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The Hard Realities of Hard Time

books and culture

The Hard Realities of Hard Time

By being honest about facts and statistics, John Pfaff undermines his own book’s case against imprisonment. June 9, 2017
Arts and Culture

Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff (Basic Books, 272 pp., $27.99)

John F. Pfaff’s Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform is probably the best book on so-called mass incarceration to date. A professor of law at Fordham, Pfaff doesn’t cherry-pick data to support some a priori theory; staying empirically grounded, he grapples directly with the data—an approach that makes his argument for reducing imprisonment a very tough sell. If, as Pfaff’s own figures demonstrate, violent crime and other serious offenses are the primary reasons for incarceration, then why should we reduce imprisonment?

The author’s main point is that the usual explanations for the rise in imprisonment—the “standard story,” as he calls it—are not only wrong but also counterproductive to de-incarceration efforts. The standard story has three components: the war on drugs, long prison sentences, and the growth of private prisons. Each of the three, Pfaff demonstrates, is a secondary contributor at best.

Pfaff quickly dismisses the contribution of the “prison industrial complex” to mass incarceration, noting that privately managed prisons house only about 7 percent of U.S. inmates, and that their management policies are no worse than those of the public sector. The drug war is a more serious contributing factor to rising imprisonment rates: drug convictions put thousands behind bars, especially during the crack cocaine epidemic of the 1980s. Michelle Alexander, in her much-ballyhooed 2012 book The New Jim Crow, writes that the “impact of the drug war has been astounding. In less than thirty years, the U.S penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.” But as Pfaff demonstrates, at the peak of the great crackdown in 1990, inmates serving time in state prisons for drug crimes accounted for 22 percent of the state-prison population, whereas violent inmates made up 47 percent—more than twice as many. When prison populations increased dramatically, from 1980 to 1990, drugs accounted for only a third of the increase. Even in that lock-’em-up decade, crimes of violence put a greater number, 36 percent, behind bars.

In the decades before and after the more punitive 1980s, the case for emphasizing drug imprisonments is even weaker. A 1974 survey of state prisoners found that only 10 percent were in for drug offenses, while 52 percent were incarcerated for violent crimes. From 1990 to 2009, Pfaff found, drugs contributed only 14 percent to state confinement; violence, a whopping 60 percent.

Pfaff thinks that false claims about drug imprisonment actually hurt the case for disincarceration, because reducing drug imprisonment leaves the main culprit—violent crime—unaffected. If all drug-law violators were freed tomorrow (and most of those in prison are traffickers, not simple users, so this won’t happen), then the number of inmates in our state prisons would drop by only 16 percent, leaving 1.1 million people behind bars. And, as Pfaff notes, the structural basis for another period of increased imprisonment in response to the next crime wave remains intact.

When imprisonment rates rise, it must mean either that more people are being incarcerated or that they are being confined for longer periods—or some combination of the two. Pfaff denies that longer terms of imprisonment are to blame for mass incarceration. Indeed, he says that time served in the United States is “surprisingly short, and there’s no real evidence that it grew much as prison populations soared.” In 2010, armed robbers, to take a particularly scary sector of the criminal population, were released in a median 2.3 years. Moreover, actual prison time has decreased in the last few years (few prisoners serve their maximum sentences).

Pfaff proves that time served has not increased in recent decades by graphing annual admissions to prison along with annual releases from 1978 to 2014. We can readily see that sentences must not have lengthened much. If they had, prisoners would be confined longer, releases would be slowed, and the plot lines would diverge as the admissions line would rise faster than the releases line.

Pfaff concludes that, since imprisonment rates rose substantially but sentences didn’t get much longer, more people must have been sentenced to prison. This brings him to the villain of the incarceration buildup as he sees it: prosecutors. Who decides whether a defendant goes to prison? The general public probably would point to judges and, perhaps, the sentencing laws that guide them. But Pfaff asserts that prosecutors are more significant. They select the charges and negotiate the plea that determines both guilt and the boundaries of the sentence.

Pfaff’s quantitative proof for this hypothesis is weak, by his own admission. He does show that prison admissions per prosecutor rose from nine in 1974 to 25 in 1990, though other factors could account for the increase. For instance, sentencing statutes with mandatory prison provisions could have become more significant by 1990, especially given the growing number of defendants with criminal records. And he admits that the enormous increase in assistant prosecutors alone (from 17,000 in 1970 to 30,000 in 2007) could explain why more people were sent to prison—even without any change in prosecutorial attitudes.

However, the case is more complicated than Pfaff recognizes. He didn’t examine the number of felony charges resulting in probation, a get-out-of-jail-free sentence unquestionably under prosecutorial control. In 1986, for instance, 31 percent of all adults convicted of felonies got probation. So prosecutors kept nearly one in three felons out of prison at a time when rates of imprisonment were rising sharply—which hardly suggests punitive prosecution.

Whether prosecutors caused the massive rise in imprisonments is debatable. One could as easily focus on different points in the causal chain leading to incarceration. The late 1960s to the early 1990s was an era of high crime rates, and one would expect the criminal-justice system to imprison more people. In fact, Pfaff observes that rising crime in the 1970s and 1980s explains approximately half of the prison-population increase in those decades. Crime itself is probably the true explanation for mass incarceration.

But since Pfaff thinks that prosecutors are to blame, his solution is to rein them in through structural changes such as plea-bargaining guidelines, local elections to give inner cities more control over who prosecutes—though he also argues, contradictorily, that prosecutors should be appointed—and sentencing commissions as a bulwark against public pressure to escalate punishments. As he seems to appreciate, however, none of these proposals is likely to work even if they were politically feasible, because the overwhelming majority of prisoners are guilty of serious and usually violent crime, and few prosecutors in any circumstances will decline to lock up such defendants.

Pfaff calls prison growth a “national shame,” but if the vast majority of prison inmates are guilty of violent or serious nonviolent crimes, and if sentences are not unacceptably long, then why should we disincarcerate? Currently, at least 88 percent of state prisoners are in for extremely serious offenses, including violent crimes such as murder and rape (53 percent); property crimes like burglary and grand larceny (19 percent); weapons possession (4 percent); and yes, drug trafficking (12 percent). Is it wrong to imprison such people?

Pfaff’s answer is that the costs of incarceration—more single-parent families, assaults on inmates, prisoner health problems, and an array of post-release issues, from unemployment and drug problems to the need for social services—outweigh the benefits. But some of the problems he lists are not attributable to prisons alone. The typical person incarcerated for serious crime is unlikely to be highly employable, drug-free, or a responsible parent.

Even if we grant that prisons exacerbate inmate problems, they provide advantages that should be part of any cost-benefit analysis. Pfaff gives short shrift to the benefits side of the equation. As he concedes, the best analyses indicate that, starting in the early 1990s, increased imprisonment reduced crime. Yet he downplays the costs of a post-disincarceration crime wave. These costs—the injuries and deaths due to assault; the fear engendered by unrelenting violence; the risk of ruining young lives through the temptations of gangs and drugs, to say nothing of dysfunctional schools; the depressed property values; and the discouragement to businesses, in turn creating more unemployment and greater demand on limited community services—are most likely to be borne by low-income and minority communities.

Ironically, by presenting the hard realities of imprisonment—the fundamental one being that incarceration and serious crime are closely related—Locked In weakens the case against incarceration. However unintentional, this is the book’s great virtue.

Photo by Andrew Burton/Getty Images

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