The reality of mass incarceration

I’ve been meaning to read John Pfaff’s Locked In since it came out last year.  I assigned it for my PS 313 Criminal Justice Policy “book club” to make sure that I finally would.  It was excellent.  I read so much about politics and policy that it is a rare book that opens my eyes.  This one did.  That said, this German Lopez (of course) Vox article is a terrific summary of the key points.  If you think you know mass incarceration, read it.  Short version: mass incarceration is not about non-violent drug offenders.  It’s not about extremely long sentences (though we have too much of those).  It’s mostly about prosecutors becoming far more zealous in prosecuting people for violent felonies.  You want to deal with mass incarceration, you have to deal with 1) prosecutors, and 2) how we think about violent crime.  Some key highlights from Lopez:

There’s a “Standard Story” that many Americans, particularly on the left, believe about mass incarceration: During the 1970s and ’80s, the federal government dramatically escalated its war on drugs. This alone led to millions of people getting locked up for fairly low-level drug offenses, causing the US prison population to spike. This new prison population is predominantly black, leading to massive racial disparities in the criminal justice system. And all of this happened, not coincidentally, right after the civil rights movement — showing the rise in incarceration was a ploy to oppress black Americans just after they made huge gains.

But in a new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, Fordham University criminal justice expert John Pfaff offers a trove of evidence that this narrative is by and large wrong or, at the very least, misses much of the real story.

The “Standard Story” of mass incarceration, as Pfaff calls it, was largely popularized by a 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander. Pfaff goes through many facts and statistics to show that this Standard Story gets a lot wrong about the causes and realities of mass incarceration, from the types of crime that people are locked up for (in reality, largely violent offenses) to the areas in which reform is truly needed (with a focus on state and local, not federal, reform).

“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,” he writes. “As a result, it gives too little attention to the more mundane-sounding yet far more influential causes of prison growth.”

The story that Pfaff carefully describes is different from the standard narrative: It’s not drug offenses that are driving mass incarceration, but violent ones. It’s not the federal government that’s behind mass incarceration, but a whole host of prison systems down to the local and state level. It’s not solely police and lawmakers leading to more incarceration and lengthy prison sentences, but prosecutors who are by and large out of the political spotlight.

And an excerpt from a Marshall project article:

Pfaff’s major data epiphany was that, during the 1990s and 2000s, as violent crime and arrests for violent crime both declined, the number of felony cases filed in state courts somehow went up. A lot. “In the end, the probability that a prosecutor would file felony charges against an arrestee basically doubled, and that change pushed prison populations up even as crime dropped,” he writes.

Pfaff suggests several explanations for this. There were tens of thousands more prosecutors hired across the country in the 1990s and aughts even after the rising crime of the 1980s had stalled out, and the position of district attorney simultaneously became a more politically powerful one. Prosecutors’ discretion, always great, was expanded by courts and legislatures. And public defenders, stuck at the same or lower levels of funding, have not kept up with the growing caseload.

Reformers have overlooked the role of prosecutors, Pfaff reasons, in part because there is no good data on how they use their discretion, and in part because they are simply less visible; about 95 percent of cases end in plea bargains worked out behind closed doors. “We see the police every day; no one is more high-profile in the criminal justice system,” he said in an interview. “Then we think of the judge imposing the sentence.” But prosecutors, and how they work, remain something of a mystery.

Pfaff’s plea, then, is for advocates of reform to look for ways to curb the aggressiveness of prosecutors. He offers a tentative menu of options: establish guidelines for charging and plea bargaining, which New Jersey has already done; make prosecutors pay from their county budgets for the bed space they use in state prisons; and provide more funding for public defenders. And, last but not least, attack public complacency. In 46 states, prosecutors are elected — and 85 percent of them run without opposition. But last year, with money from philanthropist George Soros and energy from Black Lives Matter, insurgent district attorney candidates touting reform prevailed in several cities. And the American Civil Liberties Union has mapped out a three-year plan to increase public scrutiny of prosecutors.

And, just because I’m at it, nice summaries in The New Yorker and The Atlantic, too.

I’ve learned a ton just from following Pfaff on twitter.  If you want to better understand criminal justice in the U.S., you should, too.

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Quick hits (part I)

1) Wow.  Quite the takedown of Jordan Peterson from a former friend and mentor:

‘I thought long and hard before writing about Jordan, and I do not do this lightly. He has one of the most agile and creative minds I’ve ever known. He is a powerful orator. He is smart, passionate, engaging and compelling and can be thoughtful and kind.

I was once his strongest supporter.

That all changed with his rise to celebrity. I am alarmed by his now-questionable relationship to truth, intellectual integrity and common decency, which I had not seen before. His output is voluminous and filled with oversimplifications which obscure or misrepresent complex matters in the service of a message which is difficult to pin down. He can be very persuasive, and toys with facts and with people’s emotions. I believe he is a man with a mission. It is less clear what that mission is.

