How to Achieve Real Criminal Justice Reform, Despite President Trump

The following is an excerpt from the new book Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John F. Pfaff. Copyright 2016. Available from Basic Books, an imprint of Perseus Books, a division of PBG Publishing, LLC, a subsidiary of Hachette Book Group, Inc.


PREFACE

Donald Trump’s surprise victory over Hillary Clinton on November 8, 2016, upended most people’s expectations of what public policy in this country—including criminal justice reform—would look like over the next four years, if not the next forty. Clinton had met with Black Lives Matters leaders and laid out a proposal for “end-to-end reform” of the criminal justice system; Donald Trump had surrounded himself with “tough-on-crime” advisers including Rudolph Giuliani and spoken favorably of now-discredited aggressive crime control policies like stop-and-frisk.

Yet that fateful Tuesday night was not a defeat for criminal justice reform. Far from it. As voters elected Donald Trump, they also passed a large number of criminal justice referendums—many of them (although, importantly, not all) reform-oriented—and voted out several tough-on-crime prosecutors in red and blue states alike. Consider Oklahoma: while Trump got 65 percent of the vote, the state also passed State Questions 780 and 781, which downgraded many drug possession and property offenses from felonies to misdemeanors, and required that the savings from the resulting reduced prison costs be directed to mental health and drug treatment programs.

Within days, dozens of articles appeared, all making the same point: somehow, surprisingly, criminal justice reform seemed poised to survive even under a Trump administration. Well, yes and no. Reform efforts will continue. Many voters, even those who voted for Trump, still seem to support cutting back prison populations, despite crime rising somewhat in 2015 and despite Trump’s rhetoric. ...[T]he federal government has little control over criminal justice reform, which is predominantly a state and local endeavor. As long as local voters favor reform, it will move ahead. And Election Day 2016’s results suggest that many voters do.

At the same time, reformers still don’t understand the root causes of mass incarceration, so many reforms will be ineffective, if not outright failures. Election Night offers a clear case study. Not all the successful ballot questions on criminal justice matters were reform-oriented; some were aimed at making laws harsher. An important split emerged. The reform questions focused on nonviolent drug and property crimes. The tougher-on-crime referendums, however, dealt with violent offenses and included proposals to speed up the death penalty process (passed in red Oklahoma and blue California) and a victim’s-rights law called Marsy’s Law that is so expansive that even prosecutors opposed it.

These results fit a common pattern in criminal justice reform, which for years has been premised on the idea that we can scale back our prison population primarily by targeting low-level, nonviolent crimes. ...[T]his is wrong: a majority of people in prison have been convicted of violent crimes, and an even greater number have engaged in violent behavior. Until we accept that meaningful prison reform means changing how we punish violent crimes, true reform will not be possible.

A similar misperception shapes the debate over private prisons. Such institutions receive significant attention and criticism, but their overall impact on prison growth is slight: only about 8 percent of prisoners are in private prisons, and there is no evidence that states that rely on private prisons are any more punitive than those that do not. So although private prison firms saw their stock prices soar in the aftermath of Trump’s victory—and even if more prisoners are sent to private prisons in the coming years—reformers’ attention should aim at individuals who play a much bigger role in supporting punitive policies and driving incarceration trends, including state and county politicians with prisons in their districts, and on prison guard unions. Yet these public-sector groups continue to face little scrutiny. In short, the state and local commitment to reform may endure. But because that commitment remains focused on the relatively unimportant factors behind prison growth, it continues to ignore the most important causes of this national shame.

—John Pfaff, November 2016

INTRODUCTION 

American Exceptionalism 

The statistics are as simple as they are shocking: the United States is home to 5 percent of the world’s population but 25 percent of its prisoners. We have more total prisoners than any other country in the world, and we have the world ‘s highest incarceration rate, one that is four to eight times higher than those in other liberal democracies, including Canada, England, and Germany. Even repressive regimes like Russia and Cuba have fewer people behind bars and lower incarceration rates.

It wasn’t always like this. Just forty years ago, in the 1970s, our incarceration rate was one-fifth what it is today. It was comparable to that of most European countries, and it had been relatively stable all the way back to the mid- to late 1800s. It was, in short, nothing out of the ordinary.

In fact, the prison boom started so suddenly that it caught most observers by surprise. 

In 1979, a leading academic wrote that the incarceration rate would always remain fairly constant, because if it climbed too high, state governments would adjust policies to push it back down.

As Figure 1 makes clear, however, the timing of that paper could not have been worse. 

