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.