In the end, I am writing this because of his extraordinary rise in visibility, the nature of his growing following and a concern that his ambitions might venture from stardom back to his long-standing interest in politics. I am writing this from a place of sadness and from a sense of responsibility to the public good to tell what I know about who Jordan is, having seen him up close, as a colleague and friend, and having examined up close his political actions at the University of Toronto, allegedly in defence of free speech. When he soared into the stratosphere he became peculiarly unknowable. There is something about the dazzle of the limelight that makes it hard to see him clearly. But people continue to be who they are even in the blinding overexposure of success. I have known Jordan Peterson for 20 years, and people had better know more about who he is.

There is reason to be concerned.

2) Great NYT Editorial… “If Addiction Is a Disease, Why Is Relapsing a Crime?”  Hell, yeah!

When Julie Eldred tested positive for fentanyl in 2016, 11 days into her probation for a larceny charge, she was sent to jail. Such outcomes are typical in the American criminal justice system, even though, as Ms. Eldred’s lawyer has argued, ordering a drug addict to abstain from drug use is tantamount to mandating a medical outcome — because addiction is a brain disease, and relapsing is a symptom of it.

Ms. Eldred’s case, now before the Massachusetts Supreme Judicial Court, has the potential to usher in a welcome change to drug control policies across the country. The case challenges the practice of requiring people with substance use disorders to remain drug-free as a condition of probation for drug-related offenses, and of sending offenders to jail when they relapse.

The prosecution’s counterargument — that the disease model of addiction is far from settled science — is weak.

3) Ummm, so this is bizarre and true.  Medieval obsession with the holy foreskin of Jesus.

4) I was recently talking about the horrible, horrible case of race and the war-on-drugs-gone-really wrong in Tulia, Texas twenty years ago.  If you don’t know about this, you should.

5) Good to know that taxpayer dollars in NC are being used to subsidize religious schools that teach the 6000 year-old earth as science.  Ugh.

6) I like Drum on the gay wedding cake ruling:

Now, sure, the cake store was not a private club. It was a public place of business, and there’s jurisprudence on what kinds of places are covered by the Civil Rights Act and what kinds aren’t. And portraits aren’t cakes, which are merely being used at an event, not necessarily carrying a message of their own. Still, it should be pretty obvious that there are subtle issues here that are all but impossible to decide on a bright line basis. Can a Jewish baker be forced to supply a cake for a KKK rally? Can a Christian sandwich shop be forced to cater a Planned Parenthood fundraiser? Can a gay movie star be forced to sign an autograph for Richard Spencer?

There are rules that would cover all these cases that the Supreme Court could adopt. But why? For the most part they never come up, and when they do they’re generally just ignored because they’re so obviously heinous. So perhaps the better part of valor is just to tap dance for a while. Soon enough, refusing to serve a gay couple will be broadly viewed as equally heinous and the issue at stake will simply disappear. In the meantime, there’s no need to make a potentially disastrous ruling.

I think this is what happened, and even half the court’s liberals decided to go along. They figure it’s basically an ephemeral issue, and both liberals and conservatives have good reason to let it slide since any definitive new ruling would almost certainly hurt everyone in one way or another. Instead the court decided to muddle along until everyone forgets the whole thing, and that was likely a wise decision.

7) The stupidity of our drug and health care policies in one headline, “She paid nothing for opioid painkillers. Her addiction treatment costs more than $200 a month.”

8) This terrific graduation speech is even more reason to love the amazingly awesome Atul Gawande:

Insisting that people are equally worthy of respect is an especially challenging idea today. In medicine, you see people who are troublesome in every way: the complainer, the person with the unfriendly tone, the unwitting bigot, the guy who, as they say, makes “poor life choices.” People can be untrustworthy, even scary. When they’re an actual threat—as the inmate was for my chief resident—you have to walk away. But you will also see lots of people whom you might have written off prove generous, caring, resourceful, brilliant. You don’t have to like or trust everyone to believe their lives are worth preserving.

We’ve divided the world into us versus them—an ever-shrinking population of good people against bad ones. But it’s not a dichotomy. People can be doers of good in many circumstances. And they can be doers of bad in others. It’s true of all of us. We are not sufficiently described by the best thing we have ever done, nor are we sufficiently described by the worst thing we have ever done. We are all of it.

Regarding people as having lives of equal worth means recognizing each as having a common core of humanity. Without being open to their humanity, it is impossible to provide good care to people—to insure, for instance, that you’ve given them enough anesthetic before doing a procedure. To see their humanity, you must put yourself in their shoes. That requires a willingness to ask people what it’s like in those shoes. It requires curiosity about others and the world beyond your boarding zone.

