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The other side of Black Lives Matter
ocial Moilit Memo
The Other Side of lack Live Matter
William J. Wilon Monda, Decemer 14, 2015
W
illiam Julius Wilson has been appointed a Nonresident Senior Fellow at
Brookings. This is his first piece for us in his new capacity.
Several decades ago I spoke with a grieving mother living in one of the
poorest inner-city neighborhoods on Chicago’s South Side. A stray bullet from a gang fight
had killed her son, who was not a gang member. She lamented that his death was not
reported in any of the Chicago newspapers or in the Chicago electronic media.
I have been thinking about that mother a good deal recently, as the Black Lives Matter
movement has dramatically called attention to violent police encounters with blacks,
especially young black males. Aided by smart phones and social media, Americans have
now become more aware of these incidents, which very likely have occurred at similar
levels in previous decades, but were “under the radar.”
This is good, of course. But it is not enough. We need to expand the focus of the
movement to include groups not usually referenced when we discuss “Black Lives Matter,”
including that boy in Chicago, who would by now be a grown man, perhaps with children
of his own.
Segregation by income amplifies segregation by race, leaving low-income blacks clustered
in neighborhoods that feature disadvantages along several dimensions, including
exposure to violent crime. As a result, the divide within the black community has widened
sharply. In 1978, poor blacks aged twelve and over were only marginally more likely than
affluent blacks to be violent crime victims—around forty-five and thirty-eight per 1000
individuals respectively. However, by 2008, poor blacks were far more likely to be violent
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The other side of Black Lives Matter
crime victims—about seventy-five per 1000—while affluent blacks were far less likely to be
victims of violent crime—about twenty-three per 1000, according to Hochschild and
Weaver:
Violent crime can in fact reach extraordinary levels in the poorest inner-city black
neighborhoods. In Milwaukee, Wisconsin, where 46 percent of African Americans live in
high poverty neighborhoods—those with poverty rates of at least 40 percent—blacks are
nearly 20 times more likely to get shot than whites, and nine times more likely to be
murdered.
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The other side of Black Lives Matter
As Leon Neyfakh points out, some people are reluctant to talk about the high murder rate
in cities like Milwaukee because (1) it might distract attention from the vital discussions
about police violence against blacks, and (2) it runs the risk of providing ammunition to
those who resist criminal justice reform efforts regarding policing and sentencing policy.
These are legitimate concerns, of course.
On the other hand, it is vital to draw more attention to the low priority placed on solving
the high murder rates in poor inner-city neighborhoods, reflected in the woefully
inadequate resources provided to homicide detectives struggling to solve killings in those
areas. As Jill Leovy, a writer at Los Angeles Times asserts in her 2014 book Ghettoside, this
represents one of the great moral failings of our criminal justice system and indeed of our
whole society. The thousands of poor grieving African American families whose loved ones
have been killed tend to be disregarded or ignored, including by the media.
The nation’s consciousness has been raised by the repeated acts of police brutality against
blacks. But the problem of public space violence—seen in the extraordinary distress,
trauma and pain many poor inner-city families experience following the killing of a family
member or close relative—also deserves our special attention. These losses represent
another social and political imperative, described to me by sociologist Loïc Wacquant in
the following terms: “The Other Side of Black Lives Matter.” They do indeed.
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Drug offenders in American prisons: The critical distinction between stock and flow
ocial Moilit Memo
Drug offender in American prion: The critical ditinction
etween tock and flow
Jonathan Rothwell Wedneda, Novemer 25, 2015
T
here is now widespread, bipartisan agreement that mass incarceration is a huge
problem in the United States. The rates and levels of imprisonment are destroying
families and communities, and widening opportunity gaps—especially in terms of
race.
But there is a growing dispute over how far imprisonment for drug offenses is to blame.
Michelle Alexander, a legal scholar, published a powerful and influential critique of the
U.S. criminal justice system in 2012, showing how the war on drugs has disproportionately
and unfairly harmed African Americans.
Recent scholarship has challenged Alexander’s claim. John Pfaff, a Fordham law professor
and crime statistics expert, argues that Alexander exaggerates the importance of drug
crimes. Pfaff points out that the proportion of state prisoners whose primary crime was a
drug offense “rises sharply from 1980 to 1990, when it peaks at 22 percent. But that’s only
22 percent: nearly four-fifths of all state prisoners in 1990 were not drug offenders.” By
2010 the number had dropped to 17 percent. “Reducing the admissions of drug offenders
will not meaningfully reduce prison populations,” he concludes.
Other scholars, including Stephanos Bibas of the University of Pennsylvania, and some
researchers at the Urban Institute, have made similar points in recent months: since only a
minority of prisoners have been jailed for drug offenses, only modest gains against mass
incarceration can be made here.
Stock versus flow
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Drug offenders in American prisons: The critical distinction between stock and flow
There is no disputing that incarceration for property and violent crimes is of huge
importance to America’s prison population, but the standard analysis—including
Alexander’s critics—fails to distinguish between the stock and flow of drug crime-related
incarceration. In fact, there are two ways of looking at the prison population as it relates
to drug crimes:
1. How many people experience incarceration as a result of a drug-related crime over a
certain time period?
2. What proportion of the prison population at a particular moment in time was
imprisoned for a drug-related crime?
The answers will differ because the length of sentences varies by the kind of crime
committed. As of 2009, the median incarceration time at state facilities for drug offenses
was 14 months, exactly half the time for violent crimes. Those convicted of murder served
terms of roughly 10 times greater length.
Drug crimes are the main driver of imprisonment
The picture is clear: Drug crimes have been the predominant reason for new admissions
into state and federal prisons in recent decades. In every year from 1993 to 2009, more
people were admitted for drug crimes than violent crimes. In the 2000s, the flow of
incarceration for drug crimes exceeded admissions for property crimes each year. Nearly
one-third of total prison admissions over this period were for drug crimes:
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Snapshot pictures of prison populations tell a misleading story
Violent crimes account for nearly half the prison population at any given time; and drug
crimes only one fifth. But drug crimes account for more of the total number of admissions
in recent years—almost one third (31 percent), while violent crimes account for one
quarter:
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Drug offenders in American prisons: The critical distinction between stock and flow
Rothwell 1125002
Being imprisoned and being in prison: The wider picture
So, as Michelle Alexander argued, drug prosecution is a big part of the mass incarceration
story. To be clear, rolling back the war on drugs would not, as Pfaff and Urban Institute
scholars maintain, totally solve the problem of mass incarceration, but it could help a
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Drug offenders in American prisons: The critical distinction between stock and flow
great deal, by reducing exposure to prison. In other work, Pfaff provides grounds for
believing that the aggressive behavior of local prosecutors in confronting all types of
crime is an overlooked factor in the rise of mass incarceration.
More broadly, it is clear that the effect of the failed war on drugs has been devastating,
especially for black Americans. As I’ve shown in a previous piece, blacks are 3 to 4 times
more likely to be arrested for drug crimes, even though they are no more likely than whites
to use or sell drugs. Worse still, blacks are roughly nine times more likely to be admitted
into state prison for a drug offense.
During the period from 1993 to 2011, there were three million admissions into federal and
state prisons for drug offenses. Over the same period, there were 30 million arrests for
drug crimes, 24 million of which were for possession. Some of these were repeat offenders,
of course. But these figures show how largely this problem looms over the lives of many
Americans, and especially black Americans. A dangerous combination of approaches to
policing, prosecution, sentencing, criminal justice, and incarceration is resulting in higher
costs for taxpayers, less opportunity for affected individuals, and deep damage to hopes
for racial equality.
