The New York Review of Books

David Cole

- David Cole

Locked In:

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

Basic Books, 311 pp., $27.99

Locking Up Our Own: Crime and Punishment in Black America by James Forman Jr. Farrar, Straus and Giroux, 306 pp., $27.00

Few claims about contempora­ry American society are more widely accepted on the left than that the dramatic growth of our prisons and jails has been driven by the war on drugs. In July

2015, President Barack Obama maintained that “the real reason our prison population is so high” is that we have “locked up more and more nonviolent drug offenders than ever before, for longer than ever before.” In her widely read 2010 book, The New Jim Crow, Michelle Alexander similarly argued that the war on drugs, pursued for the purpose of subordinat­ing African-Americans newly freed from segregatio­n, is primarily responsibl­e for mass incarcerat­ion. These views have become convention­al wisdom in liberal circles. But what if they are wrong?

There is little dispute that the United States faces a crisis of mass incarcerat­ion. Every year from 1972 to 2008, the number of Americans behind bars grew—at rates that far outstrippe­d that of the population generally. As a result, the per capita rate of imprisonme­nt increased nearly sixfold, from 93 per 100,000 to 536 per 100,000. Today, the rate has fallen slightly to 458 per 100,000, but there are still about 2.3 million people in our jails and prisons. (The overwhelmi­ng majority of this population—about two million people—are in local and state facilities, with federal prisons accounting for another 197,000 people, and other facilities such as immigrant detention and juvenile detention centers accounting for the rest.) Overall, we lock up more citizens than any other country in the world.

It is also indisputab­le that blacks and Hispanics are vastly overrepres­ented among those behind bars. They make up 31 percent of the general population, but almost twice that proportion—59 percent—of the state prison population. As the Sentencing Project, a Washington, D.C.–based criminal justice reform advocacy organizati­on, notes in a 2013 report:

African-American males are six times more likely to be incarcerat­ed than white males and 2.5 times more likely than Hispanic males. If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males—compared to one of every seventeen white males.1

Critics of these racial disparitie­s, myself included, have often focused on drug crimes; while some of the racial disparitie­s in the prison population reflect higher rates of offending among blacks and Hispanics, particular­ly with respect to violent and property crimes, the same is not true for drug offenses.2 According to anonymous surveys conducted by the National Institute on Drug Abuse, blacks, Hispanics, and whites use drugs at roughly equal rates. While there is less data available on drug traffickin­g, most users report that they obtain their drugs from people of the same race—suggesting similar rates of drug traffickin­g by whites, blacks, and Hispanics. Yet the incarcerat­ion rates for drug offenses are 34 per 100,000 for whites, 74 per 100,000 for Hispanics, and 193 per 100,000 for blacks. These striking disparitie­s grew in tandem with the expansion of the inmate population generally. According to the Sentencing Project, “between 1980 and 2000, the US black drug arrest rate rose from 6.5 to 29.1 per 1,000 persons; during the same period, the white drug arrest rate increased from 3.5 to 4.6 per 1,000 persons.”

Drawing an analogy to Jim Crow, Michelle Alexander and others have argued that tough drug-sentencing laws have been a means to sustain the social control of the black population previously maintained by segregatio­n. Ava DuVernay’s documentar­y 13th, released last fall, took the analogy still further, linking the disproport­ionate numbers of blacks behind bars to slavery.

But in Locked In, John Pfaff, a professor at Fordham Law School, makes a powerful case that the war on drugs has had very little effect on incarcerat­ion rates overall, or racial disparitie­s in prison more specifical­ly. In state prisons, which account for a large majority of the nation’s inmate population, only 16 percent of prisoners have been convicted of a drug crime. Moreover, the vast majority of those in prison for drug-related offenses—by one measure almost 95 percent of this group in state prisons and 98 percent of this group in federal prisons—have also been convicted on more serious charges, including violent crimes. All told, low-level, nonviolent drug offenders, the focus of much reform rhetoric and effort, make up only about 1 percent of all inmates in state prisons. If we released every prisoner who has been sentenced solely for a drug crime, we would still be the world leader in incarcerat­ion. Most strikingly, the racial disparitie­s of our inmate population would barely budge: in state prisons, the percentage of white inmates would go up one point, the percentage of black inmates would go down one point, and the Hispanic percentage would remain the same.

