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The Hidden Realities of U.S. Incarceration

When it comes to America’s high incarceration rate—now about five times what it was in 1970—there’s the Standard Story, and then there’s the truth.

The Standard Story is the one that has been propagated for years in mainstream-media outlets and by activists. It holds that the War on Drugs is virtually the sole culprit—that incarceration rose merely because America decided to start imprisoning nonviolent, low-level drug offenders for absurd amounts of time. It posits the simple solution of reducing or eliminating the sentences for these victimless crimes.

The truth, by contrast, is that about half of prisoners were convicted of violent offenses, and that some of the others committed violence but pleaded guilty to lesser offenses. Even the fifth of prisoners who are locked up for drugs tend to be mid-level dealers, not users or low-level distributors. And, while decades-long sentences make the news, most prisoners who committed crimes not involving the most serious violence are out within a year or two. In other words, while incarceration has undoubtedly soared—even relative to crime [1], which has dropped substantially since the early 1990s—our propensity to throw people in prison has simply not reached the heights of ridiculousness that many assume.

There is still “low-hanging fruit” to be had by releasing some drug offenders or subtly redefining crimes (such as changing the dollar-value threshold separating misdemeanor from felony theft), but this will not get America anywhere near the incarceration rate it had decades ago or the rates that prevail elsewhere in the developed world. Bigger reductions would require speeding the release—or declining to imprison—people who committed crimes that left very real victims, which is not so obviously a desirable outcome.

Until recently, few were discussing this reality aside from a handful of conservative commentators such as the Manhattan Institute’s Heather Mac Donald [2]. These people typically argued that those in prison mostly deserve to be there, and that dramatic reductions to the incarceration rate run an intolerably high risk of increasing crime. But in the last several years a number of reform-minded scholars and pundits have tried to make a public [3] case [4] for such reductions even in full view of the facts.

The latest entry in this literature is John Pfaff’s Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform [5]. It is an excellent overview of where America stands in regard to its prisons, and Pfaff’s proposed reforms deserve serious consideration across the political spectrum.

The role of the drug war isn’t the only issue on which Pfaff departs from the Standard Story. He also disputes the idea that the typical prisoner is spending much more time behind bars than he used to. In Pfaff’s view, the reason for our skyrocketing incarceration rate is that prosecutors have become more likely to file felony charges following an arrest, rather than that those convicted are being locked up for longer periods of time.

This is considerably more contentious among those who study imprisonment; unlike the percentage of prisoners serving time for drugs, it’s not something one can simply look up in a Justice Department report. Pfaff is at odds with the prestigious National Academy of Sciences [6], for instance, when he all but dismisses the role of time served. The debate involves competing data sources and intricate mathematical simulations.

But if prosecutors might not be the sole driver of mass incarceration, no one denies that they are a big one. And Pfaff expertly lays out how this happened so that we can see if it’s a process we can live with.

As is well-known, the crime explosion of the late 1960s through the early ’90s inspired lawmakers to adopt a get-tough approach, and this entailed reining in judges, for instance through mandatory-minimum laws. The concept is not inherently flawed: there are unique factors at play in each case, but in general, people who commit the same crime should receive similar punishments. The punishment should depend on the law, not the judge’s personal sense of justice or his like or dislike of the defendant. But there were two problems with these laws as they actually played out.

First, especially at the federal level, many minimums are so high that no one really thinks they’re fair and people are rarely sentenced to them. Instead, prosecutors use them as a threat to get defendants to plead guilty to lesser charges or testify against fellow criminals. (About 95 percent of cases end in plea deals rather than trials today.) In other words, they operate as a roundabout way to gut defendants’ constitutional rights: if you make the prosecution prove its case at trial and invoke your right to remain silent about criminal activities you participated in, you receive a patently unfair sentence [7]. Incredibly, the federal prosecutors’ lobby has defended the current mandatory minimums explicitly on these grounds [8].

Second, and relatedly, the minimums didn’t eliminate discretion from the system: prosecutors still have plenty. A prosecutor often can decide how much time a defendant should serve and then put together a mix of charges that will require the judge to give a sentence in that ballpark. The law can offer an impressive buffet of overlapping statutes that cover the conduct a defendant is accused of.

