English Quiz 4 Questions

2/24/2018
The other side of Black Lives Matter
ocial Moilit Memo
The Other Side of lack Live Matter
William J. Wilon Monda, Decemer 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
https://www.brookings.edu/blog/social-mobility-memos/2015/12/14/the-other-side-of-black-lives-matter/
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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.
https://www.brookings.edu/blog/social-mobility-memos/2015/12/14/the-other-side-of-black-lives-matter/
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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.
https://www.brookings.edu/blog/social-mobility-memos/2015/12/14/the-other-side-of-black-lives-matter/
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Drug offenders in American prisons: The critical distinction between stock and flow
ocial Moilit Memo
Drug offender in American prion: The critical ditinction
etween tock and flow
Jonathan Rothwell Wedneda, Novemer 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
https://www.brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-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:
https://www.brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-flow/
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Drug offenders in American prisons: The critical distinction between stock and flow
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:
https://www.brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-flow/
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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
https://www.brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-flow/
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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.
https://www.brookings.edu/blog/social-mobility-memos/2015/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-flow/
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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.
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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
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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
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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.
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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  

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