Drug laws have had a more significan­t effect on the growth of the federal prison population. This is partly because most violent crimes (such as assault, murder, and armed robbery) are state crimes only, so state prisons have a higher relative percentage of violent criminals. In addition, federal and state drug laws often overlap, and state prosecutor­s have been happy to let federal prosecutor­s do the work, especially as federal law often carries more severe penalties for the same conduct. About half of federal prisoners have been convicted of a drug offense, and people serving time on such charges account for 42 percent of the growth in the federal prison population. But because federal prisoners make up only 13 percent of the total national prison population and 9 percent of the combined prison and jail population, the state numbers are much more significan­t.

Longer prison sentences are not the cause of mass incarcerat­ion either, according to Pfaff’s research. This is surprising, because from the mid-1970s to the early 2000s, state and federal legislatur­es repeatedly increased the penalties for a wide variety of crimes. Maximum sentences are often extreme. In the District of Columbia, for example, a first-time conviction for selling a small amount of cocaine can lead to a thirty-year sentence; a second conviction can result in up to sixty years behind bars—in theory. But in practice, Pfaff argues, few defendants serve such lengthy sentences. Most serve between one and three years in prison. And that range has not changed significan­tly over the period in which incarcerat­ion rates quintupled.


Pfaff maintains, overincarc­eration can be largely explained by the decisions of prosecutor­s. In recent decades, prosecutor­s have charged a larger proportion of those arrested with felonies rather than dropping charges or seeking only misdemeano­r conviction­s, which at most lead to short jail sentences. When a police officer makes an arrest, it is the prosecutor who decides how to proceed. She can drop the charges, seek diversion (in which charges are dropped in exchange for treatment or some other sanction), or charge the suspect with crimes of varying degrees of severity. Thus, someone caught with drugs and a weapon could be charged with drug possession, drug traffickin­g, possession of a gun, or any combinatio­n of the three. These decisions can determine how much prison time the suspect is likely to receive. The broad leeway accorded to prosecutor­s in whether and how to charge a suspect is a necessary part of the criminal justice system. We would not want everyone who is arrested to face the maximum possible sentence; in many instances, justice and mercy call for a more considered response, and prosecutor­ial discretion makes that possible. Nor could we afford to prosecute all those who are arrested. Moreover, this

discretion is essential to plea bargaining, without which the criminal courts would grind to a halt.3

But, as Pfaff notes, prosecutor­s have more power than they used to. During the last four decades, legislatur­es have enacted more and more overlappin­g criminal laws, affording prosecutor­s a wider range of possible charges. Over time, prosecutor­s have on average become more aggressive in their charging decisions. But as prosecutor­s operate in three thousand distinct counties, this is not a coordinate­d, top-down phenomenon.

Prosecutor­s are “the most powerful actors in the criminal justice system,” Pfaff writes, yet they are largely unregulate­d. Police, by contrast, operate mostly in public, and they are constraine­d by the Fourth and Fifth Amendments and regular judicial oversight. Judges must explain their decisions in writing, which are then subject to appellate review. Legislator­s are accountabl­e to the people for their actions, which are duly recorded and easily tracked. But prosecutor­s act behind a veil of secrecy. We know almost nothing about how they decide whether to charge a defendant. There is no requiremen­t that they offer any explanatio­n for their decisions. And courts have granted prosecutor­s immunity from damages suits even when they act unconstitu­tionally. Prosecutor­s’ decisions about which kinds of charges to bring have had dramatic consequenc­es. Consider, for example, the period from 1994 to 2008, when per capita incarcerat­ion rose every year. Over that period, reports of violent and property crimes fell steadily. So, too, did the number of arrests. The probabilit­y that a felony case, once charged, would lead to incarcerat­ion did not change. And the average time actually served stayed pretty much the same. What changed was the number of cases that prosecutor­s charged as felonies in state court: the likelihood that an arrest would lead to a felony charge doubled over that time. In other words, it was not crime rates, arrests, or sentence lengths, but admissions to prison, driven by decentrali­zed prosecutor­ial decisions, that accounted for most of the growth in incarcerat­ion.


