Thursday, October 05, 2017

Turns out drug war did contribute significantly to mass incarceration

A new quantitative analysis with cool graphical representations, to me, puts the final nails in the coffin of some of the interesting-but-problematic theories being touted in the past couple of years by Fordham law professor John Pfaff.

When Pfaff began promoting his revisionist counter-narratives on the causes of mass incarceration, it took Grits a while to figure out what was wrong with his analysis. But by the time his book was published, I was able to articulate it in this review, rebutting the trends he claimed to spot using Texas data. Now, we have a national analysis showing the same problems with Pfaff's suppositions, exposing flaws with his recommendations for reform.

Pfaff basically staked out two claims that he believed debunked the approach most experienced reformers were taking toward reducing incarceration: He believed the drug war is an insignificant contributor to mass incarceration, mocking Michelle Alexander and other critics who had claimed the drug war was central to its rise. And he poo pooed the effects of increased sentence lengths, pointing out that average sentence lengths were going down.

These were obfuscations, in the end, and both wrong. It turned out, growth in very long sentences for one group in particular - murderers and other serious violent offenders - contributed significantly to mass incarceration. By looking at averages, pooling a small number of violent offenders with large numbers of nonviolent ones, most of whom had relatively short sentences, Pfaff's analysis masked variation by offense.

The above-linked analysis used a neat graphical trick to show Pfaff was wrong to belittle the drug war's contributions to mass incarceration. The author depicted incarceration with graphic rectangles, using the number of prison admissions as the height and length of stay in years as the width. Viewed thusly, it's easy to see that the drug war was a big (but not the only) contributor:


As the author describes it: "Most of the vertical growth — the growth in admissions — was in “public order/other” and “drug” offenses ... But those offenses apparently had short prison terms that didn’t get much longer, so they didn’t contribute as much to area growth — the growth in the incarceration rate."

That's exactly right. Corrections data are dynamic and dependent. You cannot look at any one trend in isolation, ever, which is why Chicken Little reactions to one or two years of increasing murder rates are generally misplaced. There are multiple causes of mass incarceration, and two of them are 1) increased nonviolent prison admissions and 2) increased sentence lengths for violent offenders, especially super-long sentences for murderers, which have contributed to the growth in prison units that look more like geriatric wards.

Certainly, there were portions of Pfaff's analysis Grits found useful. I've praised his suggestion for a cap and trade proposal. And his call for the feds to pick up costs for local indigent defense was spot on. (Texas counties complain rising indigent defense costs are an unfunded mandate from the state, but really they're an unfunded mandate from the Sixth Amendment to the US Constitution.)

Further, Pfaff's observations about prosecutors' contributions to mass incarceration - doubling the number of convictions per arrest as the number of crimes and arrests declined - hold true for Texas as well and is an important contribution to our understanding of mass incarceration. (This blog had revealed a similar pattern among Texas prosecutors back in 2013.) But it does not then follow, as Pfaff's book suggests, that the only viable reform approach must focus primarily on prosecutors. Because of the diffuse structure of the justice system, reformers don't have leverage points which can affect their discretion in that way.

That's why, as I'd said in Grits' review, "one can follow Prof. Pfaff's logic all the way to the end and, while much of it is thought provoking, still find it to be of little use to reformers seeking change on the front lines in the states, which is where he rightly insists the real action of criminal-justice reform takes place." Rather, "at the end of the day, he's just wrong about where the American criminal-justice reform movement should focus and why." We must confront the problem of too-long sentences. And we must roll back the drug war.

13 comments:

Gadfly said...

In other words, because of the already longer length of murder sentences, they were skewing the average. Good point.

Gadfly said...

Oh, next time you do a "roundup" of links, this by Slate on driving responsibility fees, etc., might make your list: https://slate.com/business/2017/09/state-lawmakers-have-trapped-millions-of-americans-in-debt-by-taking-their-licenses.html

Anonymous said...

Great post and the prior book review. Why won't these academics just shut the fuck up and accept what trench/front line practitioners know about the criminal justice system and reform rather than dressing up some bullshit contrarian crap with excel spreadsheets that tell us nothing. Oh, right, they are academics.

Steve said...

Thanks, Grits, for a very good post that brought some good facts together.

April Cunningham said...

Can someone please explain to how a 1st time noneviolent offender/drug offender receive a LIFE SENTENCE in the State of Texas based on the information provided?

April Cunningham said...

Steve can you please explain to how a 1st time noneviolent offender/drug offender receive a LIFE SENTENCE in the State of Texas based on the information provided?

Anonymous said...

The drug war is not static either and generalized comments which fail to recognize the unique problems caused by different TYPES of drugs is not informative or helpful. Methamphetamine which is plaguing many parts of our state is different from anything we've seen before in the drug culture. Its devastating impact upon individuals and families and the very low rehabilitation success rate for meth abusers seriously limits the criminal justice system's options for dealing with these offenders. And just burying our head in the sand and pretending this is only some "victimless crime" is terribly naive.

Gritsforbreakfast said...

@5:32, How many different drugs have we been told are "different from anything we've seen before in the drug culture"? Damn near everything, at one point or another. Even pot (weed today is 100x more powerful than at Woodstock, etc..) The meme is becoming tiresome.

Especially because, it's not different. It's the same. We're criminalizing addiction without providing treatment resources (hence the "low rehabilitation success rate") and it's not working. The fix is to cut penalties for low-level possession and use the savings for treatment services.

The problems you're decrying are occurring under the status quo, so it's hard to defend it. Maybe it's time for a different approach?

Gritsforbreakfast said...

April, they can receive a life sentence, but most don't and the average drug sentence is much lower.

Maia Szalavitz said...

also, no one seems to recognize how the drug war contributes to mass incarceration by *increasing* murder and violent crime linked with the trade. Seeing the rise in homicide and the longer sentences associated with it as being not linked to the drug war is rather bizarre, given how much of it was due to fights for turf by dealers during the crack years and then other people in those neighborhoods getting armed to protect themselves and this, itself, escalating violence.

even if you thought violent crime sentences and prosecutors were the key contributor and ignored the rise in insane mandatories for nonviolent drug crimes, to say that this stuff had nothing to do with focusing on keeping certain drugs illegal and cracking down on that trade makes no sense.

Gritsforbreakfast said...

Maia, until very recently, homicides have been declining for more than 20 years. The drug war may have increased violence in the '80s, but after 1991 the relationship is less clear.

Maia Szalavitz said...

Right, that was the period I meant... the time when the drug war was pressed most intensely— and before the new crack markets had time to develop any stability.

Anonymous said...

"We must confront the problem of too-long sentences." Why, exactly, do we want shorter sentences for violent criminals?