*Locked In*

Locked In is a book by John F. Pfaff, a Professor of Law at Fordham, subtitled “the True Causes of Mass Incarceration and How to Achieve Real Reform.” In Locked In, Pfaff critiques the current “criminal justice reform” movement, pointing out that, no, the “war on drugs” is not the cause of “mass incarceration,” most prisoners are there for violent and/or property crimes. But are those criminals being given crazily harsh sentences? No, the average sentence actually served, once early release is accounted for, is short, and hasn’t gone up by much since “mass incarceration” begun. This may seem to you like a good argument that America’s current amount of incarceration is about right, but to Pfaff this just means alternative strategies must be used to reduce the incarceration rate. This is his goal, and he doesn’t spend much ink in Locked In to argue for it’s desirability, assuming that the reader agrees with it. Despite this goal, I found Locked In to be a valuable as a serious treatment of incarceration, the book provided a convincing answer to the question of why, starting around 1990, incarceration increased as crime declined. On the criminal justice system, Pfaff is a realist, critical of the falsehoods spread by the “reform” movement. Pfaff would do well to apply that critical thinking to other areas, fifty years after the Coleman Report, Pfaff writes in several places about the “under-performing” schools Blacks must go to. I would recommend the book as a type of “gateway drug”(pun intended) for the more open minded of liberals and libertarians. This blog post is both a review of Locked In and an elaboration of my own thoughts about the criminal justice system. If in this blog post you read a statement by me that I do not attribute to Pfaff, it’s probably my idea/opinion, not Pfaff’s.

Introduction: Common Pitfalls

I have noticed three common pitfalls that occur when analyzing crime. One is the common practice of cherry picking the year 1990 to start in charting crime, which shows the decline in crime during the 1990s and hides the prior increase from 1960-1990. When they start at 1990, they can ignore the effect of increased crime on incarceration. If crime is falling, it must be that the system has become more punitive. But when analyzing “mass incarceration,” they start at a much earlier date. In terms of the difference between the 1960 and 2010 levels of incarceration, by 1990 the rate had made it to about halfway there:

Sources: [2] for the American population by year, [3] and the “quick tables” for the number of prisoners after 1978, and page 2 of [4] for the number of prisoners prior to that date.

Pfaff does not ignore the rise in crime from 1960-1990. He states plainly that, in reference to mass incarceration “one clear cause was rising crime.”[pg 3]

The second pitfall is comparing the incarceration rate with the crime rate in a given year and assuming that they ought to rise and fall in tandem. The problem is that, whereas the crime rate in a year measures only crimes committed during that year, the incarceration rate is caused by the behavior of the system in the years preceding that year, sometimes going back decades. If a murder was committed in 1990, it would be counted in that year, but if the murderer was not caught and imprisoned until 1994, and ultimately served 25 years, his crime would be counted in the 1990 crime rate, but his incarceration would span the period of 1994-2019, and would be counted in every year of that period’s incarceration rate.

Instead of analyzing the number of prisoners incarcerated, you can analyze the number admitted to prison in any given year. However, there is another problem that makes the admission rate unreliable for measuring true incarceration, it accounts only for how many are imprisoned in a given year, it does not account for how long they stay there. If two nations have the same amount of crime, and the same probability that criminals will be arrested and imprisoned, but one sentences its prisoners to terms which are twice as long, they will have the same admissions rate but very different incarceration rates. If, however, you are comparing one country across two time periods, and can convince yourself that the length of the sentences has not changed, then the admissions rate becomes an approximately accurate measure of total incarceration. Pfaff assumes this, and I will explain it further later in this post.

Using the admissions rate  as a proxy for incarceration makes the previous problem of the first pitfall even worse. This is a graph of the admissions rate, reproduced from Locked In and modified to account for population growth:

Sources: Pfaff, page 58 and [2] for America’s population by year and [3] and “quick tables” for prison admissions.

This graph looks very different from the first graph of only the incarceration rate, whereas the incarceration rate seemed unresponsive to the peaking of crime in 1990, the admissions rate shows a clear response. And as you can see, virtually all of the increase in admissions from 1960 to 2015 occurred prior to 1990. Does this mean that all of the increase in incarceration can be accounted for by the pre-1990 increase in crime? No, crime was significantly higher in 1990 than it was in 2010, so one would expect significantly fewer admissions in 2010. The system still seems to have gotten more punitive from 1990-2010, and explaining this increase forms one of the main themes of Locked In.