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The Truth about Mass Incarceration
By STEPHANOS BIBAS September 16, 2015 8:00 AM
National Review
(Illustration: Roman Genn)
America has the highest incarceration rate in the world, outstripping even Russia,
Cuba, Rwanda, Belarus, and Kazakhstan. Though America is home to only about onetwentieth of the world’s population, we house almost a quarter of the world’s prisoners.
Since the mid 1970s, American prison populations have boomed, multiplying sevenfold
while the population has increased by only 50 percent. Why?
Liberals blame* racism and the “War on Drugs,” in particular long sentences for
nonviolent drug crimes. This past July, in a speech to the NAACP, President Obama insisted
that “the real reason our prison population is so high” is that “over the last few decades,
we’ve also locked up more and more nonviolent drug offenders than ever before, for longer
than ever before.” The War on Drugs, he suggested, is just a continuation of America’s “long
history of inequity in the criminal-justice system,” which has disproportionately harmed
minorities.
[This is me, your teacher, interjecting to say that I identified the political leanings of the
articles, on the Cavas page in the interests of full disclosure. In our work, we need to move
beyond party politics, however, and approach topics with open minds, drawing the best
conclusions based on available evidence. Because the political climate in the US is so split
and divisive, saying things like, “Liberals blame…” is inflammatory – like name-calling.
Focus on facts, not on political parties in your essays.]
Two days later, Obama became the first sitting president to visit a prison. Speaking
immediately after his visit, the president blamed mandatory drug sentencing as a “primary
driver of this mass-incarceration phenomenon.” To underscore that point, he met with half
a dozen inmates at the prison, all of whom had been convicted of nonviolent drug offenses.
Three days earlier, he had commuted the federal prison terms of 46 nonviolent drug
offenders, most of whom had been sentenced to at least 20 years’ imprisonment.
1
The president is echoing what liberal criminologists and lawyers have long charged.
They blame our prison boom on punitive, ever-longer sentences tainted by racism,
particularly for drug crimes. Criminologists coined the term “mass incarceration” or “mass
imprisonment” a few decades ago, as if police were arresting and herding suspects en
masse into cattle cars bound for prison. Many blame this phenomenon on structural racism,
as manifested in the War on Drugs.
No one has captured and fueled this zeitgeist better than Michelle Alexander, an
ACLU lawyer turned Ohio State law professor. Her 2010 book, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness, is, as Cornel West put it, “the secular bible for a
new social movement in early twenty-first-century America.” She condemns “mass
incarceration . . . as a stunningly comprehensive and well-disguised system of racialized
social control that functions in a manner strikingly similar to Jim Crow.” Ex-felons, like
victims of Jim Crow, are a stigmatized underclass, excluded from voting, juries, jobs,
housing, education, and public benefits. This phenomenon “is not — as many argue — just
a symptom of poverty or poor choices, but rather evidence of a new racial caste system at
work,” like Jim Crow and slavery before it. She even implies that this system is just the
latest manifestation of whites’ ongoing racist conspiracy to subjugate blacks, pointing to
the CIA’s support of Nicaraguan contras who supplied cocaine to black neighborhoods in
the U.S.
Like President Obama, Alexander blames mass incarceration on the racially tinged
War on Drugs. “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.” And the War on Drugs was supposedly driven by coded racial appeals, in which
elite whites galvanized poor whites to vote Republican by scapegoating black drug addicts.
The fault, she insists, does not lie with criminals or violence. “Violent crime is not
responsible for the prison boom. . . . The uncomfortable reality is that convictions for drug
offenses — not violent crime — are the single most important cause of the prison boom in
the United States,” and minorities are disproportionately convicted of drug crimes.
Alexander’s critique is catnip to liberals. The New Jim Crow stayed on the New York
Times best-seller list for more than a year and remains Amazon’s best-selling book in
criminology. And it dovetailed with liberal and libertarian pundits’ calls to legalize or
decriminalize drugs, or at least marijuana, as the cure for burgeoning prisons.
President Obama’s and Alexander’s well-known narrative, however, doesn’t fit the
facts. Prison growth has been driven mainly by violent and property crime, not drugs. As
Fordham law professor John Pfaff has shown, more than half of the extra prisoners added
in the 1980s, 1990s, and 2000s were imprisoned for violent crimes; two thirds were in for
2
violent or property crimes. Only about a fifth of prison inmates are incarcerated for drug
offenses, and only a sliver of those are in for marijuana. Moreover, many of these
incarcerated drug offenders have prior convictions for violent crimes. The median state
prisoner serves roughly two years before being released; three quarters are released
within roughly six years.
For the last several decades, arrest rates as a percentage of crimes — including drug
arrests — have been basically flat, as have sentence lengths. What has driven prison
populations, Pfaff proves convincingly, is that arrests are far more likely to result in felony
charges: Twenty years ago, only three eighths of arrests resulted in felony charges, but
today more than half do. Over the past few decades, prosecutors have grown tougher and
more consistent.
Nor is law enforcement simply a tool of white supremacy to oppress blacks. As
several prominent black scholars have emphasized, law-abiding blacks often want more
and better law enforcement, not less. Harvard law professor Randall Kennedy emphasized
that “blacks have suffered more from being left unprotected or underprotected by law
enforcement authorities than from being mistreated as suspects or defendants,” though the
latter claims often get more attention. Most crime is intra-racial, so black victims suffer
disproportionately at the hands of black criminals. Yale law professors Tracey Meares and
James Forman Jr. have observed that minority-neighborhood residents often want tough
enforcement of drug and other laws to ensure their safety and protect their property
values. The black community is far from monolithic; many fear becoming crime victims and
identify more with them than they do with victims of police mistreatment.
There is no racist conspiracy, nor are we locking everyone up and throwing away
the key. Most prisoners are guilty of violent or property crimes that no orderly society can
excuse.
Black Democrats, responding to their constituents’ understandable fears, have
played leading roles in toughening the nation’s drug laws. In New York, black activists in
Harlem, the NAACP Citizens’ Mobilization Against Crime, and New York’s leading black
newspaper, the Amsterdam News, advocated what in the 1970s became the Rockefeller
drug laws, with their stiff mandatory minimum sentences. At the federal level, liberal black
Democrats representing black New York City neighborhoods supported tough crackcocaine penalties. Representative Charles Rangel, from Harlem, chaired the House Select
Committee on Narcotics Abuse and Control when Congress enacted crack-cocaine
sentences that were much higher than those for powder cocaine. Though many have come
to regret it, the War on Drugs was bipartisan and cross-racial.
More fundamentally, The New Jim Crow wrongly absolves criminals of responsibility
for their “poor choices.” Alexander opens her book by analogizing the disenfranchisement
of Jarvious Cotton, a felon on parole, to that of his great-great-grandfather (for being a
slave), his great-grandfather (beaten to death by the Ku Klux Klan for trying to vote), his
grandfather (intimidated by the Klan into not voting), and his father (by poll taxes and
literacy tests).
But Cotton’s ancestors were disenfranchised through violence and coercion solely
because of their race. Cotton is being judged not by the color of his skin, but by the content
of his choices. He chose to commit a felony, and Alexander omits that his felony was not a
nonviolent drug crime, but murdering 17-year-old Robert Irby during an armed robbery.
All adults of sound mind know the difference between right and wrong. Poverty and racism
are no excuses for choosing to break the law; most people, regardless of their poverty or
3
race, resist the temptation to commit crimes. Cotton is not a helpless victim just like his
ancestors, and it demeans the free will of poor black men to suggest otherwise.