And in addition to holding enormous discretion, prosecutors face a number of incentives that are far from ideal. District attorneys are typically elected and want to avoid going easy on a Willie Horton or a Brock Turner. The elections are county-wide, giving conservative suburban areas a lot of say as to how high crime in inner cities is handled, even though suburbanites bear little of the cost of crime or of incarceration. Prosecutors also face little resistance, because judges normally accept plea deals and most defendants rely on public defenders, which are underfunded. In 43 states defendants have to pay at least some of the costs associated with their “state-provided” lawyer.

Moreover, what we call “the justice system” is really a haphazard mashup of city, county, state, and federal agencies. Federal prisons receive a lot of attention but hold just 13 percent of prisoners. In the states, meanwhile, counties generally pay for probation and short jail stays while the state pays for the cost of imprisonment—creating an incentive for prosecutors to overuse the latter.

Reading Pfaff’s characterization of who’s serving how much time in prison these days—mainly violent offenders, mainly short sentences—one is tempted to wonder what the big deal is. Maybe we should just content ourselves with picking the “low-hanging fruit.” Yet it’s hard to accept our sky-high incarceration rate knowing it’s produced by the dysfunctional system Pfaff describes. Realigning the incentives in that system would be a worthwhile endeavor whether it cut incarceration or not.

Conservatives intuitively understood the need to rein in judges’ discretion decades ago; perhaps the same thing could be done for prosecutors today. Pfaff notes that New Jersey has given its prosecutors detailed guidelines as to the plea deals they are allowed to strike, with judges able to invalidate any deals that break the rules; they “look almost exactly like the guidelines that many states use to regulate judicial sentencing.” This is a promising idea, though the guidelines would have to be written carefully to avoid unintended results. (The New Jersey guidelines initially made it hard for urban prosecutors to give lighter sentences in “school zone” cases, for example, which was a problem because 76 percent of Newark is considered a school zone.)

Other options: cut mandatory sentences to reduce the threats prosecutors can make to extract plea deals; require prosecutors to disclose the threats they made so that judges can review them; balance out the incentives facing county prosecutors by paying counties to keep people out of state prison; appoint prosecutors instead of electing them; let cities and suburbs choose their prosecutors separately; fund public defenders adequately. Each of these moves would align incentives in a sensible way rather than seeking to cut incarceration per se.

And on a deeper level Pfaff prompts us to consider more carefully the exact tradeoffs we’re willing to make between incarceration and crime. One study, for instance, found that between 1978 and 1990, locking up an extra person for a year stopped 2.5 violent crimes and 11.4 property crimes. Thanks to diminishing marginal returns, those numbers fell to 0.3 and 2.7 respectively in the 1991–2004 period. Are the latter numbers worthwhile given the cost to taxpayers, and to offenders and their families? Is the payoff even lower today? And what if, for a given amount of money, you could reduce crime 20 percent more by hiring more cops than by incarcerating more offenders, as a different study contended?

For these reasons, Pfaff suggests we reject the assumption that reforms are worthwhile only if they don’t increase crime at all. It’s a point worth taking to heart as one considers some of Pfaff’s other reforms, the ones more directly targeted at reducing incarceration.

Risk-assessment tools [9] are one promising development. Modern statistics allow us to calculate the chances that a given prisoner will reoffend with a reasonable degree of accuracy, based on various characteristics. There are legitimate complaints about these tools (though Pfaff takes too seriously [10] an allegation of racial bias by the journalism outfit ProPublica), but they hold out the promise of focusing incarceration on the people who really need to be locked up lest they continue to offend. They are a dramatic improvement over the older, cruder tools like “three strikes” laws.

In a somewhat similar vein, pilot programs could experiment with releasing offenders and closely monitoring them, like the Hawaii HOPE program does for drug offenders, giving them repeated drug tests and a “swift, certain, and fair” jail stay for minor lapses.

Not all of the ideas Pfaff explores are home runs; I have trouble imagining an American state in which there’s a “cap-and-trade” system for prison capacity. But in general, these are far more serious and considered proposals for cutting incarceration than what we have seen from almost anyone else.

Pfaff’s book is targeted primarily at reformers, not skeptics. He believes the reformers misunderstand the problem and hence cannot solve it. He notes, for example, that many efforts to cut sentences for low-level offenders are coupled with increased sentences for those who commit worse crimes—which would address the problem described in the Standard Story but not the reality we actually face.

And in debunking the myth of nonviolent drug offenders haphazardly locked away for long periods of time, of course, he runs the risk of inadvertently convincing his audience there really isn’t much of a problem. He’s to be commended for taking that risk.