In the introduction to the book, Pfaff shows the reader a graph of the incarceration rate divided by the crime rate similar to this graph, which is my recreation(the scaling is a bit different):

Sources: [2] for violent and property crimes, [3] and the “quick tables” for the incarceration rate after 1978, and page 2 of [4] for the incarceration rate prior to that date.

One can see the loosening of sanctions on criminal behavior under the rule of 60s ideology and the slow reversing of this. When defining “mass incarceration” by the incarceration rate divided by the the crime rate, Pfaff writes that “incarceration doesn’t turn “mass” until sometime in the late 1990s or 2000s, well into the crime drop that begun in 1991.”[pg 9]

I attempted to create a similar chart using the admissions rate, rather than the incarceration rate, however I could not find reliable data which went back to 1960. This article, published by the Justice Department in 1983, contradicts the current admissions data considerably where they overlap. Thus, this chart only goes back to 1978:

Sources: [2] for violent and property crimes and [3] and “quick tables” for prison admissions.

The pattern of greater apparent harshness from 1990 to 2010 is still there.

The third potential pitfall is to treat the “crime” rate as a measure of the number of criminals offending, which it is not, rather than what it is, a measure of the number of victimizations. To see the difference, suppose the number of criminals expands by four times, but better police work means that, instead of committing 6 crimes before being caught, each criminal now is only able to commit 3 crimes before being caught. The “crime rate,” which is proportional to the number of crimes committed, would expand by two times, but the incarceration rate would expand by four times. Someone comparing the incarceration rate to the crime rate might assume that the system must be becoming more punitive since the incarceration rate is rising faster than the crime rate, but in fact it isn’t. If, in this hypothetical, you compared the incarceration rate to the arrest rate, you would see this, they both rose in tandem.

To find out if this presents a problem, I created the following graph which compares the arrest rate to the crime rate for all violent crimes:

Sources: [2] for numbers of crimes, [5] for numbers of violent crime or property crime arrests, select “national estimates,” then “trend tables by sex,” select “both sexes” and then “violent crime index” or “property crime index.”

There are two causes of the measure: the percentage of crimes which are “solved” and the number of offenders per crime.(If three people jointly commit a murder, you have one murder, three murderers.) There is a lot of variation by year, to account for this variation, I took the average of the measure across the periods of 1980-1989, 1990-1999, and 2000-2009, producing the following numbers for violent crime: 38.3% for the 1980s, 41.6% for the 1990s, and 43.2% for the 2000s. Suppose that a year in the 2000s had the 1980s average for the ratio of arrests for violent crimes to violent crimes. It would have 9% fewer arrests. For property crimes, on the other hand, the pattern is different, a year would have 7.4% more arrests. In 2010, there were 2.9 times more violent than property offenders imprisoned,[[6], table 9] so the total amount or reduction in incarceration, had the ratios of the 1980s held in the 2000s, and assuming the same 2.9 ratio was present throughout the 2000s, you’d have 4.8% fewer arrests for property and violent crimes only, and, if you assumed the probability of incarceration once arrested didn’t change, you’d have 4.8% fewer incarcerations for those crimes. Note that we can’t do this type of analysis for other types of crimes, such as drug crimes, because these crimes are “victimless.”

This is a real effect, but not a particularly large one, it cannot account for much of the apparent increase in harshness from 1990 to 2010. Recall the earlier graph of admissions scaled to the crime rate, here is the admissions rate scaled instead to arrests:

Sources: [3] for prison admissions and [5] for numbers of violent crime or property crime arrests, select “national estimates,” then “trend tables by sex,” select “both sexes” and then “violent crime index” or “property crime index.”

So what is it? Pfaff’s answer is an increasing probability that, if a suspect is arrested, felony charges will be filed. First, however, I’ll review Pfaff’s response to potential objections involving the “war on drugs” and longer sentences.

