A New Theory on Mass Incarceration

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  1. Avatar Griff
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    I think Prof. Pfaff’s work is really interesting, and it’s valuable to have someone do the empirical lifting. That said, there are some limitations in his data that he doesn’t fully acknowledge, and some of the conclusions he draws are a bit questionable.

    As to the first, he mentions in passing that the regions he has accurate data for are “northern and northwestern states.” For the most part, these are not the states where the policy issues of systemic racial injustice and draconian mandatory minimums are most salient. California, Florida, Texas, and the Deep South are the states we’d really want good data on in order to think about the effects of mandatory minimums and other lengthy prison sentences.

    On the conclusion side, the narrow focus on “prison population” means overlooking a big part of the story: people serving misdemeanor or minor felony sentences in county jails. This is where the war on drugs really shows up. Nine months or a year in county jail is a big deal; it can totally derail someone’s life. At which point a downward spiral can start that results in more crime and eventual serious felony charges, the sentences for which will be enhanced based on the defendant’s prior offenses. I’d also say Pfaff is too quick to write off decreased prosecutorial bargaining power as a potentially significant change.

    All that being said, I agree with him on the bigger picture points that we need to be willing to think harder about true structural reform and how to deal with violent offenders, and that we can’t get ourselves out of the position we’re in just by reforming our drug laws.Report

    • Avatar Saul Degraw in reply to Griff
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      says:

      This is true. There are also overlaps in violence and property crimes and drugs. How much theft is done to support a drug habit? How many crimes of violence are directly or indirectly caused by the illegal nature of narcotics? Etc.Report

      • Avatar Michael Cain in reply to Saul Degraw
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        says:

        The last one is part of what I was thinking. Inmate X is in for murder; if the murder happened because of a drug deal gone bad, it ought to count as a drug crime.Report

      • Avatar Saul DeGraw in reply to Saul Degraw
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        says:

        @michael-cain

        I agree but I guess it can also be confusing. I read a book a while ago about how meth destroyed small towns in Iowa called methland. There was one guy who made his step daughter perform oral sex on him and he allegedly did this because the meth made him think his stepdaughter was the devil or possessed by the devil or something like that. How much of this is a drug crime or was the drug abuse merely a pretext? Obviously some cases are easier than others to decide the pretext or related nature on.

        Also if it was a completely drug-based delusion, it adds complications to ending the war on drugs and legalizing some narcotics.*

        *I’ve never been about legalizing all narcotics. I support legalizing marijuana, hash, shrooms, LSD, and MDMA. I am not sure how I feel about legalizing meth and heroin.Report

      • Avatar KatherineMW in reply to Saul Degraw
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        says:

        How much theft is done to support a drug habit?

        Saul: Is there any reason to believe legalization would prevent this? People steal to support addictions to cigarettes and alcohol as well.

        Your second comment also makes a good point: what about crimes that are directly caused by drug use and by the chemical effects drugs have on people?

        There are drug-related crime issues that aren’t caused by the War on Drugs or the illegal status of drugs.Report

      • Avatar Saul Degraw in reply to Saul Degraw
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        says:

        Sure there are people who steal to support cig and alcohol habits but that is much less than people who steal to support drug habits. Legalization will lead to lower prices because there will not be an extra barrier for production and sale.Report

    • Avatar Mad Rocket Scientist in reply to Griff
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      says:

      How much of all this is also driven by police having contact/tickets/arrest quotas, either formal or informal? PDs use such statistics to measure officer performance and to justify their budgets. If officers are encouraged/incentivized to make arrests whenever possible, then situations where the officer might have just acted as an impartial arbiter turn into situations where somebody is leaving in handcuffs.Report

  2. Avatar Mike Schilling
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    says:

    A few years ago I remember reading an interview with a sports statistics guy who had a side fascination with murder and violent crime.