So the stock liberal charges against “mass incarceration” simply don’t hold water.
There is no racist conspiracy, nor are we locking everyone up and throwing away the key.
Most prisoners are guilty of violent or property crimes that no orderly society can excuse.
Even those convicted of drug crimes have often been implicated in violence, as well as
promoting addiction that destroys neighborhoods and lives.
But just because liberals are wrong does not mean the status quo is right.
Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to
defending our astronomical incarceration rate and permanent second-class status for excons. The criminal-justice system and prisons are big-government institutions. They are
often manipulated by special interests such as prison guards’ unions, and they consume
huge shares of most states’ budgets. And cities’ avarice tempts police to arrest and jail too
many people in order to collect fines, fees, tickets, and the like. As the Department of Justice
found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law
enforcement practices are shaped by the City’s focus on revenue rather than by public
safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the
eyes of poor and minority communities.
Conservatives also need to care more about ways to hold wrongdoers accountable
while minimizing the damage punishment does to families and communities. Punishment is
coercion by the state, and it disrupts not only defendants’ lives but also their families and
neighborhoods. Contrary to the liberal critique, we need to punish and condemn crimes
unequivocally, without excusing criminals or treating them as victims. But we should be
careful to do so in ways that reinforce rather than undercut conservative values, such as
strengthening families and communities.
Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative
to defending our astronomical incarceration rate and permanent second-class status for excons.
Historically, colonial America punished crimes swiftly but temporarily. Only a few
convicts were hanged, exiled, or mutilated. Most paid a fine, were shamed in the town
square, sat in the stocks or pillory, or were whipped; all of these punishments were brief.
Having condemned the crime, the colonists then forgave the criminal, who had paid his
debt to society and the victim.
4
That was in keeping with the colonists’ Christian faith in forgiveness, and it meant
there was no permanent underclass of ex-cons. Preachers stressed that any of us could
have committed such crimes, and we all needed to steel ourselves against the same
temptations; the message was “There but for the grace of God go I.” The point of criminal
punishment was to condemn the wrong, humble the wrongdoer, induce him to make
amends and learn his lesson, and then welcome him back as a brother in Christ. The
punishment fell on the criminal, not on his family or friends, and he went right back to
work.
Two centuries ago, the shift from shaming and corporal punishments to
imprisonment made punishment an enduring status. Reformers had hoped that isolation
and Bible reading in prison would induce repentance and law-abiding work habits, but it
didn’t turn out that way. Now we warehouse large numbers of criminals, in idleness and at
great expense. By exiling them, often far away, prison severs them from their
responsibilities to their families and communities, not to mention separating them from
opportunities for gainful work. This approach is hugely disruptive, especially when it
passes a tipping point in some communities and exacerbates the number of fatherless
families. And much of the burden falls on innocent women and children, who lose a
husband, boyfriend, or father as well as a breadwinner.
Even though wrongdoers may deserve to have the book thrown at them, it is not
always wise to exact the full measure of justice. There is evidence that prison turns people
into career criminals. On the one hand, it cuts prisoners off from families, friends, and
neighbors, who give them reasons to follow the law. Responsibilities as husbands and
fathers are key factors that tame young men’s wildness and encourage them to settle down:
One longitudinal study found that marriage may reduce reoffending by 35 percent. But
prison makes it difficult to maintain families and friendships; visiting in person is difficult
and time-consuming, prisons are often far away, and telephone calls are horrifically
expensive.
On the other hand, prison does much to draw inmates away from lawful work. In the
month before their arrest, roughly three quarters of inmates were employed, earning the
bulk of their income lawfully. Many were not only taking care of their children but helping
to pay for rent, groceries, utilities, and health care. But prison destroys their earning
potential. Prisoners lose their jobs on the outside. Felony convictions also disqualify excons from certain jobs, housing, student loans, and voting. Michigan economics professor
Michael Mueller-Smith finds that spending a year or more in prison reduces the odds of
post-prison employment by 24 percent and increases the odds of living on food stamps by
5 percent.
Conversely, prisons are breeding grounds for crime. Instead of working to support
their own families and their victims, most prisoners are forced to remain idle. Instead of
having to learn vocational skills, they have too much free time to hone criminal skills and
connections. And instead of removing wrongdoers from criminogenic environments, prison
clusters together neophytes and experienced recidivists, breeding gangs, criminal
networks, and more crime. Thus, Mueller-Smith finds, long sentences on average breed
much more crime after release than they prevent during the sentence. Any benefit from
locking criminals up temporarily is more than offset by the crime increase caused when
prison turns small-timers into career criminals. So conservatives’ emphasis on retribution
and responsibility, even when morally warranted, can quickly become counterproductive.
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Another justification for prison is that the threat of punishment deters crime. The
problem with deterrence, however, is that we overestimate prospective criminals’ foresight
and self-discipline. At its root, crime is generally a failure of self-discipline. Conservative
criminologists such as the late James Q. Wilson and Richard Herrnstein pin primary blame
for crime on criminals’ impulsively satisfying their immediate desires. They are shortsighted gamblers; who else would risk getting shot or arrested in order to steal $300 and a
six-pack of beer from a convenience store?
Impulsiveness, short-sightedness, and risk-taking are even more pronounced among
the very many wrongdoers whose crimes are fueled by some combination of drugs, alcohol,
and mental illness. But those very qualities make it hard to deter them. We naïvely expect
to deter these same short-sighted gamblers by threatening a chance of getting caught,
convicted, and sent to prison for years far off in the future. Of course, optimistic, intoxicated
risk-takers think they will not be caught. And if they have cycled through the juvenilejustice system and received meaningless probation for early convictions, the system has
taught them exactly the wrong lessons.
To deter crime effectively, punishment must speak to the same short-sighted
wrongdoers who commit crime — not primarily through threats of long punishment far off
in the future, but more through swift, certain sanctions that pay back victims while knitting
wrongdoers back into the social fabric. If we make punishments immediate and
predictable, yet modest, even drug addicts respond to them. Hawaii’s Opportunity
Probation with Enforcement (HOPE) is an intensive-probation program that has the
hardest-core drug users face random urinalysis one day each week; violators immediately
go off to a weekend in jail. Though the Left paints drug addiction as a disease requiring
costly medical intervention, drug addicts can in fact choose to stop using drugs. Under
HOPE, even habitual drug users usually go clean on their own when faced with the
immediate threat of two days in jail. Well over 80 percent stop using drugs right away and
remain clean, without any further treatment.
The contrast with ordinary probation is stark. Probation officers juggle hundreds of
cases, rarely see their clients, and routinely ignore multiple violations until they
unpredictably send a client back to prison at some point in the future. Probation thus
teaches probationers exactly the wrong lesson: that they are likely to get away with
violations. It is no wonder that HOPE succeeds where ordinary probation fails.
Applying the same insight to prisons could revolutionize them. UCLA professor
Mark Kleiman notes that most inmates could be released early and watched round the
clock with webcams, drug and alcohol testing, and electronic ankle bracelets via GPS. They
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could live in government-rented apartments, see their families, and work at public-service
jobs, all at much less expense than prison. These surveillance methods could enforce rules
such as strict curfews, location limits, and bans on drug and alcohol use, with swift
penalties for noncompliance. But the Left hates the idea, in part because its critics blame
crime on society rather than on wrongdoers who need to be held accountable, disciplined,
and taught structure and self-control.