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The number of people in state or federal prisons rose from just under 200,000 in 1972 to over 1.56 million in 2014; the incarceration rate grew from 93 per 100,000 to 498 per 100,000 (peaking at 536 per 100,000 in 2008). Another 700,000 people are in county jails on any given day, more than two-thirds of whom have not been convicted of any crime and are simply awaiting trial.

Remarkably, these numbers understate how many people are locked in prisons and jails each year. In 2014, approximately 2.2 million people were in state or federal prisons at some point, and perhaps as many as 12 million passed through county jails. Although the data are patchy, it’s clear that tens of millions of Americans have spent time in prison or jail since the 1970s. Historians, sociologists, criminologists, and economists disagree over exactly what changed in the 1970s that caused the surge, but clearly something—or a lot of things—changed, and our prison populations took an unprecedented turn.

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One clear cause was rising crime. Starting around 1960, crime rates started to climb steadily. By 1980, violent crime rates had risen by over 250 percent, and property crime rates by over 200 percent; after a brief lull in the early 1980s, violent crime spiked again in 1984, peaking in 1991 at almost 400 percent of its 1960 level (more or less). By the start of the 1990s, violent crime in America had never been worse, and property crime remained as bad as it had been in 1980. (See Figure 2.)

It’s not surprising, then, that prison populations also increased sharply during these decades. Surely this was in part just a mechanistic response, since more crime leads to more arrests, and thus to more convictions and more prisoners. But a mechanistic response cannot fully explain what happened with incarceration. The impact of rising crime on prison populations is difficult to measure empirically, and it can only be done with a fair amount of uncertainty, but the best estimate of that impact suggests that rising crime over the 1970s and 1980s can explain, at most, just half the increase in prison populations over those two decades. And that relationship likely weakened during the 1990s, as prison populations continued to rise even as crime declined.

Few, however, pushed back against this relentlessly rising incarceration rate. During the 1980s and 1990s, support for increased incarceration was strong. Crime was rising throughout the 1980s, making tough-on-crime policies popular, and although crime began a slow and steady decline in the 1990s, many viewed incarceration as a primary cause of that decline and thus continued to support it. There were some brief calls for reform at the start of the 2000s, as crime continued to decline and state budgets contracted in the wake of the dot-com crash, but they were fleeting. Economic recovery came quickly, and any nascent reform efforts quickly foundered. With the fiscal crisis of 2008, reformers revived their efforts, and the movement finally started to pick up steam. With prison populations at all-time highs and crime dropping to forty-year lows during a fiscal collapse far deeper and more sustained than the 2000 contraction, the opportunity to push for real reform seemed to be at hand.

In fact, the confluence of low crime and tight budgets has led to a surprisingly bipartisan push for reform during a time when those on the Left and the Right can barely agree on whether it is raining outside. Coalitions have brought together not just left-leaning reformers who have long opposed the social costs and the disparate racial impacts of our prison system, but also a complicated assortment of conservatives, including both budget hawks, who now prioritize cutting corrections budgets over their traditional tough-on-crime perspectives, and conservatives who are more ideologically committed to reform, such as redemption-focused evangelicals.

In 2010, for the first time since 1972, the US prison population edged downward. And then it continued to fall for three of the next four years. By the end of 2014, the last year for which we have national data, it was about 4 percent smaller than it had been in 2010. That’s not a large drop, and certainly not one that challenges our position at the top of the international incarceration tables, but—perhaps!—it’s a sign of things to come.

For reformers hoping to make deep cuts to our prison populations, these may seem like exciting times. State and federal prison populations are dropping, and every month or so it seems like someone is introducing a new bill in a state legislature or in Congress to change the system even more. The issue is also becoming popular among members of the general public. In a survey of registered US voters by the Pew Research Center in early 2016, 44 percent of all respondents said they believed that “reforming the criminal justice system should be a top priority”; the percentage rose to 73 percent for black respondents and 48 percent for Hispanics. By the start of 2016, the nascent Black Lives Matter movement had forced Democratic presidential candidates to address criminal justice issues more candidly and more often, especially as they pertained to race. Because of all this, many think the reform movement is making great strides.

I am not so optimistic.

At the heart of my pessimism is the fact that the current reform efforts rely on a conventional wisdom about prison (population) growth—what I will call the “Standard Story”—that either substantially oversimplifies or simply gets wrong the factors driving the incarceration epidemic. Reforms built on misconceptions will disappoint at best and fail at worst. My motivation... is to highlight the mistakes and shortcomings of the Standard Story; to point out the more important, but generally underappreciated, causes of prison growth; and to suggest a set of reforms that are more likely to yield durable change, but that so far seem to be all too absent from reform conversations.

