A diagnosis of our criminal injustice system

Summary: John Pfaff’s Locked In describes our broken criminal justice system, its myths and secrets — and why reforms consistently fail. It is one of the most important books of the year. Let’s hope America pays attention.

 

A review of an important book.

Locked In.

The True Causes of Mass Incarceration –
and How to Achieve Real Reform.
By John F. Pfaff.

“Mass incarceration is one of the biggest social problems the United States faces today; our sprawling prison system imposes staggering economic, social, political, and racial costs.”

This is a powerful book, in which the author has marshaled a massive body of evidence to make a few points — which he fairly presents.

We do not know why crime skyrocketed from 1960 to 1992, and plunged after that. We do not know much about the operation of our fantastically complex criminal justice system. Data is not even collected about key aspects (e.g., actions of the key players: prosecutors). We do not apply much of what we do know about the system. Much of what we know is false (e.g., drug-related crimes are not the major driver of mass incarceration). Much of what we do is either ineffective or counterproductive.

Naturally, this system of applied ignorance works very poorly. It is more of a criminal injustice system, and an expensive one at that. He probably quit after 300 pages. He could have written another 300 showing how our peer nations run their systems more effectively.

Every chapter overflows with insights. Pfaff shows that our system has deep structural flaws. For example, a dollar spent on police is more effective than a dollar spent on prisons (for obvious reasons). But cities pay for their police while the States pay for prisons. So cities have an incentive to underinvest in policing. That is just one dysfunctional aspect of our fragmented system, with law enforcement in a bewildering and often feuding maze of jurisdictions at the local, State, and Federal level – with “oversight” (such as it is) divided among managers, judges, and legislators. The result is a policy stew without either recipe or master chef, cooked at a tea party from Alice’s Adventures in Wonderland.

The key actor in our broken system

The major insight Pfaff proves is the central role of prosecutors in the rising rates of incarceration. They have vast powers. Who to prosecute, for what crimes, and for what sentences – and little supervision.

“If sentences aren’t getting (much) longer, and if they aren’t that long to start with, then what is causing prison growth? The obvious answer is rising admissions – in fact, this must be true, since the only changes that can drive up prison populations are changes in the number of people entering prison or changes in the amount of time they spend there once they are admitted. And the person driving up admissions is the prosecutor. …

“This is a tremendous amount of power for one official to have, and it is made all the more powerful by the fact that prosecutors generally wield it out of public view. Nearly 95% of the cases that prosecutors decide to prosecute end up with the defendant pleading guilty. For all the courtroom drama we see on Law & Order, nearly everyone in prison ended up there by signing a piece of paper in a dingy conference room in a county office building, or in a dingier room in a local jail.”

Our thicket of overlapping laws, often with extremely high minimums, allows prosecutors to terrify defendants – most of whom have no effective legal aid – into pleading guilty to “lesser” charges.

“Taken together, these attributes and tools make prosecutors the most powerful actors in the criminal justice system. …Prosecutors …have used this power to drive up prison populations even as crime has declined over the past twenty or so years. To date, however, no state or federal level proposal aimed at cutting prison populations has sought to explicitly regulate this power. Everyone else in the criminal justice system currently faces reforms, such as efforts to change interactions between civilians and police, or to amend sentencing laws and parole policies. But prosecutors have remained untouched.”

It is a great gig. Only 15% of elections for district attorneys are contested, and the incumbent wins about 70% of those. And they usually win in court. Public defenders are underfunded and overwhelmed. Our ideals call for everyone to have their day in court with their defense counsel. But we do not want to pay for either one of these.

About reforms

We cannot effectively reform what we do not understand. Worse, Pfaff shows that the incentives on most actors in the system produce outcomes that work for them but are dysfunctional for America. So far, reforms have tinkered with individual aspects of the system. Most have had little effect. Many have made the system work worse. A few have shown promise. Too little research has been done on these reforms, and most of that has been ignored.

Pfaff gives an analysis of what is being done, what could be done, and the odds of success. Our government has vast resources and great power. It is capable of a wide range of sophisticated action. But, as David Halberstam said, “the elephant is great and powerful, but prefers to be blind.”

Pfaff’s work, and those of his peers, provides a test of our ability to govern America. Finally, research has begun to explain how crime and punishment works in America. But will its people and leaders apply this knowledge? Our prosperity — and perhaps even survival — probably depends on our ability to steer America wisely.

More reviews of Locked In

The New Yorker: “How We Misunderstand Mass Incarceration” by Adam Gopnik — “A new book argues that, in the effort to fix the prison epidemic, we are addressing the wrong things and missing the true problem.”

VOX: “Why you can’t blame mass incarceration on the war on drugs” by German Lopez — “The standard liberal narrative about mass incarceration gets a lot wrong. A new book breaks through the myths.”

The Marshall Project: “Everything You Think You Know About Mass Incarceration Is Wrong” by Eli Hager and Bill Keller — “Or at least misleading, says this contrarian scholar. Here’s why it matters.”

The Atlantic: “Rethinking Mass Incarceration in America” by Matt Ford — “A new book challenges the popular understanding of how the U.S. prison population skyrocketed.”

National Review: “We’ve Been Explaining Mass Incarceration in All the Wrong Ways” by Madison V. Peace — “That’s the case law professor and economist John Pfaff makes in a provocative new book.”

About the author

John F. Pfaff is a Professor of Law at Fordham. He brings an unusually broad background to the study of our criminal justice system. He has a JD in law and a Ph.D. in economics.  He teaches criminal law. Before that, he clerked for Judge Stephen F. Williams on the US Court of Appeals for the DC Circuit.

His research focuses primarily on empirical matters related to criminal justice, especially the causes of the unprecedented 40-year boom in US incarceration rates.

See his blog. Follow him on Twitter at @JohnFPfaff. See some of his recent publications…

• “The Complicated Economics of Prison Reform” in the Michigan Law Review, Vol 114 (6), 2016.
• “The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options” in the Harvard Journal on Legislation, vol 52 (2), 2015.
• “Escaping From the Standard Story: Why the Conventional Wisdom on Prison Growth is Wrong, and Where We Can Go From Here” in Federal Sentencing Reporter, April 2014 (ungated copy here).

For More Information

Ideas! For Holiday shopping ideas, see my recommended books and films at Amazon.

To learn more about mass incarceration in America, see the website of The Sentencing Project. For detail see the FBI’s 2015 “Crime in the United States“.

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about racism, about crime, about prison, about our criminal justice system, and especially these…

1. Our prisons are a mirror showing the soul of America.  It’s not a pretty picture.
2. More about the collapse of the American Criminal Justice System.
3. Final thoughts about America’s Criminal Justice System.
4. The Disgrace of Our Criminal {in}Justice System, and hints of reform in the air.
5. Can We Fix Our Shameful Prisons? Why they should be, and why we might not do so.
6. Since 9-11 we have less crime but more fear of crime. A win-win for our rulers!
7. America’s unspeakable problem: African-American’s crime rates.
8. Harsh truths about mass incarceration in America.

Another useful book

The Collapse of American Criminal Justice by William J. Stuntz (2011). See some excerpts here. From the publisher…

“The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems ― and for their solutions.

“The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime ― bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

“What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.”