The more that punishment exacerbates the breakdown of families and communities,
the more the overweening state and its social services and law enforcement grow to fill the
resulting void.
States like Texas and Georgia have already been experimenting with alternatives to
endlessly building more prison cells. They have dramatically expanded inpatient and
outpatient drug treatment as well as drug courts, diverted more minor offenders out of
prison, kept juveniles out of state prison, and set up cheaper diversion beds for inmates
who do not need to be in regular prison. For instance, Texas has begun creating special
substance-abuse cells, so that repeat drunk drivers can get treatment instead of being
housed with murderers and rapists. Risk-assessment tools can help to identify the sliver of
recidivists and predators who pose the greatest danger and need long-term confinement.
Most of all, the government needs to work on reweaving the frayed but still extant
fabric of criminals’ families and communities. Both excessive crime and excessive
punishment rend communal bonds, further atomizing society. The more that punishment
exacerbates the breakdown of families and communities, the more the overweening state
and its social services and law enforcement grow to fill the resulting void.
The cornerstone of a conservative criminal-justice agenda should be strengthening
families. More than half of America’s inmates have minor children, more than 1.7 million in
all; most of these inmates were living with minor children right before their arrest or
incarceration. Inmates should meet with their families often. They should be incarcerated
as close to home as possible, not deliberately sent to the other end of the state. Visitation
rules and hours need to be eased, and extortionate collect-call telephone rates should come
down to actual cost.
We should also pay more attention to the victims of crime. Victims are often friends,
neighbors, or relatives of the wrongdoers who must go back to living among them. Though
victims want to see justice done — including appropriate punishment — that does not
generally mean the maximum possible sentence. In surveys, victims care much more about
receiving restitution and apologies. So prison-based programs should encourage
wrongdoers to meet with their victims if the victims are willing, to listen to their stories,
apologize, and seek their forgiveness. Having to apologize and make amends makes most
wrongdoers uncomfortable, teaching them lessons that they must learn.
Over-imprisonment is wrong because state coercion excessively disrupts work,
families, and communities, the building blocks of society, with too little benefit to show for
it.
Another important component of punishment should be work. It is madness that
prisoners spend years in state-sponsored idleness punctuated by sporadic brutality. It is
time to repeal Depression-era protectionist laws that ban prison-made goods from
interstate commerce and require payment of prevailing-wage rates to prisoners (making
prison industries unprofitable). All able-bodied prisoners should have to complete their
educations and work, learning good work habits as well as marketable skills. One could
even experiment with sending able-bodied prisoners without serious violent tendencies to
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enlist in the military, as used to be routine (think of the movie The Dirty Dozen). Some of
prisoners’ wages could go to support their families, cover some costs of incarceration, and
make restitution to their victims.
Finally, inmates need religion and the religious communities that come with it.*
Most prisoners are eventually released, and we do almost nothing to help them reenter
society, simply providing a bus ticket and perhaps $20. But faith-based programs like
Prison Fellowship Ministries can transform cell blocks from wards of idleness or violence
to orderly places of prayer, repentance, education, and work. After inmates are released,
these faith-based groups can also perform much of the oversight, community reintegration,
fellowship, and prayer that returning inmates need. Inmates must accept their
responsibility, vow to mend their ways, and have fellow believers to hold them to those
promises. Having a job, an apartment, and a congregation waiting for them after release
from prison offers ex-cons a law-abiding alternative to returning to lives of crime.
[Me again. As you know, we want to avoid religious arguments. Instead, we want to
challenge our thinking to focus on ideas we can all argue about. In the next paragraph, the
author refers to morality. Morals are shared principles that exist in particular communities.
While there are religious forms of community that share very particular principles, there
are other forms of community that can help ground or provide roots for those leaving
prison. Schools are examples of such communities. It’s okay to use religious community as
an example of an environment that might help an ex-prisoner transition, but then use it as
only one example among others.]
American criminal justice has drifted away from its moral roots. The Left has
forgotten how to blame and punish, and too often the Right has forgotten how to forgive.
Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a
white-supremacist conspiracy. It is wrong because state coercion excessively disrupts
work, families, and communities, the building blocks of society, with too little benefit to
show for it. Our strategies for deterring crime not only fail to work on short-sighted,
impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it
is wise as well as humane to temper justice with mercy.
0
— Stephanos Bibas, a University of Pennsylvania professor of law and criminology and a
former federal prosecutor, is the author of The Machinery of Criminal Justice (Oxford). This
article originally appeared in the September 21, 2015, issue of National Review.
8
Escaping from the Standard Story:
Why The Conventional Wisdom on
Prison Growth Is Wrong, And
Where We Can Go From Here
John F. Pfaff*
Abstract
Whether as a result of low crime rates, the financial pressures
of the 2008 credit crunch, or other factors, policymakers on
both sides of the aisle are trying to rein or even reduce the US
incarceration rate after an unprecedented forty-‐year expan-‐
sion. Unfortunately, reforms are hampered by the fact that
we do not have a solid empirical understanding of what
caused the explosion in the first place. In fact, the “Standard
Story” of prison growth generally overemphasizes less im-‐
portant factors and overlooks more important ones. This es-‐
say thus does two things. First, it points out the flaws in five
key aspects of the Standard Story: its argument that the War
on Drugs is of central importance, that trends in violent and
property crimes are relatively unimportant, that longer sen-‐
tence lengths drive growth, that the “criminal justice system”
is a fairly coherent entity advancing specific goals, and that
the “politics of crime control” is uniquely dysfunctional. And
second, it argues that an increased willingness of the part of
prosecutors to file charges—a causal factor almost complete-‐
ly overlooked by the Standard Story—is likely the most im-‐
portant force behind prison growth, at least for the past two
decades.
*
Professor of Law, Fordham Law School.
1
Electronic copy available at: http://ssrn.com/abstract=2414596
Key words: Incarceration, Incarceration Rates, Sentencing,
Criminal Justice, Crime, Crime and Punishment, Prosecutors
The past four decades have witnessed an unprecedented surge in
the US incarceration rate. Stable for nearly fifty years at about 100 per
100,000, it started surging in the mid-‐1970s to nearly 500 per 100,000
today. It is an explosion unprecedented here or abroad: with only 5% of
the world’s population, the US is now home to more than 20% of its
prisoners.
But relatively low crime rates and tight state budgets have led to a
fairly bipartisan desire to reduce the scale of US incarceration. Reform
efforts, however, are hampered by a serious limitation, namely that we
don’t really understand what caused this growth in the first place. Actu-‐
ally, the problem is worse: policymakers, journalists, academics, and the
wider public all generally accept a conventional wisdom—what I will call
the “Standard Story”—that is simply incorrect. It is a situation worse
than ignorance.
In this short essay I want to correct several of the more durable
myths or misconceptions that are at the heart of the Standard Story,
focusing on five problematic claims in particular: (1) the War on Drugs
drives prison growth, (2) trends in violent and property crimes are rela-‐
tively unimportant, (3) longer sentences drive prison growth, (4) the
“criminal justice system” is a fairly coherent entity with identifiable
goals, and (5) the politics of crime are uniquely dysfunctional. There are
other aspects of the Standard Story that are also empirically problemat-‐
ic—such as claims tying prison growth to private prisons or to increased
parole violations (particularly technical violations) 1—but these five are
1
According to Bureau of Justice Statistics, only about 8% of state prisoners are
held in private prisons. And while parole violations have gone up, so too have
parole releases, thanks to rising prison populations. Parole releases and parole
2
Electronic copy available at: http://ssrn.com/abstract=2414596
among the most important claims, and my space here is limited. After
pointing out the deep flaws with these five claims, I will highlight some
of the more empirically plausible explanations, emphasizing in particular
the importance of prosecutors and their willingness to file felony charg-‐
es.