The Standard Story

Pfaff calls the consensus view of the reform movement the “standard story.” Central to the standard story is the war on drugs, which many believe to be the leading driver of incarceration. In reality, the data to disprove this view is easily available, prisoners who are incarcerated for drug-related crimes are roughly 20% of the inmate population, and Pfaff shows that many are only charged with drug offenses because they plead down after having committed violent crimes. Even if every single of these prisoners was released, America would still have the largest incarceration rate in the world. Pfaff addresses an argument often made by libertarians that the drug war indirectly causes crime by incentivizing gang-related turf wars. Though he cannot disprove this claim, he is skeptical of whether those gang members would be non-violent in absence of the illegal drug market. What percent of homicides are considered gang related? The 2008 figure was 6%.[7] This is likely an underestimate, as the circumstances of many murders are unknown. Even assuming, generously, that the measure misses half of gang murders, 88% of murders still have nothing to do with gangs. Might that 20% of the population who are incarcerated for drug crimes account for some the apparent increase in harshness during the 1990s? No, Pfaff shows that while the percentage of the inmate population convicted of drug offenses increased the during the 1980s, it peaked around 1990, held steady during the 1990s, and declined during the 2000s.[pg 31]

Another “standard story” argument involves parole. Many are sent to prison for parole violations, but, Pfaff shows, the percentage of inmates who are re-imprisoned for violating parole has not increased very much, the increase which did occur was in the 1980s.[pg 38-39] And for these parole violations which resulted in re-imprisonment, Pfaff cites a study to show that the majority were arrested because of a new arrest or crime, just 18% were sent back either for possessing drugs(itself a crime) or failing or missing a drug test.[pg 40]

Pfaff then moves onto the question of prison terms and the “standard story” belief that they have gotten longer. About time spent in prison, Pfaff writes that “there’s no real evidence that it grew much as prison populations soared.” He then writes that “If I surveyed people and asked them, “How long do you think a robber or drug dealer spends in prison?” the answers would most likely exceed what happens in practice, perhaps by a significant amount.”[pg 55] He then presents this chart of time to release for prisoners convicted of the following crimes(his is in days, I converted it to years):

time served

Source: Pfaff, pg 56, note that the 75th percentile of those imprisoned for armed robbery in 2010 were still imprisoned at the time the data was tabulated.

One could certainly “reduce incarceration” by reducing the sentences imposed, with the sentences already so short, a 25% reduction wouldn’t add up to that many months. That solution would, however, be missing the point, because according to Pfaff:

lt’s likely that many of the collateral costs of admission max out pretty quickly. The diminished job prospects and strained familial relations that come from being in prison are probably about the same whether one spends twelve months in prison or eighteen months. It’s the very act of going to prison that imposes the biggest costs. Some collateral sanctions, like the inability to apply for some jobs, don’t even require admission to prison-a felony conviction is enough. All of which means that we should worry at least as much about the number of people passing through prison as we do about how long they are staying there. The current focus on cutting prison populations by cutting time served misses this point almost completely.[pg 69]

To demonstrate that actual time served has not gotten much longer, I graphed the incarceration rate as compared to the admissions rate, that is, chart 1 divided by chart 2:

This is a rough measure of the mean number of years a prisoner will spend in prison, and it’s about two years. This measure is however problematic in times of increasing or decreasing crime. Suppose that in year 1, 50 people are admitted, in year 2, 100 are admitted, and in year 3, 150 are admitted, all will serve exactly 3 years, so that, in year 3, there are 150 individuals admitted and 300 incarcerated, for an incarceration/admission ratio of 2.0, even though every individual will serve exactly 3 years. Likewise, if there are 150 admissions in year 3, 100 in year 4, and 50 in year 5, by year 5, you will have an incarceration/admission ratio of 6.0. The real rate of crime shifts, of course, is much less than that, and so the shift in the incarceration/admission ratio will be much less.  If you compare the incarceration rate not to admission rate in that year but to the admission rate over the previous four years a different pattern emerges, the apparent increase in harshness after 1989 is no longer there. This is due to the rapid rise in admissions until around 1990, recall chart 2, and the slower decline of admissions begging in 2006, together, these make the chart “smoother:”

Pfaff’s Thesis

This all leaves only one possibility: that the increasing ratio of admissions per arrest is caused by an increased probability that, once an individual is arrested, imprisonment will result. And within this window of time between arrest and imprisonment, it was only the probability that felony charges would be filed which changed, once charges were filed, the probability that the result would be a prison admission remained “almost perfectly unchanged.” What are these probabilities? According to Pfaff, the probability that felony charges would be filed against an arrestee rose from 1 in 3 in 1994 to 2 in 3 in 2008. Once felony charges are filed against them, the probability that incarceration will be the result is about 1 in 4.[pg 71-72] That only 1 in 4 people against whom felony charges are filed are imprisoned would surprise the average person, as with Pfaff’s table of time served, the perception of the system is harsher than the reality. Pfaff shows the following chart of the ratio of admissions to prison to arrests for the following crimes:

admis to arrest

Source: Pfaff, pg 74

So why have prosecutors decided to prosecute more people? It’s somewhat anticlimactic: Pfaff simply doesn’t know.