But, by forthrightly explaining the true nature of incarceration in America before laying out his case for reform, Pfaff poses a serious challenge for the skeptics, too. Unlike so many activists and op-ed writers, Pfaff cannot be waved away with a handful of simple statistics demonstrating that, no, our high incarceration rate isn’t the result of locking up first-time offenders caught smoking pot. He knows that, and still sees serious problems with the status quo. His ideas deserve a close look.

16 Comments (Open | Close)

16 Comments To "The Hidden Realities of U.S. Incarceration"

#1 Comment By Tim D. On May 16, 2017 @ 12:16 am

Kevin Drum (one of the few liberal authors I read) has made a very convincing case about the lead hypothesis, where exposure to lead dr
I’ve always found the most convincing argument for the rise in crime was the result of lead poisoning. Combined with other factors (e.g., massive job losses in various areas) caused the spike in crime. Apparently, this isn’t the first time something like this has happened too. Crime apparently skyrocketed in the late 1800s too.

#2 Comment By Tim D. On May 16, 2017 @ 12:18 am

Kevin Drum (one of the few liberal authors I read) has made a very convincing case about the lead hypothesis, where exposure to lead notable increases in crime. I’ve always found it a convincing argument. Combined with other factors (e.g., massive job losses in various areas) caused the spike in crime. Apparently, this isn’t the first time something like this has happened too. Crime apparently skyrocketed in the late 1800s too.

#3 Comment By Brian W On May 16, 2017 @ 10:05 am

Highest to Lowest – Prison Population Total Globally

Please use drop down menu 1 to choose the category of data you wish to view, and then wait for the page to reload. Once the page has reloaded please choose the continent/region from drop down menu 2 and then press apply.

Ranking – Title – Prison Population Total

1 – United States of America 2 228 424
2 – China 1 701 344
3 – Russian Federation 672 100
4 – Brazil 581 507

[11]

JAN. 24, 2014 This World Map Shows The Enormity Of America’s Prison Problem

About 2.4 million people live behind bars in America — the highest number in the world. That’s a little more than 0.7% of the population and more than 700 for every 100,000 people. The area of the U.S. is bigger than China, a country that dwarfs the U.S. general population by more than four times. Also note how tiny Canada looks next to the U.S.

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#4 Comment By Brian W On May 16, 2017 @ 10:25 am

October 25, 2016 Prison Food Contractors Funded Efforts To Combat Marijuana Legalization

All of these organizations have a distinct interest in keeping nonviolent people in jail. So, it should come as no surprise a prison contractor is working to keep marijuana illegal.

[13]

#5 Comment By MikeCLT On May 16, 2017 @ 11:01 am

“while incarceration has undoubtedly soared—even relative to crime, which has dropped substantially since the early 1990s”

Do you think the two (higher rates of incarceration/lower crime) are unconnected?

#6 Comment By Daniel On May 16, 2017 @ 12:01 pm

The problem is simple: Sin. The solution is simple: Jesus Christ.

#7 Comment By GregR On May 16, 2017 @ 2:06 pm

As a former prosecutor we had a grotesquely unfair advantage…

It was policy to charge someone with the highest possible charge, knowing that we would plead to something much lower. It was even added to the jacket by screening DA’s what was recommended to accept.

So someone would be looking at a charge of ‘simple possession x4’ meaning life in prison without any chance of getting out. If they pled with in 2 months it would be dropped to X1 so 2-4 years. Then ever two months the minimum acceptable time served would basically double.

You had to be an absolute idiot to fail to plead. Which then kicks in multiple offender charges the next time.

Nothing like starting off your career as an attorney sending drug addicts to prison for life.

#8 Comment By Nelson On May 16, 2017 @ 2:57 pm

I like this because it states the problem and makes reasonable suggestions about how to fix it without getting too political.

One thing that wasn’t mentioned though was lobbying by private contractors that own or service prisons, thus creating a profit motive (and campaign contribution motive) for making more things imprisonable offences.

Beyond that, the few people I’ve known that have spent time in prison also had substance abuse issues (DUI, theft to support a habit, getting in a fight while drunk, etc…) and a general disposition to not care about the long term consequences of their actions. Perhaps providing counseling and mental health care services could help. Or perhaps not, but it is a question worth exploring.

