Pfaff’s theory is that it’s the prosecutors.' That and too many damned laws.

Posted by: Randy | Sep 29, 2015 8:02:17 PM

The problem with the counter-narrative is that it ignores that much of the violent crime they point to is directly caused by the war on drugs. Criminalizing the marketplace for drugs means that the courts and other non-violent means of settling business disputes are foreclosed (just try to boring a breach of contract action against a dealer who delivered overly cut product). This leaves violence as the means to resolve disputes. When a large portion of a community's economy is forced underground, a culture of violence is created. That culture breeds the violent crime Brooks and others focus on.

Prohibition is the right analogy. We don't measure the rise in crime caused by prohibition just by looking at prosecutions of people arrested for possession (or sale) of alcohol. We look at the rise of gangs which prohibition caused.

Posted by: Alan Mills | Sep 30, 2015 9:23:37 AM

Sorry, for got to say who I am: my day job is Executive Director of the Uptown People's Law Center. In that capacity I litigate prisoner civil rights cases. I also teach a course on Prisoner Civil Rights as an adjunct at Northwestern and DePaul law schools.

Posted by: Alan Mills | Sep 30, 2015 9:25:21 AM

I'm a defense lawyer.

The accompanying URL makes the argument that the inadequacy of both of the "counter-narratives" might be illuminated by Sentinel Events (all-stakeholders, non-blaming) reviews of the 46 commutation cases just identified by the President. A close look at why people zigged when (we now believe) they should have zagged is required before any meta-narrative can be accepted. http://www.thecrimereport.org/viewpoints/2015-07-the-law-made-us-do-it-46-times

Posted by: James Doyle | Sep 30, 2015 9:36:35 AM

Alan nicely explains a piece of this. I'd add that the drug war popularized mandatory penalties and collateral consequences, which spread to other crimes later. The militarization of the police starts with SWAT teams for no-knock drug raids. The drug war popularized asset forfeiture and started us down the road to the imposition of a staggering range of fees.

Undoing the drug war will not reverse these trends. Regardless, we still need ration drug control strategies that decriminalize.

Posted by: Paul | Sep 30, 2015 10:08:32 PM

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