    Probably Bill James.Report

    • Avatar Saul DeGraw in reply to Mike Schilling
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      says:

      Thank you!!! I was thinking of Bill James and found the interview.Report

      • Avatar Kazzy in reply to Saul DeGraw
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        says:

        Does James offer any evidence for his theory on bar fights?Report

      • Avatar Saul DeGraw in reply to Saul DeGraw
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        says:

        @kazzy

        It is at the end of the interview and seems pretty anecdotal.

        “Question: I once watched a speech by a Canadian philosopher named Steven Pinker, and he argued that the world is continually becoming less violent. He wasn’t talking about urban crime as much as war and disasters, but I’m wondering if you agree with that thesis: Is the world less violent than it used to be?

        Answer: If you go back in human history, people witnessed bloodshed on a wide-scale basis all the time. The Romans didn’t have gladiatorial shows where people were killed every once in a while — they happened all the goddamn time. If you were a sports fan in ancient Rome and you wanted to watch people torn apart by wild animals, you could do so many times a year. So it’s true that the world is profoundly less violent than it used to be. … I knew a person when I was very young — a person who graduated from high school around the same time I did. … He had been with a woman when he was 18, and they had a son. The boy fell down some steps and died. Most everybody in town thought the child was a victim of abuse and that the man should be prosecuted for murder, but he never was. Now, if that had happened just three years later, he would have been prosecuted — because during those three years, there was a media uproar over child abuse. When I was young, I once had a realization while reading the newspaper about just how many things we now consider murder that were not seen as murder 100 years before. In 1950, if there was a fight in a bar and someone was killed, the police would ask, “Was it a fair fight?” If it was a fair fight, it might be manslaughter, but also might be nothing. When I played football in high school, our coach would work us as hard as he could on hot days and not let us have water. And you’d see stories in the newspaper, maybe 10 times a year, where some kid would die from this. Yet coaches still did it. But that would never happen now, because the coach would be charged with murder. We continually become less tolerant of actions that lead to death. The human race has been in a long struggle to eliminate murder. And we will succeed. ”

        There is a way to do a study on deaths and convictions via bar fight by analyzing newstories and criminal convictions though.Report

      • Avatar Saul DeGraw in reply to Saul DeGraw
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        says:

        That being said. I think he is generally right and it is a general truism that concepts of what is and what is not a crime change as time moves on.

        Prosecutors are ethically and legally not supposed to bring charges against someone unless they have a good-faith belief that they can prove the charges beyond a reasonable doubt. There are plenty of times in the media when a prosecutor announces that he or she is not bringing charges because of a lack of evidence and this produces an outrage. A good example is over the recent financial crisis. A lot of people on the left are angry about the lack of criminal convictions and trials especially of Wall Street higher-ups. The U.S. Attorney in charge of Wall Street, Preet Bharara, claims that there is not enough evidence to convict. A lot of people on the left are suspicious and think he has political ambitions and does not want to alienate potential campaign donors by going after the big guys.Report

      • Avatar Griff in reply to Saul DeGraw
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        says:

        @saul-degraw

        Granted, that is how prosecutors are SUPPOSED to act. However, it’s a little tougher to come up with examples of them declining to prosecute for lack of evidence when the potential defendant is not a member of the systemic power structure (bankers, police, politicians, etc). One good reason for this is that prosecutors know in practice it doesn’t matter whether they have enough evidence. If the cops say someone is a criminal, it makes perfect sense for the prosecutor to go ahead and bring charges. If they can overcharge severely enough (which they usually can), the person will most likely go ahead and plead guilty to a lesser offense in order to avoid getting slammed with a 20-year prison sentence.Report

      • Avatar Michael Cain in reply to Saul DeGraw
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        says:

        Granted, that is how prosecutors are SUPPOSED to act. However, it’s a little tougher to come up with examples of them declining to prosecute for lack of evidence…

        Have you looked at your local prosecutor or DA’s success rate lately? In a typical county or city in the US, it’s 95% or above. Open-and-shut cases are plea bargained down a little; so-so cases are plea bargained down more; other than something that’s particularly high profile, marginal cases are dismissed or plea bargained down to misdemeanors and short sentences in county jail. Relatively few of those felony wins are in court. We simply don’t fund the prosecutors and courts sufficiently to reliably enforce the laws we have on the books.Report

      • Avatar Mad Rocket Scientist in reply to Saul DeGraw
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        says:

        We simply don’t fund the prosecutors and courts sufficiently to reliably enforce the laws we have on the books.