Five Problematic Explanations of Prison Growth
The Standard Story comes in many different forms, but across a
wide range of commentators a fairly consistent—and flawed—story
emerges. Here I consider five common, incorrect aspects of that Story.
The War on Drugs. This is perhaps the most common and durable
explanation. It is also easy to dismantle. Figure 1 plots the percent of
state prisoners over time whose primary offense was a drug crime.2 Yes,
the percent rises sharply from 1980 to 1990, when it peaks at 22%. But
that’s only 22%: nearly four-‐fifths of all state prisoners in 1990 were not
drug offenders.3 By 2010 the percent of state prisoners serving time for
drug offenses was down to just over 17%.
violations move in relative sync (with states releasing more than they violate
back), suggesting that parole violations are less the cause of but more the
symptom of prison growth. See John F. Pfaff, The Myths and Realities of Correc-‐
tional Severity: Evidence from the National Corrections Reporting Program, 13
AM. L. & ECON. REV. 491 (2011).
2
The national statistics on imprisonment prioritize offenses, ranking violent
ahead of property and property ahead of drugs. So someone sentenced for
arson and drug possession would appear just as a “violent offender.”
3
About half of all federal prisoners are serving time for drug offenses due to
the federal system’s limited jurisdiction, but only about 12% of all prisoners are
federal inmates. So adding in the federal system raises the percentages by
about five percentage points, not enough to change the qualitative story here.
3
Electronic copy available at: http://ssrn.com/abstract=2414596
Fig. 1: Percent of Prisoners Serving Drug Sentences
.05
.1
Percent
.15
.2
.25
1980 - 2008
1980
1990
2000
2010
Year
Note: Data from the National Prisoner Statistics
The relative unimportance of drug incarcerations can be illuminated
even more strikingly. Between 1980 and 2009, state prisons added
1,086,200 prisoners, as the prison population rose from 294,000 to
1,380,200. This increase consisted of 551,000 more violent offenders,
171,900 more property offenders, and only 223,000 more drug offend-‐
ers (with the rest committing public-‐order and other miscellaneous
crimes). In other words, the increase in drug incarcerations explains on-‐
ly 21% of the growth in state prison populations.4 The increase in violent
offenders alone explains 51%—more than half—of the overall growth,
and that in violent and property offenders explains 67%. When some-‐
one like Michelle Alexander argues in The New Jim Crow that drugs in-‐
4
223,000 is 21% of 1,086,200.
4
carcerations are the primary source of prison growth she is simply, cat-‐
egorically wrong.5
That said, it is possible that the war on drugs could have important
indirect effects. First, drug arrests may not result in incarceration, but
they can disrupt the offender’s life (relationships, employment, etc.) in
ways that may lead to future criminality: a future burglary or aggravated
assault could be the product in part of the social disruption from a prior
drug arrest. Second, drug arrests and convictions increase a defendant’s
criminal history, resulting in tougher sanctions or treatment for future
non-‐drug offenses.6 Third, prohibition itself can lead to violence and
other crimes, whether by destabilizing drug markets, by increasing the
returns on illegal activity, by making it harder to treat drug addiction as
a public health problem instead of a criminal one, etc.
The policy implications here are clear. Reducing the admissions of
drug offenders will not meaningfully reduce prison populations. Ad-‐
dressing the collateral costs of the war on drugs—such as longer crimi-‐
nal records or the social destabilization of arrest—may be more produc-‐
tive. But it is much more likely that meaningful reform must look at how
we treat violent and property offenders, to whom I turn now.
The Importance of Violent and Property Crimes. One surprising as-‐
pect of the Standard Story is that it downplays the impact of violent and
property crime trends on incarceration rates. Its insistence that the war
5
This is not a strawman argument, nor an overstatement of what she says:
“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 a majority of the increase.” Michelle Alex-‐
ander, The New Jim Crow 6 (2012) (emphasis added). It should be clear by now
that this assertion is fundamentally, indeed distressingly, incorrect.
6
Some preliminary results from the 1997 and 2004 waves of the National Sur-‐
vey of Inmates in State and Federal Correctional Institutions, however, cautions
against putting too much weight on this theory as well.
5
on drugs is the primary engine of prison growth surely explains this to
some extent. Yet this is a serious error in the Standard Story’s account.
Figure 2 plots violent and property crime rates since 1960. Between
1960 and 1991, violent crime grows by 371% and property crime by
198% (from a baseline ten times as high). Like the subsequent expan-‐
sion in prison populations, this was an historically unprecedented explo-‐
sion in crime. Such soaring criminality surely changed people’s attitudes
towards punishment, but it also likely had a direct impact on incarcera-‐
tion level. Empirically estimating the impact of crime on incarceration is
actually quite tricky, 7 but one of the more sophisticated—albeit still
quite problematic—estimates suggests that a 1% increase in crime may
lead to an approximately 1% increase in incarceration. 8 If so, rising
crime explains half the prison growth up through 1991. Of course, that
means other factors explain the other half, but these results nonethe-‐
less place changes in violent and property crime at the heart of changes
in incarceration.
7
Perhaps another reason the Standard Story downplays the role of violent and
property crime comes from the trends in Figure 2. Prison populations grew
when crime rates were rising (1960 to 1980, 1984 to 1991), falling (1991 to the
present), and flat (1980 -‐ 1984), suggesting that prison populations grew inde-‐
pendently of crime rates. Yet simple correlations like these can be deceptive.
8
Yair Listokin, Does More Crime Mean More Prisoners? An Instrumental Varia-‐
ble Approach, 46 J. L. & ECON. 181 (2003). The concerns with Listokin’s results
are technical in nature: Listokin uses abortion as an instrument for crime, which
requires abortion to be otherwise uncorrelated with incarceration. This is likely
not true since, for example, increased abortion could free up female labor sup-‐
ply leading to higher tax returns, higher state revenue, and thus an increased
willingness to incarcerate. The likely absence of strict exogeneity dictates that
we treat these results with some caution.
6
Fig. 2: Violent and Property Crime Rates
200
2000
Violent Crime
400
600
3000 4000 5000
Property Crime
800
6000
1960 - 2010
1960
1970
1980
1990
2000
2010
Year
Violent Crime
Property Crime
Note: Data from the Uniform Crime Report and National Prisoner Statistics
In fact, Figure 2 may actually undersell the psychological impact of
the crime boom of 1960 to 1991. Figure 3 provides an alternate version
of the US incarceration rate, not in terms of prisoners per person, but in
terms of prisoners per crime; call this the “effective” incarceration rate.
What is striking is the significant decline in the effective incarceration
rate from 1960 to 1980: as crime rates soared, the incarceration rate—
and in some years the absolute number of prisoners—fell or stayed flat.
7
Fig. 3: Viol. and Prop. Crime Rates Per 1,000 Prisoners
0
200
400
50
100
150
Property Crime
200
Violent Crime
600
800 1000 1200
1960 - 2010
1960
1970
1980
1990
2000
2010
Year
Violent Crime
Property Crime
Note: Data from the Uniform Crime Report and National Prisoner Statistics
Whether the decline in effective incarceration was good policy is
immaterial. It could be that an increase in effective incarceration would
have led to more crime, or that no reasonable increase in incarceration
could counteract the broad social and demographic upheavals that
pushed up crime in the 1960s. But what may really matter is that the
Baby Boomers—a large, politically powerful bloc of voters—saw crime
soar while prison populations fell and thought a causal connection ex-‐
isted. And this perception, whatever the true causal relationship, likely
influences the politics of punishment to this day.