One obvious explanation would the number of prosecutors. From 1970 to 1990, a time when government employment was increasing, the number of prosecutors per capita actually fell, increasing in absolute numbers from 17,000 to 20,000.  Something changed between 1990 and 2007, as the number rose both in per capita and absolute terms, from 20,000 to 30,000.[pg 129] Perhaps it is the mundane explanation that more prosecutors will have more time to prosecute more people? On the other hand, keep in mind that only a small fraction of cases actually go to trial, most end in plea bargains. Was there, in 1990, a relative shortage of prosecutors? What would have kept it that way? The number of prosecutors has always been small compared to, for instance, the number of cops, so why would it be the bottleneck?

In the case of aggravated assault,(where the ratio of admissions to arrests went from .06 to .16 from 1991 to 2011) it may be caused by different victim behavior. Ironically, the cause of this could be the fact that the population is less criminally inclined, the less criminal you are, the more likely you are to press charges after an assault.

Another cause, Pfaff suggests, is the fact that more people have longer criminal records. Though this doesn’t seem to have resulted in longer sentences, perhaps it is increasing the probability that charges will be filed, which itself will lead to more people with longer records, and so on.[pg 136] Pfaff also suggests that it may simply be better evidence gathering by police, including the now ubiquitous surveillance cameras. This is what I think is most important, but there’s another possibility that Pfaff doesn’t consider: that prosecutors have gotten less liberal over the years.

By “less liberal” I’m not talking about voting behavior, of which I have no idea. I’m talking about beliefs, the kind that people actually act on. In the 1960s, the American ruling class really did believe in liberalism. They thought punishment was counterproductive, segregation was the cause of Black criminality, poor schools led to poor test scores, ect. But as these beliefs led to disaster after disaster, belief weakened, but did not disappear. Belief is never on-off, it’s more a spectrum. For them, belief in liberalism moved from a certainty that they believed to be universally applicable to a belief that was seen as the morally correct goal, popular with all the right people, but not universally applicable, a goal for the distant future, a goal for someone else, the politician, the economist, or the educational bureaucrat, it’s for him to implement. So, for the liberal prosecutor, belief shifted from that in which criminals were the literal victims of society, perhaps framed by those racist cops, to a more abstract, “criminals are bad people, but they are the product of some kind of messed up social-economic system which will be reformed shortly, perhaps with the Obama election, but these particular criminals must be imprisoned.”

Is it clear what I’m trying to say here? There was a gradual cycle, as the initial hope of the civil rights movement gave way to white flight to the suburbs, which led to seeds of intellectual doubt, which led to guilt, which led to fighting even harder to make it right some other way, which was, for many, the soft-on-crime policies of the Crime Wave Era, but eventually, a new generation arose, one in which no one felt guilt for not participating in the civil rights movement, where growing up in the suburbs was seen as the default, and these people couldn’t see why the system should let people who were clearly guilty go free.

I’ll be the first to admit this is an unfalsifiable hypothesis.

In focusing attention on the prosecutor, perhaps it’s Pfaff’s purpose to try to recreate the environment of the Crime Wave Era, when prosecutors felt the heat not to prosecute.

Solutions

With the main causes of “mass incarceration” established as being higher crime and a greater likelihood that charges will be filed against an arrestee, Pfaff moves onto solutions for the “problem” of mass incarceration in the second part of the book. The previous chapters did make a good case for what “needs to be done,” the punishments for crimes currently punished by 1.3 or so years need to go down to 0 years, to probation or anger management classes or some other non-incarceration option. Or, even better from Pfaff’s point of view, to having the charges dropped entirely, so that the criminal not only avoids prison, he avoids the “stigma” of a conviction. Pfaff finds himself continually coming back to the solution of a cultural change in how crime is viewed, so that prosecutors, and the voters who elect them, view crime the way he views it. This paragraph is as good as any at explaining how Pfaff sees crime:

When deciding whether or not to charge someone with a crime, or whether to seek prison time or something less restrictive, prosecutors can make two types of errors. In some cases, they will fail to send someone to prison who should have been sent there, and that person will commit a future crime that could have been prevented if only the prosecutor had been more aggressive. Call this a “false-negative” result (the person was incorrectly identified as not being a risk, with “not risky” being a “negative” result). Conversely, they will treat some people as high risk who are not, and thus lock up some low-risk people who could have successfully remained in the community. These outcomes are “false positives.” The goal of the criminal justice system is to balance, in some way, the costs from both of these types of mistakes. 