        Perhaps we have just a few too many laws on the books?Report

      • Avatar Saul Degraw in reply to Saul DeGraw
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        says:

        @mad-rocket-scientist

        The problem with saying we have too many laws on the books is that generally deciding which laws remain on the books or not is an inherently political act and we are currently in the political equivalent of trench warfare with no end in sight.

        Also it is vague. Which laws? Perhaps Bill James is right and we are just accepting less violence as a matter of daily life. So no more passes for bar fights or just nights in the drunk tank until you cool down.Report

      • Avatar Mad Rocket Scientist in reply to Saul DeGraw
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        says:

        @saul-degraw

        Our abundance of laws seems, to me, to be a technical issue, and a vengeance issue, rather than an issue of insufficient laws to deal with violence.

        I was just reading today about a case in Oregon where a man took upskirt photos of a 13 year old girl & the judge had to dismiss the case because the law would not support the charges. I have to wonder, are Oregon’s laws so lacking that the DA could find no crime to charge this guy with, or were they merely lacking in hardcore felony statutes, so the DA reached for something tougher?

        So do we need more laws so actions that offend our sensibilities can be made into crimes & punished harshly, or should we rather just accept that the law isn’t perfect, and some actions, while offensive, and arguably criminal, are not going to result in prison time.Report

  3. Avatar LeeEsq
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    says:

    An international comparison might be in order here. American society has always been more comfortable with informal violence than many other societies in the developed world. European countries have bar fights to and aren’t that forgiving of drunken douchery either. If anything, they might be more unforgiving of drunken violence. They still have lower rates of incarceration than America does.Report

    • Avatar Saul Degraw in reply to LeeEsq
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      says:

      So what does Europe do for alternative punishments?Report

      • Avatar LeeEsq in reply to Saul Degraw
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        says:

        I don’t think they do alternative punishments per se but the treat a lot of what we see as criminal offenses as social problems instead many times. They try to deal with it through their welfare system as much as possible, especially in the Scandinavian countries. France seems to have a similar incarceration policy to the United States, you just replace African and Hispanic-American with Muslim but the results are the same.Report

      • Avatar James K in reply to Saul Degraw
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        says:

        @saul-degraw

        I think a lot of the difference in imprisonment rates comes not from a lower rate of convictions, but shorter sentencing. A life sentence only lasts for 20 years in New Zealand, and is still subject to parole. Furthermore, sentences are served concurrently, so in practice you only serve the longest sentence you are given.Report

    • Avatar KatherineMW in reply to LeeEsq
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      says:

      That’s exactly what I was thinking, Lee. This can’t just be about penalizing violence more harshly than we used to, because most of the western world has a similar or lower tolerance for violence than the US has, and virtually every developed country has much lower incarceration rates.

      Another thing you see when you look at international statistics on crime is that countries with higher levels of inequality generally have more crime (it’s a big part of why crime rates are so high in Latin America). Income inequality in the US – and in much of the world – has been rising since the mid-1970s, with incomes rising rapidly for the very rich and stagnating for most people. The 1980s and early ’90s in particular saw substantial income growth for the rich and little or none – or income decline – for the poor. I don’t think it’s coincidental that the spike in US crime rates happened during the same period of the mid-70s to early 90s.

      As a third point, I presume that Professor Pfaff has done far more comprehensive research and data analysis on this than looking at one website, but his claims don’t match up to the stats from the Bureau of Prisons, which has 48.7% of the prison population in prison for drug offenses: http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp

      In contrast, 4% of imprisoned people are in jail for “burglary, larceny, and property offences” and another 3.7% for “robbery”; 2.9% of people in prison are there for serious violence crime (kidnapping, aggravated assault, and homicide).

