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Law

Jeff Sessions Probably Can't Restart the Incarceration Boom

Reducing prison populations is mostly in the hands of state and local governments.

Over the past few years, a bipartisan coalition of reformers has been arguing that the U.S. imprisons too many people, especially drug offenders, and leaves them behind bars for too long. Their efforts even seem to have had some effect, with the incarceration rate declining every year since 2008.

On Wednesday night, the Senate confirmed a new attorney general, Jeff Sessions, who seems to disagree pretty strongly with those assessments. So is the whole criminal-justice-reform movement dead, or at least on hold? Is the incarceration rate about to start rising again?

Probably not. At least, that's the message of a new book out this week, John Pfaff's "Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform." It's also more or less what Pfaff, a professor at the Fordham University School of Law in New York, replied when I e-mailed him this morning:

Sessions is clearly no friend of the criminal justice reform movement. He appears to reject even those reforms that enjoy broad bipartisan support at both the state and federal level -- like reducing the use of civil asset forfeiture or scaling back drug enforcement -- and he is clearly opposed to more contested issues like police reform. Sessions' DOJ is also unlikely to focus much, if at all, on issues of racial inequality in criminal justice more broadly.

That said, at least when it comes to prison reform, the shift to Sessions may not have much of an impact. The push to reduce prison populations is driven far more by state- and county-level politics, not federal. And the federal government has almost no control, directly or indirectly, over those most capable of reining in our use of prisons, namely prosecutors. The rhetoric of "carnage" coming out the White House certainly won't help reform efforts, but I think whether prison reform continues or falters will turn far more on what is happening locally than the policies and statements coming from DC.

I've written about Pfaff's work before, and he's already made the arguments in "Locked In" in a series of law review articles. But the new book is a succinct, powerful explanation of why much of what we think about the incarceration boom is probably wrong.

Let's get a sense of what that boom has looked like: 1

The Incarceration Boom

State and federal prisoners per 100,000 population

Sources: Bureau of Justice Statistics, Bureau of Economic Analysis, Census Bureau

Pfaff describes a "standard story" of what drove this increase in incarceration -- the war on drugs and tougher sentencing laws, mainly -- and proceeds to poke some gaping holes in it. Drug sentences accounted for only 21 percent of the increase in state prison populations from 1980 through 2009, he writes, while average time spent behind bars actually declined for seven out of 10 crime categories from 2000 to 2010.

So what did drive the boom? Well, first, there was a spectacular increase in the crime rate starting in the mid-1960s. Police departments and prosecutors were at first overwhelmed by this, succeeded belatedly in throwing more and more of these criminals in prison starting in the 1980s, and kept up the incarcerating even as crime rates began to decline in the 1990s. Here's a different way of looking at the incarceration rate -- the number of state and federal prisoners per 1,000 violent crimes -- that nicely illustrates what's been going on: 2

Another View of the Incarceration Boom

State and federal prisoners per 1,000 crimes committed

Sources: Bureau of Justice Statistics, Federal Bureau of Investigation

The key to all this, Pfaff argues, is local prosecutors. He believes this because that's what the data tell him -- his book is not so much a polemic as a quest for answers in criminal-justice data. There's even a little statistical drama, such as what happens after Pfaff unearths some previously unexamined National Center on State Courts data on felony cases filed since 1994:

When I first saw my own results, I stared at my computer for a few minutes in disbelief. I had expected to find that changes at every level -- arrests, prosecutions, admissions, even time served -- had pushed up prison populations. Yet across a wide number and variety of states, the pattern was the same: the only thing that really grew over time was the rate at which prosecutors filed felony charges against arrestees.

So all we have to do to reduce the incarceration rate is to get prosecutors to stop filing so many felony charges! Which is of course easier said than done. My interpretation of Pfaff's findings is that the crime wave of the 1960s through early 1990s (the violent-crime rate peaked in 1991) bred a new generation of hard-line prosecutors who have kept up the hard line even as crime rates have declined. In the book, Pfaff suggests several reforms that could partially contain their zeal, including more funding for public defenders, incentive grants to get prosecutors to focus on the most serious crimes, and charging and plea guidelines that restrict prosecutors' maneuvering room. Some of these reforms are already happening at the state and local levels, which may explain some of the decline in incarceration rates since 2008.

Hedge fund billionaire George Soros has opted for another approach, pouring millions of dollars into local district attorney campaigns in an effort to put less-punitive-minded prosecutors in office. According to Josh Siegel of the Daily Signal, the news operation of the right-leaning Heritage Foundation, Soros-backed candidates won in November in 10 out of the 12 races he was involved in. 3

Not everybody is thrilled with this reform movement, of course. Siegel quotes a few district attorneys angered at Soros's involvement. And here's Andrew King, an assistant prosecuting attorney in Ohio's Delaware County, reacting to a Boston Globe summary of Pfaff's ideas:

Are we ready to excuse violence against women and murder simply because we don’t like the numbers of people in prison for those things? Instead why don’t we focus on reducing the crimes committed, rather than avoid prison sentences because we’re more afraid of large numbers than the human toll violence incurs.

Yes, but ... the data clearly shows that felony prosecutions and incarceration kept on rising even as crime declined in the 1990s and 2000s. And the reason I started digging into this topic in the first place was because of the eye-opening finding by Nicholas Eberstadt of the right-leaning American Enterprise Institute that the high rate of felony convictions here was the single best explanation for why so many more men have dropped out of the labor force in the U.S. than in other affluent countries. That's a pretty terrible human toll, too.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. This chart is a replica of one in Pfaff's book, but I harvested the data myself from the Bureau of Justice Statistics, so any errors are mine. The 1925 through 1979 prisoner numbers come from this report, the 1980-2004 numbers from here, and the most recent numbers from here. The annual population estimates from the Census Bureau (pre-1929) and Bureau of Economic Analysis were both retrieved from the Federal Reserve Bank of St. Louis's Federal Reserve Economic Data site. Also, yes, this chart shows the decline in the incarceration rate starting after 2007, not 2008, as I write in the first paragraph of the column. That's because the chart doesn't include local jails -- there's not as much historical data on them.

  2. Again, this replicates a chart in Pfaff's book, but I harvested the data myself. The violent-crime numbers are available here.

  3. In at least one case, in Harris County, Texas, Soros's initial favorite lost in the Democratic primary, but then he backed the winning Democrat in the general election.

To contact the author of this story:
Justin Fox at justinfox@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net

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