In theory, we should be more concerned by false positives (being overly harsh) than false negatives (being too lenient). As Voltaire, William Blackstone, and Ben Franklin all said, in slightly different ways, “it’s better that ten guilty go free than that one innocent person be convicted.”[pg 167]

In these paragraphs, Pfaff completely ignores reasons to punish apart from incapacitation, writing as if locking up an innocent person were comparable to locking up a guilty person who, if he avoided prison, would not have re-offended. This ideology, determinism, is very common among the current intelligentsia, and, along with the ideology of anti-racism, is key to understanding why they are so sure that there are, morally speaking, too many people in prison. They acknowledge prison for it’s role at incapacitation, and may grudgingly do so for it’s role at deterrence, but don’t see a role for it in retribution, because they believe that, fundamentally, morally, people cannot be blamed for their actions, that they are the result of factors beyond their control. Theodore Dalrymple has written well about how this ideology has solidly seeped down into the criminal class themselves, though one cannot debate how much this is a cause of their behavior, as Dalrymple believes, rather than merely an excuse.

I will note, however, that Pfaff doesn’t ignore the notion of retribution in Locked In. He writes that “there are two primary policy justifications for punishing people for long periods,”[pg 190] these are incapacitation and deterrence. In a footnote, he notes that there are arguments for retribution, but states that these are “moral” and “philosophical” and thus are “beyond the scope of this book.”[pg 287] But if you want to convince people that the system should be more lenient, you must address people’s beliefs about punishment.

Pfaff is realistic about who will have to be the main target of any serious effort to get incarceration levels down to where they “should” be: chapter seven is entitled: “The Third Rail: Violent Offenders.” This means, of course, that politicians won’t advocate more leniency. I wondered if this is a clever pun, you won’t touch violent offenders and you sure as hell don’t want them touching you! An odd pun to make for someone arguing that we must go softer on violent offenders, is this book Straussian? Probably not. Pfaff appears to be just another liberal.(His Twitter is here.)

Who are the violent offenders? The majority are there for one of four crimes: murder/non-negligent manslaughter, forcible rape, robbery, and aggravated assault. Of the remainder, 60 percent are there for sexual offenses. Pfaff writes that current attitude toward sexual offenders “boil down to unrelenting harshness, even in this time of reform.” Indeed, as an example of this, Pfaff, who is clear about the need to punish violent offenders less, is silent about whether to punish sex offenders less. [pg 200-201]

Of course, this more realistic argument isn’t a very good one for convincing people of why incarceration is terrible, and indeed Pfaff makes arguments several times in Locked In to the tune of “sure, lock them up but….” as, for example, in these sentences:

(….)Incarcerating too many people, especially more minor offenders, can make a neighborhood less safe by undermining it’s “social control,” the extent to which the neighborhood can police itself. Obviously, serious violent offending undermines social control, but those who commit lesser offenses may provide more pro-social functions than their minor offending offsets.[pg 121]

In his chapter on “The Broken Politics of Punishment,” Pfaff identifies several “defects,” including his “false positive” problem and the fact that voters are “low information, high salience,” voting on the basis of a few salient “outliers” and being ignorant of what is really typical.[pg 169] This is true, though, as far as average length of time served, recall that Pfaff himself claimed that people’s beliefs are that the system is more harsh than it actually is, and so perhaps Pfaff should be careful what he wishes for.

