Sunday, October 04, 2015

More on blaming prosecutors for mass incarceration, or, Pfaff's pfigures pfit Texas' pfacts

When Grits wrote about a David Brooks' NY Times column the other day, I'd failed to make the connection that Prof. John Pfaff, whose name looks like he should hail from Pflugerville, is the fellow who wrote a series of posts on PrawfsBlawg in 2014 which I quite enjoyed critiquing the National Research Council report on mass incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5Part 6Part 7Part 8, and Part 9 look at the role of prosecutors. Part 10 considers red herrings surrounding private prison debates. Check them out.

This morning Grits spent some time reading this recent law review article elaborating Pfaff's views.

Some critics of mass incarceration will find Pfaff's work quite challenging. If you're Michelle Alexander and you come to accept Pfaff's premise, it would require rethinking big chunks of your analysis and underlying assumptions. For Grits, though, his work pretty closely jibes with my own observations over the years.

While this blog only tracks Texas closely and Pfaff is reviewing national data, I find myself largely in agreement with his analysis, if not all of the conclusions David Brooks would draw from it. Pfaff disputed claims that mass incarceration is primarily caused by the drug war. Instead, he pins blame on county-level actors, specifically local prosecutors, whom he demonstrates have used their discretion and increased power (boosted through a combination of mandatory minimums, enhancement mechanisms, and drug-war era SCOTUS decisions scaling back the rights of the accused) to file felony charges ever-more frequently, even as crime declined.

Grits has made similar calculations before for Texas with similar results. The rate of convictions here far outpaced arrests or crime rates since the turn of the century and the number of new direct sentences to prison continued to increase even as crime declined. So Pfaff's thesis mostly matches Texas' experience, in this author's view.

Pfaff discounts the drug war as a cause for mass incarceration to an extent Mr. Brooks perhaps overstates. There's no doubt the drug war accounts for some portion of mass incarceration, which Pfaff doesn't dispute. In Texas, the 16% of state prisoners with a drug offense as the primary charge would be about 24,000 prisoners, which is nothing to sneeze at. But the drug war accounts for an even greater portion of local arrests and disproportionately fills up local jails, court dockets, and probation rolls. And the contribution of drug charges to expanding the number of people with criminal records is greater than those offenders' representation in prison, where length of stay for user-level possession remains short. For police, county jails, and probation departments, the drug war remains a bigger driver of both volume and cost.

Even so, I agree with Pfaff that the empowerment of prosecutors to increase the number of felony convictions, even when crime declines, is a core driver of mass incarceration and remains the greatest barrier to rolling it back. A recent letter from the San Antonio city manager to uniformed police officers included the following data
Comparing 2015 YTD (year-to-date, Jan. 1 through May 23) to 2014 YTD:
  • Violent crimes are down 0.3%
  • Property crimes are down 10.5%
  • Drug arrests are up 8.1%
  • Weapons arrests are up 18.8%
These numbers show how, when actual crimes decline, it's still possible to boost arrests and convictions in America's 21st century justice system. Weapons arrests are mostly targeting people with criminal records in possession of a firearm, not people who fired a gun, while drug arrests are far and away mostly for simple possession, and mostly for pot. Previously convicted felons and drug addicts form a pool for potential arrestees whose offenses are basically status crimes and thus can be prosecuted even if there's no victim or harm.

Prof. Pfaff's right to look to county actors to explain mass incarceration. If Grits were to fault his analysis at all, it would be that he doesn't dig deep enough into county-level dynamics, where policing priorities play as meaningful a role as prosecution decisions and the drug war, which he discounts as a major driver of state-level incarceration trends, arguably has a more important impact than his writing portrays.

MORE: Prof. Pfaff responded to this post in a series of Tweets. Well done. The reason Grits doesn't Tweet is that I've never been good at making arguments in 140 character chunks, which he does quite ably.


mike connelly said...

I agree with you both about Pfaff's importance and where he goes wrong. Prosecutors are the drivers but drug laws have been their main vehicles, along with grasping news media and popular media buying and selling their narratives far more often than not. Pfaff's tendency to stay on the surface and not dig in deeper is clear in the omission of DAs' impacts on selected (not all) legislative races to have heads to post on the gates to the town to warn others of the folly of challenging them. He also, in the private prison post, missed the selective nature of private company impacts because he mistakenly assumes that, if CCA isn't powerful in all states, it must not be powerful in any. As you know in TX and as we saw/see in OK, that's inaccurate. The national overincarceration can't be blamed totally on private prisons, but their successes have funded localized power bases that not only profit but lobby. IOW, the mix of factors is indeed interrelated and must be viewed at more than the surface level. But at the heart in most states you will find prosecutors with well-practiced and -shared game plans who must be overcome with the counter-narratives challenging both their "success" and their competencies in maximizing public safety before anything more than what's been called the "nano-reforms" of recent years can be morphed into longer lasting and more safety-effective policy.

DEWEY said...

D. A.' game plan: "Elections are coming up, gotta convict some low level drug users and get more notches in my belt !!"

John Pfaff said...

Thanks for (pfor?) this! It got me thinking, and since I lack a blog, I put up my thoughts here:

Anonymous said...

Drug arrests are up 8.1%
Weapons arrests are up 18.8%

Darn, Pfatt decided 'not' to tell us how many of theses were on probation / parole (aka: easypickens)at the time of arrest and were advised to avoid / stop a jury trial in progress, in order to Take the Plea(s) based on a little known fact - despite a guilty or, not verdict they were going to prison simply for being arrested due to being automatically revoked.

Hope that gets him thinking. If one is going to write about a topic in great detail and leaves major shit out, it makes folks wonder - Why?