The core failing of the Standard Story is that it consistently puts the spotlight on statistics and events that are shocking but, in the grand scheme of things, not truly important for solving the problems we face. As a result, it gives too little attention to the more mundane-sounding yet far more influential causes of prison growth. For example, a core claim of the Story, made perhaps most forcefully by Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Color-Blindness, is that our decision to lock up innumerable low-level drug offenders through the “war on drugs” is primarily responsible for driving up our prison populations. In reality, only about 16 percent of state prisoners are serving time on drug charges—and very few of them, perhaps only around 5 or 6 percent of that group, are both low level and nonviolent.10 At the same time, more than half of all people in state prisons have been convicted of a violent crime. A strategy based on decriminalizing drugs will thus disappoint—and disappoint significantly. Yet we see little to no efforts to reform the treatment of people convicted of violent crimes.

The Standard Story also argues that increasingly long prison sentences have driven growth, and thus that cutting back sentences would effectively cut prison populations. President Barack Obama made this claim in a major 2015 speech, and it has been made repeatedly before and after by innumerable academics, journalists, and policymakers. The claim isn’t exactly wrong: by international standards our sentences are long, and if people spent less time in prison, obviously prison populations would decline. In practice, however, most people serve short stints in prison, on the order of one to three years, and there’s not a lot of evidence that the amount of time spent in prison has changed that much—not just over the 1990s, 2000s, and 2010s, but quite possibly over almost the entire prison boom.

The far more significant change... is the increased rate at which people get sent to prison in the first place. The primary driver of incarceration is increased prosecutorial toughness when it comes to charging people, not longer sentences. Stopping prosecutors from sending people to prison to start with would be far more effective in cutting incarceration rates than reducing the amount of time prisoners spend in prison once they get there—and this fact points to a very different set of reforms than those generally proposed.

The Standard Story also talks extensively about the “prison industrial complex”—a term made famous by journalist Eric Schlosser—and the power of the companies that run private prisons. Tellingly, when 2016 presidential candidate Bernie Sanders decided to show his concern for criminal justice reform, his first step was to submit a law that attempted to ban private prisons altogether. For her part, Hillary Clinton publicly returned the relatively meager campaign donations she had received from private-prison executives once it became public that the donations had been made.

Private spending and private lobbying, however, are not the real financial and political engines behind prison growth. Public revenue and public-sector union lobbying are far more important. As states and counties have become wealthier, they have spent more on corrections (and everything else), and reining in that spending is much harder to do than limiting private firms’ access to corrections contracts. Similarly, the real political powers behind prison growth are the public officials who benefit from large prisons: the politicians in districts with prisons, along with the prison guards who staff them and the public-sector unions who represent the guards.

There is one central aspect of the Standard Story, however, with which I agree: the critical role that race has played in driving up prison populations. ... Showing that recent prison growth has been driven primarily by increased felony filings by prosecutors does not require an extensive analysis of race and punishment.

When turning to solutions, however, race becomes much more important. To figure out what we must do to responsibly reduce the prison population, we must understand why we have seen the results that we have—and that implicates race (along with class and other factors). To address why prosecutors have become more aggressive in filing charges, for example, we must think about the impact of racial segregation. Urban prosecutors are elected at the county level, where political power is concentrated in the wealthier, whiter suburbs, while crimes disproportionately occur in the poorer urban cores with higher populations of people of color. This segregation of costs and benefits is a racial story more than anything else. Identifying prosecutorial aggressiveness as a driver of growth does not necessarily require much consideration of race and punishment—but correcting it does.

Despite my criticisms of the Standard Story, I believe that sizable cuts in the US incarceration rate are possible. But I believe that they will be harder to achieve than many hope, and that they will be far more tentative and vulnerable to reversal than many expect. There will be no moment when legislators sign a bill that will definitively end mass incarceration, allowing reformers to declare victory. The Standard Story explanation suggests that this may be possible. It is not.

To really change prison populations, we need a better model of what caused prison growth and what can reverse it... In the end, this approach will suggest a set of solutions remarkably different from the ones typically proposed.

Excerpted from LOCKED IN: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John F. Pfaff. Copyright 2016. Available from Basic Books, an imprint of Perseus Books, a division of PBG Publishing, LLC, a subsidiary of Hachette Book Group, Inc.

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