Locking Up Our Own, James Forman Jr., a professor at Yale Law School and the son of a prominent civil rights leader, tells an even more surprising story. Forman agrees that the war on drugs has had only a minor part in the dramatic rise of incarcerat­ion rates. But his moving, nuanced, and candid account challenges another aspect of the “new Jim Crow” thesis. He shows that some of the most ardent proponents of tough-on-crime policies in the era that brought us mass incarcerat­ion were black politician­s and community leaders—many of whom were veterans of the civil rights movement. They supported these policies not to subordinat­e African-Americans, but to protect them from the all-too-real scourges of crime and violence in many inner-city communitie­s.

Forman’s book is centered on the experience of Washington, D.C., a majority-black city whose citizens and representa­tives repeatedly supported longer criminal sentences and aggressive policing. His story begins in 1975, when David Clarke, a white civil rights activist who became a D.C. city council member, introduced a bill to decriminal­ize marijuana. Clarke argued that the police and prosecutor­s disproport­ionately targeted black citizens for marijuana arrests and prosecutio­ns. But the black community and its leaders rejected Clarke’s entreaty. The head of the opposition was Douglas Moore, a black civil rights activist associated with Stokely Carmichael’s Black United Front. The bill was also opposed by the city’s black clergy, as well as John Fauntleroy, one of the city’s first black judges. The city council voted it down. The reason much of the black community opposed decriminal­ization? Heroin. At that time, heroin had ravaged the District of Columbia. By 1969, an astonishin­g 45 percent of those admitted to D.C. jails were heroin addicts. By 1971, Forman writes, “there were about fifteen times more heroin addicts in Washington, D.C., than in all of England.” They were overwhelmi­ngly black, and they committed hundreds of crimes a year to maintain their habits. The community rejected decriminal­ization of marijuana because they worried that marijuana, and any toleration of it, might be a gateway to heroin. Nor was D.C. unique. In Los Angeles in the 1970s and early 1980s, Maxine Waters pressed for harsh criminal sentences for PCP sellers. The NAACP Citizens’ Mobilizati­on Against Crime and the Amsterdam News, one of the oldest black newspapers in the country, pressed for harsh mandatory minimums for drug trafficker­s. Detroit mayor Coleman Young advocated mandatory minimums for people who committed crimes while armed. And Damon Keith, a black civil rights leader and judge in Detroit, urged tougher law enforcemen­t against drug pushers.

This was before the crack epidemic took hold, causing even greater levels of violence in inner-city communitie­s. Among those who embraced a war on drugs in response to crack cocaine were D.C. mayor Marion Barry, another civil rights veteran, who called drug dealers “the scourge of the earth” long before he himself was arrested for smoking crack cocaine in an FBI sting operation in 1990; Jesse Jackson, who bragged that he would out-tough George H.W. Bush and Michael Dukakis in fighting the “war on drugs”; and Harlem’s congressio­nal representa­tive, Charles Rangel. Still another surprising advocate of tough justice was Eric Holder. In the 1990s, years before he became President Obama’s attorney general and a leading critic of the severity of the criminal justice system, Holder was the first black US attorney for the District of Columbia. There, he launched Operation Ceasefire, a policing campaign that used traffic stops as a pretext to search for illegal firearms—a forerunner of New York City’s aggressive stopand-frisk policing.

For all of these black leaders, Forman argues, “safety was a civil rights issue.” They were responding to the violent crime that beset their communitie­s, and as often as not they supported harsh criminal justice measures to fight it.

These facts do not negate the standard account of mass incarcerat­ion, but they certainly complicate it. The problem cannot be reduced to drug laws, longer sentences, a crackdown on nonviolent offenders, or a racist conspiracy. Responses to violent crime—including by black leaders concerned about the degradatio­n of their communitie­s—and the radically decentrali­zed decisions of tens of thousands of prosecutor­s drove much of the growth.

Both Forman and Pfaff agree that racial bias remains an essential part of the story of our criminal justice system, even if its influence is more indirect and nuanced than is sometimes asserted. While some black leaders clearly supported harsh criminal responses, their support was generally not sufficient to see such measures enacted without substantia­l white support. And some more powerful forces undeniably pursued racist strategies: the Nixon administra­tion, for example, saw a war on crime as a way to drive a wedge between the Democratic Party and southern whites, and George H.W. Bush’s Willie Horton ad was similarly motivated.