The (un)importance of longer sentences. Another core argument of
the Standard Story is that longer sentences have driven up prison popu-‐
lations. We are, according to some leading criminologists, in a “throw
away the key” era. Yet despite anecdotes of bracingly long sentences for
relatively minor offenses, the evidence suggests that time served has
remained relatively stable over many years. In fact, not only is time
8
served stable, but at least for many Northern states (which provide
more reliable data), it is surprisingly short: median sentence lengths are
on the order of two to four years, with three-‐fourths of all inmates re-‐
leased in about six to eight years. Two or six years in a state prison is a
serious sanction, but such sentences are not throw-‐away-‐the-‐key long.
Figure 4 provides intuitive evidence that sentence length has not
grown noticeably over time. All Figure 4 plots is the total annual number
of admissions to and releases from state prisons. Were sentence lengths
growing systematically tougher, we should expect releases to grow at
an increasingly flatter rate relative to admissions. And while there is
some such flattening in the early 1980s, over the rest of the period the
two lines track each other closely—and they even converge in the
2000s. More rigorous studies using various forms of inmate-‐ and state-‐
level data appear to confirm this intuition.9
9
Pfaff, The Myths and Realities of Correctional Severity, supra note 1; John F.
Pfaff, The Durability of Prison Populations, 2010 U. CHI. LEGAL F. 73 (2010); and
John F. Pfaff, The Centrality of Prosecutors to Prison Growth: An Empirical Anal-‐
ysis (unpublished manuscript, 2014).
9
Fig. 4: Admissions and Releases from State Prisons
0
200000 400000 600000 800000
1977 - 2009
1970
1980
1990
Year
Admission
2000
2010
Releases
Note: Data from the National Prisoner Statistics
This is an admittedly bold claim, and I want to note a few reserva-‐
tions. First, that time served has been stable does not mean tougher
sentencing laws are irrelevant. As I will discuss below, at least since the
early 1990s the primary engine of prison growth has been an increased
willingness on the part of prosecutors to file felony charges. By giving
prosecutors bigger hammers to wield during the plea bargaining pro-‐
cess, tougher sentencing laws may enable prosecutors to extract guilty
pleas more quickly from defendants (by offering not to use the tougher
law). Thus convicted defendants may serve the same amount of time as
before, but more defendants plead out (rather than, say, risking a trial
or having their cases dismissed or knocked down to a misdemeanor).
Second, admissions have been rising during a time of declining
crime, which means that states must be admitting increasingly marginal
offenders. If so, perhaps we should have expected time served to fall,
not stay flat. That time served has remained stable could reflect that we
are imposing harsher sentences on less-‐serious offenders than before.
10
Tests for this effect seem to confirm that it is present, but not necessari-‐
ly that it is particularly strong.
The criminal justice system is not a system. The Standard Story also
treats the criminal justice system like some sort of coherent entity with
defined goals; at the very least, it posits that those at the top of the po-‐
litical hierarchy—governors, presidents, political parties—use “the sys-‐
tem” to accomplish certain objectives, such as reducing crime or regu-‐
lating and controlling minority populations. In fact, this is a common
view of criminal justice in many areas of research and policy. But it is a
deeply flawed one.
The criminal justice system is not a “system” at all, and treating it as
such can lead analysts to overlook important causes of prison growth.
This alleged “system” is actually a poorly thought out, sprawling mé-‐
lange of competing institutions with different constituencies and incen-‐
tives, and which at times do not work well together. It consists of local
police, county district attorneys, county or state judges (who are either
appointed or elected, and if elected are chosen in partisan or non-‐
partisan elections), state-‐level governors and parole boards, and hybrid
state legislators (who hold state-‐level office but often represent hyper-‐
local districts), not to mention various federal bureaucracies, county
sheriffs, regional task forces, state sentencing commissions, and so on.
And not only is authority divided across these actors, but there is often
no clear logic to why authority is divided the way it is.
Consider one clear example of a poorly-‐reasoned allocation of au-‐
thority and its costs. Jails and probation offices are funded by counties,
prisons by states. This creates a significant moral hazard problem for
county prosecutors: their constituents don’t pay the full cost of the fel-‐
ony convictions they secure, although the prosecutors reap the full
tough-‐on-‐crime political benefits. In fact, prosecutors are incentivized to
charge borderline cases as felonies, since misdemeanors resulting in jail
or probation accrue less political benefit and increase county costs. A
11
model that treats the criminal justice system as a coherent entity will
miss such moral hazard issues—which is exactly the trap into which the
Standard Story falls.
By ignoring these institutional factors, the Standard Story fails to
identify who is driving prison growth: are police arresting more offend-‐
ers, district attorneys charging more, judges convicting and sentencing
more, judges (or legislators) sentencing them to longer sentences, or,
say, parole officers restricting releases? The Standard Story glosses over
these questions and generally relies on broad state-‐ or federal-‐level dis-‐
cussions. This oversight imposes two serious costs.
First, and more technically, non-‐institutional empirical models yield
relatively uninformative results, even if the models are methodological-‐
ly sound (which they almost never are).10 What does it mean if a study
reports that a 1% increase in young black men in a state leads to a 1.2%
increase in the prison population? Is it because police are biased? DAs?
judges? And in urban counties? rural ones? or high-‐crime rural or low-‐
crime urban? A state-‐level model that does not account for the various
institutional actors involved simply yields an uninterpretable average of
all sorts of local effects, and there is absolutely no reason to assume
that the effect is the same across all institutions, or across all types of
counties.
Second, and more significantly, non-‐institutional models provide lit-‐
tle insight into where to target reforms. For example, without under-‐
standing who is driving prison growth, it is unclear how important it is to
revise state sentencing laws. Consider the recent history of punishment
in New York State. The Rockefeller Drug Laws (RDLs) were passed in
1973, yet the percent of drug offenders in New York State prisons re-‐
mained flat or fell until 1984. County DAs simply ignored the RDLs for
10
I point out the substantial methodological flaws with almost all empirical
papers on prison growth in John F. Pfaff, The Empirics of Prison Growth: A Criti-‐
cal Review and Path Forward, 98 J. CRIM. L. & CRIMINOLOGY 547 (2008).
12
over a decade, since whatever national-‐level politics inspired Nelson
Rockefeller to advocate for them didn’t matter at their local level. And
then drug incarcerations started to decline steady from 1997 on, even
though the legislature did not amend the RDLs until 2004 (weakly) and
2009 (more seriously). In other words, the county DAs also stopped rely-‐
ing on the RDLs well before Albany got around to modifying them.11
In fact, in a recent paper I demonstrate that at least since 1994, the
primary force behind prison expansion has been an increased willing-‐
ness on the part of district attorneys to file felony charges: crime is
down, arrests per crime are generally flat or falling, prison admissions
per felony case are flat, as is time served, but filings per arrest have
soared.12 These results indicate, then, that reforms targeting prosecu-‐
tors are more important than those looking at legislators, or at least
that legislative reforms are important only insofar as they alter how
prosecutors—over whom legislators have no direct authority—
behave.13
Moreover, this institutional approach demonstrates that we need to
study punishment at the county level, not the state or federal, since
district attorneys are county officials who respond to county incentives.