#9 Comment By Steven Sailer On May 16, 2017 @ 3:58 pm

Up through the turn of the century, prosecutors were extremely stressed dealing with the huge volume of crime so they tried to plea bargain a lot of charges. With the lower crime rates in this century, prosecutors have more time on their hands to get tough.

#10 Comment By Mia On May 16, 2017 @ 4:20 pm

“Instead, prosecutors use them as a threat to get defendants to plead guilty to lesser charges or testify against fellow criminals. (About 95 percent of cases end in plea deals rather than trials today.)”

This post is typically clueless conservative garbage about the real issues in the justice system. There’s a few other shills I’d love to call out for their dishonesty as “researchers” because they miraculously can’t even find out the most basic facts or controversies on the subject, but it just takes too much energy. However, it just borders on journalistic malpractice, and it needs to stop.

About this quote I pulled here. What you are talking about is called “charge stacking,” and prosecutors do it because they can strong arm everyone into a conviction, then they can build political careers on. Oftentimes, they go to run for AG offices based on their stellar records that the public is duped into thinking actually means something.

We have one out our way whose family is reportedly involved in a whole lot of shady business dealings, and he used his job to go after politicians who promised to clean house. I could go on forever about his unbelievably stupid press conferences about irrelevant stuff as if they were a papal announcement. He was pushing to do the AG promotion too. Then again, our former governor was said to be in the mob, so par for the course around here.

Don’t even get me started on the judges in our state serving 30 year sentences for bribery where they threw thousands of kids in jail for nothing. I think they made millions in destroying these kids lives. I have heard crickets about that scandal and other even funnier ones on any conservative site. It’s like coming to an alternate reality when I see articles like this.

Speaking of funny scandals, how about the kid who was charged with wiretapping who had just used his tablet to record bullies in class after no one in the school administration would do anything about them? Instead of addressing his concerns, they charged him with a felony! This seems rational and totally legal to you? Know what the sheriff or police authorities said when they go called out on that one in the media? No one had any idea how that got in the paperwork….You can’t make this sh** up. If they had never made the papers, chances are the kid would have spent time in jail or been forced to plea bargain. Why do you defend things like this? Why is it okay that this and worse goes on and is justified as necessary? Would you feel it was necessary if they did it to you? Heather MacDonald et al needs to take off her rose-colored glasses and see what’s really going down.

But anyway, what the prosecutors do (and did in my case) was withhold and/or ignore exculpatory evidence (or perhaps more accurately, reinterpret what evidence they had to come to the opposite conclusions than what the evidence said), then added manufactured evidence to create outrageous charges that the prosecutor even admitted to my lawyer was never meant to go to trial because he couldn’t prove anything and everyone would have to even more formally perjure themselves. This would be things like people coming forward saying they knew me for years when they didn’t know me at all, the kind of stuff that you see go on and wonder if it’s even possible to get a fair trial no matter how innocent you are. But you’re good with that, right? That seems like a reasonable thing for witnesses to do?

Better yet, he flipped the case so I ended up in a situation where the burden of proof was legally on me and I wasn’t allowed to have any defending witnesses, while the actual law requires the prosecution to prove its case in a courtroom and call a reasonable defense. The one judge in my case was also reprimanded for taking bribes in a different case, and she went really cheap, only a couple of hundred dollars, to drop charges that the AG later reinstated.

#11 Comment By mrscracker On May 16, 2017 @ 5:28 pm

MikeCLT says:

“while incarceration has undoubtedly soared—even relative to crime, which has dropped substantially since the early 1990s”

Do you think the two (higher rates of incarceration/lower crime) are unconnected?”
**************
Good point to ponder.
I remember back when offenders would be released over & over again to commit the same crimes. They still do to some degree, but people got fed up. And we ended up with the “3 strikes & you’re out laws.”
Non violent offenders should make restitution &/or be put to work. That especially goes for white collar crime. Why in the world should taxpayers have fed & housed Martha Stewart? Seriously.
I had a family member who worked in a “medium security” prison with rapists, child molesters, organized crime members, etc.
Trust me, those folks needed to stay locked up. They all had a story & excuses but deep down they knew they were guilty & were pretty much sociopaths. Very little conscience at work.

#12 Comment By EliteCommInc. On May 16, 2017 @ 6:37 pm

“The problem is simple: Sin. The solution is simple: Jesus Christ.”

This is an article that is asking me to be supportive of criminal behave should I challenge the system of criminal justice. Te subtle hint here is either support the system of you are supporting criminals.