      Only 0.4% are there for “banking and insurance, counterfeiting, and embezzlement”, so punishing people like Madoff – and punishing white-collar crime in general – has nothing to do with the rising prison population. Due to wealth and expensive lawyers and general disinclination to prosecute rich people relative to poor people, white-collar crime is probably far less likely to be punished than other crimes.

      Without more detail on Pfaff’s research, my guess would be that he might be looking at the number of people in prison solely for drug possession and drug trafficking offenses, and that there are many other offenses related to the drug trade which he isn’t counting.Report

  4. Avatar Damon
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    says:

    I’ve always been a big fan of caning, tar and feathering, and the stocks.Report

    • Avatar LeeEsq in reply to Damon
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      I believe all of these violate the 8th Amendment to the Constitution and Enlightenment values.Report

      • Avatar aaron david in reply to LeeEsq
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        says:

        @leeesq
        The problem with that is “cruel” and ‘unusual” are open to interpretation. If not enough of the populous thinks the above is either, then they are not.Report

      • Avatar LeeEsq in reply to LeeEsq
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        says:

        @aaron-david, the case law is well settled that any punishment designed to inflict physical pain or humiliation is cruel and unusual. The death penalty is under scrutiny because the punishment for capital crimes is supposed to be death but not the accompanying pain. Death is supposed to be as painless and dignified as possible. Its just really hard to end life without inflicting a great deal of pain.Report

      • Avatar aaron david in reply to LeeEsq
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        says:

        @leeesq
        And if the population elects judges and representitives who would push that idea, then case law changes and old ideas fall by the wayside. I read recently, I think on Balko, thought on firing squads being reintroduced in two states:
        http://www.washingtonpost.com/news/the-watch/wp/2015/02/06/in-praise-of-the-firing-squad/

        And if law was that settled, I don’t think we would be having the same conversations about abortion and gun control.Report

      • Avatar Mo in reply to LeeEsq
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        says:

        @leeesq I would take a caning over a year in a federal or state penitentiary any day of the week. 2 days in the stocks would suck, but also be preferable to a year in prison.Report

      • Avatar Saul Degraw in reply to LeeEsq
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        says:

        @mo

        Out of curiosity,

        Is there a level of lashings or physical punishment that would get you to reconsider that statement?Report

      • Avatar Mo in reply to LeeEsq
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        says:

        @saul-degraw Most certainly. I’d take the year over two days in the stocks in the Northeast right now, for instance. It also depends on the duration in prison as well. I would note that I have heard that at a certain point there’s no difference between lashing X and lashing X+10 because you’re numb. If we start getting into crazy torture stuff like bamboo shoots under finger nails or the like, my tough guy veneer goes away.

        I wouldn’t mind giving it as an option for punishment though.Report

  5. Avatar Michael Cain
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    says:

    Anecdotally… Some years back the Colorado legislature changed its rules and every bill with sentencing provisions had to go through fiscal analysis to determine its impact on the budget. During the Great Recession, some of those bills were killed in the Appropriations Committees because they would add $X to General Fund spending, and the bills’ sponsors couldn’t find any place to cut other GF spending that was acceptable to the committee members (at that time, the GF was very much a zero-sum game).Report

  6. Avatar aaron david
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    says:

    “The town of Beachy Head, England, had a big problem with suicide; people threw themselves off its dramatic cliffs. In 1975, however, it managed to cut the rate of suicide in half in a single year. An improvement in the national mood? Or a dramatic triumph of public policy?

    A new medical examiner. The new chap decided to test the blood alcohol level of bodies found at the base of the cliffs. Those with alcohol in their blood were ruled to be accidents, rather than suicides.