Another defect is geographical, Pfaff writes, in this amusing bit of revisionist history(emphasis mine):

Another defect in the politics of punishment, one we have seen time and again in this book, is the complicated interaction of race, geography, and punishment. In general, people are pulled in two directions: they want to see those who offend punished to ensure their own safety, but they don’t want to see their friends, neighbors, and family members suffer the costs of avoidable or unjust punishment. One partial explanation, then, for why prison populations remained stable prior to the 1960s is that those who lived in high-crime urban neighborhoods—Irish, Italians, and other white immigrant communities—also tended to have political control over them, or at least over the local police and prosecutors. Those in charge of enforcement felt both the costs of unprevented crime and the costs of unnecessary punishment. In the postwar era, however, the Irish, Italians, and other whites began moving to the suburbs, while blacks—who were excluded from the suburbs—continued moving to northern cities as part of the tail end of the Great Migration. These shifting demographics, however, were not reflected in the criminal justice system, which continued to be dominated by whites. Those who exerted power in the criminal justice system were no longer bearing the brunt of the costs associated with either crime or enforcement. At first, the new suburbanites were indifferent to urban crime, and enforcement actually declined even as crime rose in the 1960s. The urban riots of the 1960s and 1970s, however, galvanized suburban voters. And because those suburban voters didn’t feel the costs of enforcement, they overreacted, at times strongly.[pg 171]

In reality, much of the White movement to the suburbs was caused specifically by Black criminality, unleashed, at least in part, by the liberal attitudes of the White elite and their decline in enforcement. And, in those suburbs, many continued to be victimized when they commuted back into the city centers. But making it look like the crime was something the White suburbanites only knew about because they saw coverage on TV allows Pfaff to portray them as outsiders, intruders in what should only be the realm of the Blacks.

There are many cities over which American Blacks have control, it would be interesting to see if they are any harsher than comparable White-ruled areas to people of comparable records. Pfaff, and everyone else, seems to believe so, I’m not so sure. No doubt Blacks believe that the system is more likely to punish an innocent Black and less likely to punish a guilty White, but when they are faced with a Black defendant that they believe to be guilty, will they treat him with greater leniency?

So what policy solutions does Pfaff suggest? Some solutions are decent, though it’s questionable how much they would help, like more data on prosecutor behavior and more funding for public defenders. Others are less realistic. For instance, he claims that:

Recall one of the more appalling facts in Jill Levoy’s Ghettoside. While the clearance rate(the fraction of crimes that result in arrest) for murder in Los Angeles County was about 50 percent, in poorer, more minority areas like South Central LA and Watts it was under 40 percent. Serious crimes are often seriously under-addressed.[pg 208-209]

Why are murders in minority Black areas so unlikely to be solved? The obvious explanation, to me, is the “no snitching” code observed by many minorities Blacks. But to Pfaff, this is due to police behavior, and thus he suggests that the state get them to focus more on murder, which Pfaff believes will eventually lead to a reduction in the murder rate and thus the incarceration rate. I’m skeptical. You hear this often with complaints about police behavior, people saying “focus on serious crimes like murder, not on drugs/speeding tickets/insert petty crime here.” In the movies the detectives know who the murderers are, after a few rounds of investigating red herrrings, they find the right person. In the real world, they often don’t have a clue who did it. So how do they solve those cases? The “strategy” they use is simply to harass investigate as many people for petty crimes as possible, and, eventually, you may find someone whose fingerprints match those found near the crime scene, or who knows something about the crime that the public doesn’t know, such as what type of gun was used. The result is a murderer arrested, but the cost is that hundreds of people were arrested and processed through the system for petty crimes.

How will the state get police to focus more strongly on murder cases rather than pettier crimes? Pfaff points to grants given by the state to focus on less important crimes, such as one by California governor Pete Wilson to go after statutory rape offenders in order to reduce the rate of teenage motherhood.(Feminism, ain’t it great?) He suggests instead that grants be given to pursue murder cases, but are there really areas where the prosecutors say “we can’t prosecute this murderer you’ve arrested, we don’t have the resources?” The detectives who investigate murders and the patrol cops who ride around in cars and give speeding tickets and arrest people for petty crimes are different people, and so a better strategy would be to simply hire more detectives and fewer patrol cops, though whether it would work is an open question.