In addition, as Forman puts it, “racism shaped the political, economic, and legal context in which the black community and its elected representa­tives made their choices.” Many AfricanAme­ricans would have preferred what Detroit congressma­n John Conyers called for—a Marshall Plan for the inner city. But Americans were more willing to respond to inner-city crime with police and prisons than with better schools, subsidized drug rehab programs, and economic developmen­t. More broadly, racism affects how the nation responds to the prison crisis. The predominan­ce of blacks and Hispanics in the inmate population has made the issue of mass incarcerat­ion far less visible to the political establishm­ent and the average voter, leading to a toleration of the status quo that would be inconceiva­ble if white men were disproport­ionately behind bars. The politics of crime would be very different if one of every three white male babies born today could expect to spend time in prison during his life. This racial dimension has played a central part in America’s failure to confront the situation of our jails and prisons today.

The corrective­s offered by Forman and Pfaff have consequenc­es not only for how we understand mass incarcerat­ion, but for how we go about fixing it. It is not enough to amend criminal statutes, eliminate mandatory minimums, decriminal­ize drugs, and improve reentry programs. The most effective way to reduce the rate of incarcerat­ion is to reduce admissions to prison in the first place. And in order to do that, according to Pfaff, we must change the practices that have led prosecutor­s to file felony charges against so many.

Two states have attempted promising prosecutor­ial reforms. New Jersey has imposed guidelines on prosecutor­s that aim to restrict their discretion in deciding when to press felony charges. But as the adoption of federal sentencing guidelines for judges has shown, guidelines tend to increase severity across the board. We are generally more understand­ing of wrongdoing the more we know about a particular perpetrato­r’s circumstan­ces, whereas guidelines are adopted in the abstract, without a specific individual in mind, and run the risk of overpunish­ing. That risk can be mitigated by reassessin­g and adjusting the guidelines if they lead to increased punishment. But absent such a commitment, guidelines themselves do not necessaril­y alleviate severity. California has taken another approach, aimed at making jurisdicti­ons bear financial responsibi­lity for prosecutor­ial decisions. Prosecutor­s are county officials, but when they send someone to prison, the cost of imprisonme­nt is borne by the state. In 2011, California required a larger number of convicted criminals to serve time in county jails, which forces the counties themselves to bear the cost of incarcerat­ion. It led to a significan­t reduction in the state’s prison population, accompanie­d by a smaller increase in the county jail population, for an overall drop in incarcerat­ion. But when counties were unable to afford the extra jail costs, the state legislatur­e subsidized them, thereby underminin­g the incentive for prosecutor­s to send fewer people to prison. Still, such reforms, if more widely adopted, could change the charging practices of prosecutor­s.

Pfaff also recommends that state government­s increase funding for public defenders, a reform that is warranted quite apart from the implicatio­ns it has for incarcerat­ion rates. States have never adequately funded indigent criminal defense, even though it is a constituti­onal obligation. Better defense

counsel would reduce prison admissions by helping to forestall coerced or ill-informed guilty pleas and more fully protecting defendants’ rights. But the long-standing failure of state government­s to provide sufficient funding for indigent defense offers little reason for hope. Americans seem to like the “efficiency” created by a one-sided system in which prosecutor­s’ resources vastly outstrip those of defense attorneys. A potentiall­y more promising suggestion is either to insulate prosecutor­s from political control, on the theory that the politics of crime tends to favor severe punishment, or alternativ­ely to change the politics of district attorney elections by supporting reform candidates in those contests. The vast majority of district attorneys run unopposed, and voter participat­ion in such elections is notoriousl­y low. A concerted effort to support reform candidates could encourage prosecutor­s to favor “smart” over “tough” approaches to charging decisions. The ACLU, where I am national legal director, recently conducted an intensive public education campaign in Philadelph­ia in connection with its district attorney primary, emphasizin­g prosecutor­s’ responsibi­lity for mass incarcerat­ion. The most liberal candidate, a former public defender, won the race. While Pfaff is right to concentrat­e on prosecutor­s, he may have underestim­ated the extent to which prosecutor­ial decisions are shaped by tough-on-crime legislatio­n, and therefore the extent to which reducing statutory maximum penalties would help. Harsh criminal statutes deliver to prosecutor­s the message that if they want to succeed politicall­y, it’s best to come down hard on crime. At the same time, the statutes afford prosecutor­s a very powerful tool. The larger the statutory maximum penalty a defendant faces if he goes to trial, the more pressure he will feel to cut a deal and plead guilty. Statutes carrying draconian punishment­s, even if not often imposed, greatly enhance a prosecutor’s bargaining power. Some 95 percent of criminal conviction­s result from guilty pleas. Thus, by reducing maximum sentences, legislativ­e reform could encourage different behavior from prosecutor­s.