    You might argue that people bent on suicide could be taking a drink to fortify their courage before attempting to take their own lives — and you’d probably be right. Which is exactly the point.”
    – Megan McArdle

    I think you could easily move stats around to prove anything you want in this regard. Is this a property crime, or a drug crime. Change gun crime rates by adding/subtracting suicides. Make the numbers look better or worse, depending on what you are trying to do.Report

  7. Avatar zic
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    says:

    Professor Pfaff ends his interview by suggesting that it is very good to end the War on Drugs but it won’t really do anything to end the mass incarceration crisis. His suggestion is that we might need to come up with alternative punishments for people who commit violent crimes and property crimes.

    Haven’t listened yet, but my initial reaction would be to question how he handled charges since ‘throw the book at ’em’ policing, which often results on violent/personal property crimes, often seem to stem from the WOD, often the reason to find other charges in the first place.

    /haven’t liReport

    • Avatar zic in reply to zic
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      says:

      I finally got around to reading this, and this is exactly what Pfaff says:

      So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

      Grunt work to study, but not impossible; start with initial charges filed and then add later pile-on charges.Report

  8. Avatar kylind
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    says:

    I’d argue that the high incarceration rate in the US (compared to Europe) is partly explained by stricter sentences all around.

    A lot of liberals and libertarians say that drug sentences and three-strikes laws should be lowered or abolished and I’d agree with them, but that alone does not solve the problem.
    These are crimes that those people don’t really think of as crimes anyway, so it’s easy to advocate lowering their punishments.
    Look at comment sections on even very liberal sites whenever someone gets a low sentence or gets away with (for instance) drunk driving, bullying, animal cruelty or even tax evasion. These are things they actually disapprove of and they cry for more punishment. (Maybe they are right for some of them.)

    This is how you end up with a huge prison population. If you let your gut reaction to hearing something bad influence your judgment, this is what it will lead to.
    Filling up the prisons doesn’t feel bad to the majority of people. It feels right and like justice is finally done and they get what they deserve! So if you’re doing prison reform with those same motivations, you’ll just end up with prisons full of different kinds of people, but you won’t actually change the system itself.

    I don’t advocate forgiveness, but maybe mercy is a better word. Someone does something bad and then we do not lock them away forever. Again, it’s easy to be merciful to someone who hasn’t actually hurt you, but much harder to be merciful to someone you think has actually done something really bad.Report

    • Avatar Mo in reply to kylind
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      says:

      Europe tends to have significantly lower limits for DUIs. It is commonly 0.05 BACReport

    • Avatar Saul Degraw in reply to kylind
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      says:

      @kylind

      I largely agree but would not place it just on liberals. This is probably how bipartisanship works in this country. Conservatives get harsh punishments for the crimes that they want punished and liberals get harshness for the crimes they want punished.

      One of the hardest things for a society to do is to strike a balance between compassion and support for the victims of crime while also not going over the wall crazy with mass incarceration and draconian punishments. I am not sure what the right balance is.Report

  9. Avatar Kolohe
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    says:

    Professor Pfaff does not think that the War on Drugs is not the primary culprit of the mass incarceration crisis.

    whoa, dude, chill out on the negative wavesReport

  10. Avatar Glyph
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    says:

    Off-topic, but are we entirely sure that some of the underlying crimes that filled the prisons were committed at all?

    (NOTE: I put this here mostly because I thought it interesting, and I am not alleging that the prison-industrial complex is collaborating with police interrogators to completely make up crimes out of whole cloth, just to fill prison bunks. That’s a level of paranoia even beyond me. Thankfully, we still need a victim to allege a crime and evidence to prove it, which means that most of the time, even if we are imprisoning the WRONG somebody, it’s probably at least still in response to a crime.

    But God help us all if anyone gets the bright idea to implant corroborating false memories in ‘victims’ too, which probably isn’t much harder – actually, this wouldn’t be a bad plot for a spy/political thriller – implant a false memory of a crime in a ‘victim’, along with a false memory of ‘perpetrating’ that crime in a political leader, and boom – instant political scandal which the leader might not even try to fight, since he thinks he did it).Report

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