We are in a dangerous moment because every kind of curiosity is under attack—scientific curiosity, journalistic curiosity, artistic curiosity, cultural curiosity. This is what happens when the abiding emotions have become anger and fear. Underneath that anger and fear are often legitimate feelings of being ignored and unheard—a sense, for many, that others don’t care what it’s like in their shoes. So why offer curiosity to anyone else?

Once we lose the desire to understand—to be surprised, to listen and bear witness—we lose our humanity.

9) A prisoner-journalist on the mental health crisis in our prisons.  Yes, it is that bad.

10) Jonathan Bernstein on California’s misguided top-two primary system:

Even if the system avoided each of those problems, it would still be a bad idea because the fundamental concept is to disrupt the ability of parties to choose their own nominees. And that’s a mistake: Parties are necessary to all large democracies. Parties activate and accommodate participation from groups and individuals; they provide critical intermediation between political elites and voters, which in turn makes representation possible; they help organize government and opposition ideas about public policy; and they simplify the often-bewildering choices voters must make.

And what we’ve learned is that parties adapt, no matter how difficult government makes it for them to function. We’ve seen that in California this year, with both Democrats and Republicans finding all sorts of ways to try to get the candidates they want into the November election. However, not all ways of organizing parties are equally healthy or equally permeable, and I worry about the effects of all of this on California’s Democrats and Republicans. Nor does it really make sense to constantly force parties to re-invent the wheel.

It’s a lousy system. The sooner the state gets rid of it, the better.

11) In the latest version of NC Republican legislators know best, they are trying to pass a law that a drink can only be called milk if it comes from a “hoofed animal.”  Hmmm, tell that to babies ;-).  Anyway, supposedly a lot of people are confused that soy milk and almond milk come from cows.  Not sure I buy that.  While I’m at it, it always does mystify me that soy milk has a nutrient profile relatively similar to actual milk, but most of the others are sorely lacking in protein.

12) NYT on the Trump administration, “Grifters gonna grift.”  Forget draining “the swamp.”  How about filling it with pollution and dead bodies.

13) Found this New Yorker article on the science of baldness cures (and maybe some new hope on the horizon) really interesting.  I figure it’s too late for me, but hopefully some new innovations in time for my boys to benefit.  It has always bugged me that somehow baldness is about the one physical characteristic for which it is socially acceptable to make fun of people.

14) This is an encouraging headline, “Sucking carbon dioxide from air is cheaper than scientists thought.”

15) New Yorker post on Elizabeth Warren’s coming anti-corruption agenda (now that’s a damn good idea right now), but what I really loved was this from Warren:

The point seems obvious, but it bears repeating: while much of the press, and therefore the country, is preoccupied by the President’s daily outbursts on Twitter and by the leaks and twists of Robert Mueller’s investigation into Russian interference in the 2016 election, Donald Trump and the Republican-controlled Congress have been aggressively rolling back regulations of all kinds. The effects of some of these changes may not be directly felt by the voting public for years, when a major health crisis, a financial collapse, or some other catastrophe suddenly arrives, but the risks are being created right now.

“Let’s talk about real freedom,” Warren said, during her speech. “Done right, strong, clear regulations protect the freedom of every American. How free would you be if companies were allowed to lie to you about their businesses in order to trick you into investing your life savings in their stock? How free would you be if no one had to wash their hands before they handled your hamburger? How free would you be if companies could pass off little white pills as antibiotics, even if they weren’t?” Finally, she said, “Don’t tell me that all rules do is restrict freedom. Good rules empower people to live, work, and do business freely and safely.” [emphasis mine]

16) Radley Balko taking down forensic “science” never gets old for me.  Alas, I wish our damn court system would start paying attention and stop allowing convictions on what might as well be astrology in some cases:

The most problematic fields of forensics are those known as the pattern matching fields. This includes any specialty that requires an analyst to look at one sample and “match” it to another. Think hair and carpet-fiber analysis, bite-mark analysis, shoe-print and tire-tread analysis, blood-spatter analysis and fingerprint matching. The degree to which these fields are problematic vary quite a bit (bite-mark matching is probably on the least reliable end of the spectrum, with fingerprint matching at the other end), but all at their core are subjective. (Fingerprint matching breaks down the moment you start looking at partial prints.) That means they cannot calculate a margin for error. It means analysts will often disagree about conclusions, sometimes in ways that directly contradict one another. And by definition, any method of analysis that results in experts coming to contradictory conclusions about the same piece of evidence can’t possibly be accurate (one of them is obviously wrong) or reliable.

This means that these fields aren’t science. That doesn’t mean they have no evidentiary value at all. But it does mean that analysts need to be extremely careful about how they present this sort of evidence to juries. The language they use needs to be standardized and then explained to juries, so that the amount of emphasis the jury puts on it is based on the evidence’s actual significance and not other factors, such as the charisma or persuasiveness of the analyst. This hasn’t been happening.

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