I think it is entirely possible to disapprove of criminal behavior and remain suspicious of the methods and processes that are used. I oppose the entire contend about legalizing marijuana.

In my view that is neither the problem nor the place for solutions. No more my concern than high prison populations. The process of adjudicating justice is flawed on the ground floor. You won’t get around that with a book or an article that in short says,

People in prison deserve to be in prison. The one area that this author seems to examine is the plea bargain system. In my view that observation stand out as a means of short cutting justice.

#13 Comment By martin On May 17, 2017 @ 7:48 am

“while incarceration has undoubtedly soared—even relative to crime, which has dropped substantially since the early 1990s—”

Fox Butterfield, call your office, you are due royalties:
=
Mandatory minima are NOT. They are described, in United States Sentencing GUIDELINES (emphasis added), and give the sentencing judge discretion, for upwards or downwards departure, if the judge merely states a reason.

This happened in a case I assisted, as a paralegal, where I wrote a leniency letter, pre-sentencing, of the form – bwaa bwaaa bwaa the dog ate my homework, ie troubled lives

This was a federal prosecution of immigration (asylum) fraud, not a typo, 2d circuit NYC

=
The judge referenced the GUIDELINES discussion of (a) specific deterrence and (b) generalized deterrence

and said specific deterrence HAD been achieved but for generalize deterrence, there needed to be SOME punishment and 21 months became three

and probation etc

so let the judges do their jobs; and GUIDELINES invite judges to report back to the United States Sentencing Commission, if these GUIDELINES need to be changed,

instead we have show boaters playing to the crowd
=
and of course these lamentations and jeremiads herein are grandstanding noise, most prisoners are State not federal

but why spoil a good soap opera

#14 Comment By mrscracker On May 18, 2017 @ 4:24 pm

EliteCommInc. says:
People in prison deserve to be in prison. The one area that this author seems to examine is the plea bargain system. In my view that observation stand out as a means of short cutting justice.”
*************
I’ve commented on this before & won’t repeat the whole story but I had the disturbing experience of interacting with a serial killer through my job. He had plea bargained his first murder down to involuntary manslaughter. That let him free to go kill & sexually mutilate several more women out of state. So, I’m no fan of plea bargains.

#15 Comment By Fran Macadam On May 19, 2017 @ 7:20 am

Since this country has the highest levels of incarceration in the world, it means it is not the most liberty loving on the planet, but rather the least. If almost all in chains deserve to be imprisoned then it clearly means America is truly exceptional, in having the most criminal general population in the entire world.

It might be that “Crooked Hillary” and the accusations against Trump mean that they are highly representative of the general criminal propensity of most who immigrated over the centuries to this continent.

Is American lawlessness, in the land of the most lawyers and laws in the world, nature, or nurture?

As someone quipped, in America you could either end up in jail, or in Congress or the White House, for exactly the same behavior. Maybe it was Yakoff Smirnov – truly, “Whadda country.”

Does America value liberty? How much? Its elite calculus, trickled down to the masses is that greed and accumulation of money are valued above all else, no matter how obtained. This means that the richest and thus most influential, are able to pay to make their schemes completely legal, while the mass of jail fodder cannot.

Prison business, like warmaking, the ultimate for profit business, is lucrative. Elite greed in exporting and offshoring jobs also meant more proletarians turned to criminality to survive in an absence of legitimate employment. Imprisoning them itself became an alternative jobs program and tempting franchise opportunity. And having a ROI where private prison corps pay prisoners $1 a day while getting their labor to make them $300 is an incentive to grow the prison business by finding more prisoners to feed the system. Why, children are pipelined into it right from grammar school.

Gekkonomics, “greed is good,” the miscreant economic theory that private sin leads to public virtue, versus God’s warning that the love of money is the root of every other evil.

No matter how big a stack of Bibles the President swore on at his inauguration to try to reconcile those two opposite religions.

#16 Comment By Fran Macadam On May 19, 2017 @ 11:33 am

“Why in the world should taxpayers have fed & housed Martha Stewart?”

Why was Martha Stewart even in jail? They couldn’t get her for any particular actual crime, so they accused her of lying to them, while all the while lying to her.

You see, it is a crime to lie to them, no matter how fearful or confused you might have become even if innocent, while they are allowed to commit every deceit in order to elicit entrapment. As Comey put it, any one targeted has given up the right to the truth.

Question authority, before they question you.