And once we start looking at counties, interesting features that the
Standard Story simply cannot detect emerge. One, obviously, is the
moral hazard problem noted above. Another is that counties can differ
in systematic ways. New York State, for example, has witnessed a long-‐
running decline in both its overall prison population and the percent of
11
To be clear, the RDLs were not immaterial: local DAs could not have been as
harsh in the 1980s and 1990s had the legislature not given them that option.
12
Pfaff, The Centrality of Prosecutors to Prison Growth, supra note 9.
13
Other examples of these sorts of agency problems abound. Dan Richman, for
example, pointed out that the New Orleans Police Department effectively
thwarted the New Orleans’ DA’s efforts to avoid pleading out cases by refusing
to improve the quality of the its investigations, and thus the quality of the cases
the DA’s office could mount. See Daniel Richman, Institutional Coordination
and Sentencing Reform, 84 TEX. L. REV. 2055 (2006).
13
inmates serving time for drug offenses. Both declines are due primarily
to New York City: while the City’s five counties have been sending fewer
total people and relatively fewer drug offenders to prison, the less-‐
urban counties of the state have been doing the opposite. Other studies
have yielded similar rural-‐urban distinctions. These results raise inter-‐
esting questions about how to structure and design reforms that state-‐
level analyses cannot help but miss.
Of course, we don’t want to overstate the disaggregate nature of
criminal justice in the US. While police chiefs, district attorneys, judges,
and governors are all relatively autonomous and responsive to different
constituencies, they also all still read the same op-‐eds in the same pa-‐
pers and are buffeted by the same broad cultural winds. Thus they are
all likely influenced by, say, the rise of the “nothing works” attitude in
the 1970s or the increased interest in re-‐entry or problem-‐solving ap-‐
proaches today. At the same time, they likely respond to these changes
differently, and any model of criminal justice outcomes that fails to ac-‐
count for the diffuse nature of authority and responsibility will miss im-‐
portant explanations for what is happening.
The “politics” of crime are not that unique. The final erroneous as-‐
pect of the Standard Story that I want to address is its broad assertion
that the politics of criminal justice are uniquely dysfunctional. It is an
admittedly intuitive claim: while most policy issues have clearly defined
antagonistic sides—labor vs. management, greens vs. industry, pro-‐life
vs. pro-‐choice—there does not appear to be anyone to counter the
“tough on crime” side. Furthermore, numerous criminologists and soci-‐
ologists have argued that crime control is a uniquely effective election-‐
eering topic in today’s political environment, leading politicians to focus
14
on it to a disproportionate degree.14 Taken together, these observations
suggest we should see a one-‐way ratchet of ever-‐tougher crime policies.
And it is true that politicians have generally not rolled back criminal
statutes or weakened sentencing laws. Yet the story is more complicat-‐
ed than that. Consider Figure 5, which plots correctional spending as a
share of state budget outlays. Correction’s share of the budget rises
from the 1970s through the early 1990s—which coincides with the
crime boom—but then remains relatively flat during from the mid-‐
1990s onward. In other words, once crime leveled out in the early
1990s, so too did relative correctional spending.
Fig. 5: Correctional Share of State Budgets
.02
.04
.06
.08
.1
1952 - 2008
1940
1960
1980
Year
% of Total Spending
% of Discretionary 2
2000
2020
% of Discretionary 1
Notes: Data from the Census Bureau's Annual Survey of Government Finances. Discretionary 1
and Discretionary 2 refer to two seaprate ways of calculating state discretionary spending. More
details are available in John F. Pfaff, The Micro and Macro Causes of Prison Growth, 28 Ga. St.
L. Rev. 1239 (2011).
14
Surprisingly, these researchers rarely explain why crime has been such a
powerful electoral topic, or at least why politicians have favored it over other
potential issues. A likely explanation is that our high rates of crime itself made
crime control a salient political issue, but as noted above the Standard Story
generally downplays the violent and property crime surge that started in the
1960s.
15
It is true that absolute correctional spending rose steadily during
the 1990s and 2000s, from almost $20 billion in 1991 to nearly $50 bil-‐
lion in 2008 (a 159% nominal increase, although only a 63% real in-‐
crease, and only a 35% real increase per capita). But look at Figure 6,
which plots real per-‐capita state revenues and expenditures from 1952
to 2008: state fiscal capacity grew steadily over that time, and spending
moved in lockstep with revenues. States were spending more on every-‐
thing, including corrections. In fact, for all the talk of “crowding out,”
correctional spending is generally positively correlated with spending on
welfare, education, transportation, etc.15
Fig. 6: Real Per Capita State Revenues and Expenditures
500 1000 1500 2000 2500 3000
1952 - 2008
1940
1960
1980
Year
Revenues
2000
2020
Expenditures
Note: Data from the Census Bureau's Annual Survey of Government Finances.
In other words, spending on corrections ultimately does not appear
to be as exceptional as it seems at first blush. Once crime began falling
15
Of course, there is crowding out on the margin: perhaps educational budgets
would have grown even faster had states spent less on corrections. But all
budget lines have tended to grow with rising state budgetary power.
16
in 1991, spending on corrections simply maintained pace with growing
overall spending. Of course, that the percent of the budget given over
to corrections stayed flat—rather than fell—during a time of falling
crime is perhaps somewhat surprising, and it suggests that correctional
systems have been effective at staving off budget cuts.16 Yet it seems
likely that many government agencies, not just departments of correc-‐
tion, are able to fight off retrenchment in situations like these.
That the relative size of prison budgets remained fairly stable since
1991 actually is not that surprising, since the Standard Story’s claim that
tough-‐on-‐crime policies face no meaningful opposition mischaracterizes
the nature of state budgetary politics. State budgets are much more
restricted than the federal budget, since states are often subject to bal-‐
anced-‐budget provisions (of varying degrees of effectiveness), must bor-‐
row money at less favorable rates, and cannot print their own money. In
short, state budgeting is much more a zero-‐sum game than federal
budgeting, creating clear antagonists to tough-‐on-‐crime policies: not
“soft on crime” groups, but schools, hospitals, departments of transpor-‐
tation, and everyone else clamoring for a piece of a fixed pool of money.
Every dollar that goes to a prison doesn’t go to a school, and at the state
level, lobbies like the National Education Association are quite powerful.
In light of these political realities, we should be concerned that the
Standard Story overemphasizes the extent to which “crime is different.”
Where Do We Go From Here?
16
New York State, for example, has seen its prison population drop steadily by
about 1% per year for over a decade, yet until very recently it has had a hard
time closing prisons that are almost entirely empty now. See
http://www.nytimes.com/2010/02/17/nyregion/17about.html
and
http://www.nytimes.com/2012/05/28/nyregion/closed-‐new-‐york-‐prisons-‐
prove-‐hard-‐to-‐sell.html.
17
It is relatively straight-‐forward to summarize the Standard Story’s
core assertions: prison populations have been pushed up by a relatively
coherent and politically powerful criminal justice system that has cho-‐
sen to target drug offenders and to rely on increasingly long sentences.
And while none of these claims is necessarily wrong, as shown above
each has profound weaknesses and, taken together, provide a highly
misleading account of prison growth. The path forward, however,
should be fairly clear as well. A few quick, representative suggestions:
1. Focus less on drug inmates and more on violent and property
offenders. That a majority of prison growth since 1980 has come from
locking up violent offenders does not mean our prisons are overflowing
with murderers and arsonists: many of these violent offenders may be
guilty of low-‐level acts of violence that would have resulted in probation
ten or fifteen years ago, and who may not pose serious public safety
risks. But the politics of dialing back enforcement against violent of-‐
fenders is qualitatively different than that looking at drug offenders.