Though Pfaff does not see the super-long maximum sentences as a major contributor to mass incarceration in the obvious way, most sentences are short, he claims they are frequently used by prosecutors to coerce people to plea guilty. “Coerce” is of course a controversial word to use, but when a prosecutor threatens an individual with 25 years and offers him only 5 years if he pleads to a lesser charge, what other word is there for it? One solution is to abolish plea bargaining, but Pfaff, writes, the “handful of jurisdictions that have attempted to abolish plea bargaining have quickly given up.” Trials are very expensive compared to plea bargains. Rather than doing away with plea bargaining, Pfaff suggests guidelines to be used to avoid the kind of huge disparities between the offer and the threat. This, I believe, is a sensible reform. I don’t know if it will reduce incarceration, it may even increase incarceration. Suppose, instead of being offered 5 years as an alternative to 25, the accused criminal is offered 5 as opposed to 6. He then goes to trial. But he is probably guilty. Though Pfaff does not state it in Locked In, I believe that he thinks, as I do, that the vast majority of accused criminals are clearly guilty. So the criminal risks another year in prison in return for the prospect of prompt release if acquitted,(criminals are quite present time oriented) and ends up with the extra year.(Though in both cases he is unlikely to serve his full sentence) The way it would reduce incarceration is if it results in less total resources available to conduct trials, and so forces prosecutors to drop cases. To avoid this (in my view) undesirable result, this reform should be paired with greater funding of local prosecutors. I’m sure many reform-minded legislators could be suckered into supporting greater funding if paired with this “reformist” solution.

Another questionable suggestion from Pfaff is to adopt a “front end tool.” “Tools” are software used by parole boards to consider whether to release inmates, a “front end tool” would be used by prosecutors to “consider a wide variety of options” in what to do with a specific accused criminal. The front end tool “would also need to take into account a greater range of of possible goals besides preventing recidivism, after all, in theory, a prosecutor is called upon to “do justice,” not just “minimize crime.””[pg 212] Pfaff acknowledges that the tools parole boards use don’t work very well in predicting recidivism, so why should we believe an even more complicated tool would work better? But if the goal is simply to nudge prosecutors to punish less, it may prove a very effective solution. People have an irrational faith in the effectiveness of both “experts” and in software in general. A prosecutor using such a tool would also have a perfect scapegoat in the event the person who was punished leniently re-offended. “Don’t blame me, blame the state for providing me with this faulty software!”

He then addresses what he calls the “moral hazard” that while states pay the cost of prison, it’s county-elected officials who make the decision to send the individual to prison. He suggests “realignment,” making counties pay more of the cost of imprisonment. This has already been done on a small scale in California, where, in response to the prison overcrowding, some lower level prisoners were sent to serve time in local jails. Soon, however, local jails started receiving state subsidies for the program, eliminating any incentive they had to reduce incarceration. As a political matter, this will be a non-starter, as a neighborhood with seven times the crime would have to raise seven times the resources from a poorer tax base to match the punitiveness of a wealthier area. If politicians in high crime areas didn’t think sending people to prison was a good idea, they’d stop doing it, but they are not going to sign on to be forced to stop. And wealthier, Whiter areas are not insulated from the effects of crime in other areas, not by a long-shot. It is often claimed that most crime is intra-racial, thus people assume that most victims of Black crime will be Black, but that is not entirely accurate. Most homicide is intraracial, but of less serious but much more numerous violent crimes, the number is far lower, only 40.7% of the victims of Black violent criminals are Black.[8]

Another questionable suggestion of Pfaff’s is to rely on private prisons to figure out how to rehabilitate prisoners, proposing to pay them based on how many prisoners are successfully “rehabilitated” after release.[pg 224-225] This is based on the assumption that there must be a better way of rehabilitation than the current regime of imprisonment, but Pfaff doesn’t go into detail about it would be. The private sector is supposed to figure out some clever solution that has thusfar eluded the public sector.

But it’s likely that there is no solution, no way to cut incarceration dramatically without increasing crime. Pfaff accepts this possibility, writing throughout the book that incarceration is so bad a phenomenon that reformers should be willing to reduce it even if it leads to more crime, but most people are not willing to do that. That’s not to say that crime can never fall absent biological changes, it clearly can and has over the past 25 years. But was that due to anger management classes, drug-rehabilitation programs, or other things the liberals like? I’ve seen no evidence that it was. The data indicates that crime is mostly a matter of biology and some other cultural/technological factor, a factor that is hard to predict in advance. Does crime have anything to do with unemployment or poverty? Whenever recessions happen, the hardest hit tend to be young males most likely to “turn to crime,” and yet the crime rate is seemingly unaffected, even in very radical cases such as the Great Depression and the comparable mass unemployment of young males which has occurred in Spain, Italy, and Greece since the start of the Eurozone crisis.

