Wednesday, September 30, 2015

Blaming over-aggressive prosecutors for mass incarceration

Following Prof. John Pfaff of Fordham University, New York Times columnist David Brooks laid blame for mass incarceration primarily at the feet of prosecutors for harsher charging decisions related to low-level offenses.

Grits agreed with much of his analysis and have made similar observations myself. But I'm less willing to dismiss out of hand the role of the drug war and longer sentences in expanding mass incarceration.

For example, while it's true that a relatively small percentage of prisoners are incarcerated for drug crimes (in Texas, 16% of prisoners as of 8/31/14), a significant portion of violent crime is related to smuggling and drug sales as a result of privatized protection services for participants in an illegal market. We're talking about vendors who would be protected - as are, for example, Budweiser, Miller, or Corona - if they sold a different product. (The TV show The Wire depicted the relationship between drug crime and murder rates pretty graphically over its 5-season run.)

You'll frequently hear local law enforcement claim all or nearly all crime they see is related to drug addiction - e.g., burglaries to pay for drugs, etc. - to the point where Grits considers such comments overstated, especially when estimates of drug-caused crime top 80 or 90 percent. But there's little question that the drug trade is responsible for layers of criminality beyond the 16 percent of Texas prisoners locked up solely for drug possession or sales.

Our pal Adam Gelb from the Pew Charitable Trust corrected another overstated element from Brooks' column in a comment at Sentencing Law and Policy:
time served did increase substantially. Our Time Served report found that across all crimes it rose from 2.1 to 2.9 years (36%) from 1990 to 2009. For violent crimes, it went from 3.7 years (37%); property crimes 1.8 to 2.3 years (24%), and 1.6 to 2.2 years (36%) for drug crimes. This doesn't mean longer time served is the only or even the most important factor in prison growth. It's one of many, and can't be ignored.
Similarly, neither can any data-driven analysis, certainly in Texas, ignore the role of the drug war when it comes to low-level offenders cycling in and out of county jails. A column in the Houston Chronicle today titled "Harris County should stop jailing small-time drug offenders" isn't wrong that drug-addicted offenders, along with the mentally ill and those with "dual diagnosis," in the bureaucratic lingo (both drug addicted and mentally ill), soak up a huge proportion of local criminal justice resources when at root what's needed to reduce addiction and low-level criminality is more akin to social work than traditional punishment.

Check out a new, related report from the Baker Institute at Rice University and the Texas Criminal Justice Coalition detailing "the economic and social benefits of expanding drug diversion programs in Harris County."

My own view is that, just as the big-picture reduction in crime over the last two decades has many causes, there are many reasons, not just one, that incarceration rates have remained stubbornly high and not declined as much as overall criminality. One reason is longer sentences, another is the war on drugs, another is more aggressive prosecutors, another is the substitution of criminal law for civil regulation, another is the generally low quality of indigent defense, and there are several other candidates besides. None of these are mutually exclusive. Rather, it's the confluence of multiple factors that makes the mass-incarceration nut so tough to crack.

MORE: From Doug Berman.


mike connelly said...

If sentences are longer, then times served will be longer if proportions stay the same. Those are the data that need to be discussed if we're going to assert that prosecutors aren't behind the longer times served, too, since they are definitely the main drivers behind the longer sentences in both their own practice and the political pressure they mobilize for and against policymakers proposing longer or shorter sentences and alternative dispositions.

Anonymous said...

If the prosecutor makes an unreasonable offer, it will be rejected and the case will go to trial. If it was really an unreasonable offer then the defendant will beat the offer at trial. It is foolish the blame the prosecutor when the DEFENDANT that agreed to take the plea, presumably on the advice of his DEFENSE ATTORNEY.

R Johnson said...

You are right in stating that most drug offenders are more in need of social work than criminal sentences. Most will not find drug addiction recovery without individualized treatment. When their sentence is completed, most will slip back into the old destructive patterns that landed them there in the first place.