2. Focus less on sentence length and more on admissions. At one
level, the distinction here may be slight: any new admission can be
thought of as raising the time served from zero to non-‐zero. A new
mandatory minimum could be seen as both a time served-‐side and an
admission-‐side policy. That said, it should be clear that our attention
should be on figuring out what is driving up felony filings and thus ad-‐
missions: is this simply a change in prosecutorial attitudes; is it due to
(short) mandatory minimums denying probation to defendants without
making them serve much time; is it that prosecutors use massively
longer sentences as effective hammers to bang out pleas; or something
else?
3. Develop richer institutional accounts. It seems likely that prison
growth is less the product of some coherent plan and more the unin-‐
18
tended result of actions taken by numerous, relatively autonomous bu-‐
reaucracies, many situated in relatively small geographic areas such as
cities and counties (which should only emphasize the uncoordinated
nature of growth). It is impossible to explain how growth has occurred—
and thus how to adjust it—without understanding the interaction of
various agencies’ decisions. Unfortunately, we have very little data on
these interactions yet at this point, since widespread adherence to the
Standard Story has caused most social scientists to design only state-‐
and federal-‐level models.
Reforming penal practices in the United States is impossible without
a solid, rigorous understanding of the key forces at play. Unfortunately,
we are currently saddled with a conventional wisdom that is truly inad-‐
equate. Hopefully we will be able to move beyond it before the oppor-‐
tunity for meaningful reform passes.
19
6/19/2017
Jeff Sessions vows to ramp up drug enforcement and prevention - Business Insider
Jeff Sessions 'appears intent on taking us
back to the 1980s' and the 'War on Drugs'
JEREMY BERKE
MAR. 16, 2017, 4:20 PM
Sessions wants to crack down on drug
offenders
Says violent crime is rising nationwide
Experts say Sessions wants to take us
back to '80s and '90s style punishments
His comments about marijuana may be
the most impactful
Attorney General Jeff Sessions vowed on
Wednesday to ramp up enforcement of drug crimes
to combat what he says is a nationwide increase in
violent crime, a move some experts say channels the
"drug war" era of the 1980s.
Sessions delivered a speech to law enforcement
officers in Richmond, Virginia, where he touted the
effectiveness of Project Exile, a two-decade old
program that enforced mandatory minimum
sentences on felons caught carrying firearms.
Attorney General Jeff Sessions.
Associated Press/Susan Walsh
"All of us who work in law enforcement want to
keep people safe," Sessions said, according to prepared remarks. "That is the heart of our jobs; it is what drives us
every day. So we are all disturbed to learn that violent crime is on the rise in America, especially in our cities."
While Sessions admitted that crime rates in the US were at "historic" lows, he pointed out that, according to the
FBI, incidents of violent crime rose by more than 3% between 2014 and 2015. Sessions tied this increase in
violence to the "unprecedented epidemic" of heroin and opioid abuse.
"My fear is that this surge in violent crime is not a 'blip,' but the start of a dangerous new trend," Sessions said. "I
worry that we risk losing the hard-won gains that have made America a safer and more prosperous place."
Sessions outlined three main ways to fight the "scourge" of drugs: criminal enforcement, treatment, and
prevention. He highlighted prevention campaigns — including Nancy Reagan's "Just say No" efforts — as
effective tools for bringing down rates of drug use.
The results of "Just Say No," and similar abstinence-oriented prevention campaigns like D.A.R.E, are mixed. A
2007 study from the University of Missouri, St. Louis found that the programs are mostly over-funded and
ineffective.
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However, a 2011 study, cited by Scientific American, from the University of Texas School of Public Health found
that certain abstinence programs can be effective, provided they reinforce the lessons over a multi-year time
period.
Taking it back to the '80's
A Drug Enforcement Administration officer patrols outside of a medical clinic in Little Rock, Ark.,
Wednesday, May 20, 2015.
AP Photo/Danny Johnston
Criminal justice and drug policy experts say that Sessions' focus on cracking down on drug offenders is an unwise
strategy borne out of the "War on Drugs" era of the '80s and '90s.
Michael Collins, the deputy director of the Drug Policy Alliance, called Sessions' emphasis on sentencing and
enforcement as a response to the opioid epidemic "deeply disconcerting."
"He appears intent on taking us back to the 1980's with his drug war rhetoric," Collins told Business
Insider. "Locking up more people exacerbates the problem."
Marc Schindler, the executive director of the Justice Policy Institute, criticized Sessions support of Project Exile,
which he called "political will" to remove black and brown people from communities. The program heavily
penalizes gun offenders, according to Schindler, but does nothing to stem the flow of guns into cities and
neighborhoods.
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"The approach to addressing violence in our communities being put forth by AG Sessions is not based on
research, and lacks the context that should be considered to inform sound policy decisions," Schindler told
Business Insider in an email.
The research on Project Exile is far from clear. FiveThirtyEight has the rundown: A 2003 study found that in
Richmond, Virginia — where Sessions gave his speech — the city would have experienced a similar reduction in
homicide rates with or without Exile.
But, a 2009 study found evidence supporting Exile's efficacy. Among the sample group, cities with high levels of
federal prosecution for federal gun crimes experienced a 13% decrease in violent crimes, compared to an 8%
increase in cities that didn't, even when controlling for other factors like incarceration rates and poverty.
However, "none of this stuff is as neat as even the peer-reviewed publications put it," John Klofas, a professor of
criminal justice at the Rochester Institute of Technology told FiveThirtyEight.
John Pfaff, a law professor at Fordham University in New York who recently published a book on the causes of
mass incarceration, told Business Insider in an email that Sessions is probably not trying to specifically revive the
"War on Drugs," but rather looking to justify "harsh punitive responses to crime more broadly." Incarceration
would be an easy sell politically for Sessions and the Trump Administration, even if its an inefficient way of
controlling crime, he added.
"Sessions' insistence that the recent uptick in violent crime is not just a blip but the start of a longer trend (which,
to be fair, could be the case — but also may not be so at all) seems to be part of a rhetorical push to make nonprison reforms riskier to adopt," Pfaff said.
A variety of medicinal marijuana buds in jars are pictured at Los Angeles Patients & Caregivers Group
dispensary in West Hollywood.
Thomson Reuters
Sessions vs. marijuana
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Sessions honed in on his opposition to legalizing marijuana on Wednesday, saying that he "realizes this may be
unfashionable in a time of growing tolerance of drug use."
Pfaff suggested that Session's comment on marijuana may have "the biggest short-run impact."
Sessions railed against medical marijuana, and the notion that increasing access to the drug can be a tool to help
counter opioid and heroin addiction. Research has shown that in states that have legalized medical marijuana,
addiction and opioid overdose rates have dropped, reports Business Insider Kevin Loria.
Though he's opposed to marijuana legalization, Sessions did tell reporters after his remarks that he may keep the
Obama-era Cole Memo — which directs the Justice Department to place a low priority on prosecuting legal
marijuana businesses that comply with state laws — though with some modifications, reports MassRoots' Tom
Angell.
Sessions indicated that the federal government may not have the ability to enforce federal marijuana laws in
states that have legalized.
Mason Tvert, the communications director for the Marijuana Policy Project, told Business Insider in an email
that Sessions' comments do not seem like a "call to shut down" licensed and regulated marijuana businesses.
"It sounds more like a call to go after unregulated marijuana producers and dealers who are operating in the
illicit market," Tvert said.
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