Conclusion

Pfaff found that the probability that felony charges will be filed against an arrestee who was charged with a felony increased by factor of roughly two between 1994 to 2008, and there was an increase of the same factor of roughly 2 in the ratio of admissions to crimes during that period. Suppose that America’s incarceration rate was cut in half, where would it be? It’d be in the 26th place, substantially higher than Europe’s, lower than Russia’s current rate, though perhaps by the time ours declines to that point, their’s will have also done so. The other countries who would rank higher include North Korea and a bunch of mostly Caribbean or central American countries.[9] Fundamentally, America has a higher incarceration rate than Europe because America has a larger underclass whose men do not know how to settle disputes without violence.

So what will happen to crime and incarceration in the future? The Ferguson Effect is real, but restricted to specific cities, suburban areas have remained unaffected. My prediction is that the Ferguson Effect will gradually deflate from 2017 to 2020. I am cautiously optimistic that prosecutors will continue to do their jobs.

And Pfaff’s book? It will be reviewed positively, but it’s thesis will not be remembered. It’s simply too accurate a viewpoint to compete with the “standard story.” The Standard Story, with “the war on drugs,” “mandatory minimums” and private prisons, that’s so much better a story to tell, what’s the truth when compared to a good story? So the reform movement will continue as it has been, and policies will be pushed to release all those non-violent criminals without extensive criminal backgrounds who don’t commit crimes with guns. And who’ll benefit most from this? It’ll be those white-collar criminals liberals are always complaining about, people who steal with computers rather than guns, who are Whiter than the criminal population, though not the general population. There aren’t many of them, but the good news is that the incarceration rate is already falling, so all politicians have to do is pass a reform bill to take credit for the fall that already happened, in the typical politician manner. Will this fall make America no longer the most incarcerated nation in the world?* Nope, it won’t even be close. Will it reduce the racial disparity? Maybe, but it won’t go to anywhere near where the liberals think it should be. And those two things are, let’s face it, why everyone cares about the issue.

But I’ll do my part to keep Pfaff’s thesis alive, specifically, I will cite those two charts Pfaff created, of the amount of time served and the ratio of admissions to arrests, whenever I see people write about how horribly punitive America’s criminal justice system is.

*Technically this is no longer true, that honor has gone to the Seychelles, but who’s heared of them?

References

1. John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real ReformBasic Books, 2017

2. State-by-state and national crime estimates by year(s), Bureau of Justice Statistics, accessed March 18 2017 https://www.bjs.gov/ucrdata/Search/Crime/State/StatebyState.cfm?NoVariables=Y&CFID=213617584&CFTOKEN=ce4765a5588fa22c-4AB55871-CC14-E36F-BC8A3D3105D240D4

3. Corrections Statistical Analysis Tool (CSAT) – PrisonersBureau of Justice Statistics, accessed March 18 2017 https://www.bjs.gov/index.cfm?ty=nps

4. Prisoners 1925-81, Bureau of Justice Statistics Bulletin, December 1982 https://www.bjs.gov/content/pub/pdf/p2581.pdf

5. Arrest Data Analysis ToolBureau of Justice Statistics, accessed March 18 2017 https://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm#

6. E. Ann Carson, Ph.D., and William J. Sabol, Ph.D, Prisoners in 2011, Bureau of Justice Statistics, December 2012 https://www.bjs.gov/content/pub/pdf/p11.pdf

7. Alexia Cooper and Erica L. Smith, Homicide Trends in the United States, 1980-2008, page 26, Bureau of Justice Statistics, November 2011 https://www.bjs.gov/content/pub/pdf/htus8008.pdf

8. Edwin S. Rubinstein, The Color of Crime, Revised 2016 edition, New Century Foundation https://2kpcwh2r7phz1nq4jj237m22-wpengine.netdna-ssl.com/wp-content/uploads/2016/03/Color-Of-Crime-2016.pdf

9. List of countries by incarceration rate, Wikipedia, accessed March 25 2017 https://en.wikipedia.org/w/index.php?title=List_of_countries_by_incarceration_rate&oldid=770636974

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3 Responses to *Locked In*

  1. Good Stuff. Not as good as the Tyler Cowen review, but still decent.

    Like

  2. With the thoughts you'd be thinkin says:

    Have you read Handle’s review of “The collapse of the American justice system”? It feels if your post is somewhat of an addendum to it.
    https://handleshaus.wordpress.com/2014/03/03/review-of-the-collapse-of-american-criminal-justice-by-william-j-stuntz/

    Anyway perhaps increased prosecution is a side effect of growing intra-elite competition or just overproduction of lawyers, where due to overabudance of lawyers and elected judicial figures results in greater pressure to prosecute to stave off competitors.

    Like

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