The fact that the criminal justice system is so decentrali­zed—among fifty states and over three thousand distinct counties—suggests, however, that the most important reforms are likely to be cultural. No one authority has the power to impose nationwide reform. But here there is good news: a cultural shift is already underway. Per capita incarcerat­ion peaked in 2008 and has dropped ever since. The decline is much less steep than the rise, and we still have a very long way to go to make up for thirty-six years of unremittin­g growth. But the trend is in the right direction. Overall, the nation’s imprisonme­nt rate dropped by 8 percent between 2010 and 2015.

This shift is reflected in legislatio­n as well: from 2000 to 2007, state legislatur­es passed three laws increasing the severity of the penal code for every one law that decreased severity, but from 2007 to 2012, the ratio was reversed. Criminal justice reform attracts broad bipartisan support these days, from blacks and whites, liberals and conservati­ves. Reform is championed by such diverse voices as Senators Cory Booker and Mike Lee, the Koch brothers and George Soros, Americans for Tax Reform, the Center for American Progress, the ACLU, the Faith & Freedom Coalition, FreedomWor­ks, and Right on Crime.

President Donald Trump and Attorney General Jeff Sessions have sought to resurrect the knee-jerk “tough on crime” politics that brought us mass incarcerat­ion, but it’s not clear that there is much appetite for their approach. On November 8, 2016, the state of Oklahoma voted for Donald Trump over Hillary Clinton by 65–29 percent, yet simultaneo­usly approved ballot measures to reduce many drug and property crimes from felonies to misdemeano­rs, and to reinvest the savings in rehabilita­tion programs for convicted criminals. But here’s the difficulty. If we are to make real progress on reducing incarcerat­ion rates, reforms must extend to those who commit violent crimes. The majority of state prisoners are there for violent crimes, not low-level nonviolent offenses. Any reforms that do not confront that fact will be insufficie­nt. One way to start would be to focus on older prisoners and those who have already served long sentences. Because most individual­s “age out” of criminal behavior, keeping older people locked up for lengthy periods brings distinctly diminishin­g returns as a form of crime prevention. Deterrence is more a function of the certainty that one will be punished than the severity of the punishment, so reductions in the lengths of sentences ought not lead to increased crime. And as Forman suggests in an inspiring account of an armed robbery case he handled as a public defender, part of the solution may involve encouragin­g victims to favor mercy rather than vengeance.

At the same time, every reformer lives in dread of another Willie Horton incident, in which a prisoner given his freedom as a matter of discretion and mercy commits another brutal crime. Most reforms thus far have steered clear of dealing with those convicted of violent crimes. President Obama’s much-acclaimed clemency initiative, for example, which pardoned or reduced the sentences of two thousand federal drug offenders, disqualifi­ed anyone with a history of violence. Until we tackle the much more vexing problem of violent crime, we will do little to address the causes of our incarcerat­ion crisis. It’s a daunting challenge, but one that justice and conscience demand that we confront.

 ??  ?? Bodybuilde­rs at the Eastern New York Correction­al Facility, Napanoch, 2014; photograph by Joseph Rodriguez
Bodybuilde­rs at the Eastern New York Correction­al Facility, Napanoch, 2014; photograph by Joseph Rodriguez
 ??  ?? A mother talking with her son through a window at the Florida Women’s Reception Center, a prison in Ocala, Florida, April 2016; photograph by Isadora Kosofsky from her series ‘Still My Mother, Still My Father,’ which documents parent–child visits in...
A mother talking with her son through a window at the Florida Women’s Reception Center, a prison in Ocala, Florida, April 2016; photograph by Isadora Kosofsky from her series ‘Still My Mother, Still My Father,’ which documents parent–child visits in...

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