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Monday, September 09, 2013

The Problems with the Explanations of Prison Growth (Again)

First, I’d like to thank Dan for allowing me to continue posting here at Prawfs. I had hoped to spend this summer posting here about all the flaws in the standard story about the causes of mass incarceration. Unfortunately, an exhausting but—at least for now—generally positive journey through the world of neonatal medicine got in the way. But with time now to start blogging again, I thought I’d pick up where I left off. Since it’s been a while since my last post, though, and since the start of the school year likely means people who did not read Prawfs over the summer (are there such people?!) are joining in, I thought a short recap could be a good place to start.

My overarching point is this: the “Standard Story” of prison growth given by academics, policymakers, and the press alike, is basically broken, giving lots of attention to factors that don’t matter that much, and overlooking (if not actively downplaying) the ones that do. 

My first argument is simply that it is not the War on Drugs. Too few people are arrested for drug use and, outside the federal system, too few of our prisoners—only about 17% of state prisoners and 21% of all (state and federal) inmates—are serving time for drug charges. In fact, drug offenders make up such a small share of state prisoners that they do not even explain the racial imbalance in prison populations.

That’s not to say that the War on Drugs is irrelevant. First of all, it is not easy to even define what a “drug crime” is. But more important, the War on Drugs may have important indirect effects. Perhaps the disruption of the low-level drug arrest or brief stint in jail or, less frequently, prison, contributes to later, more-serious offending. Or perhaps the drug arrest or conviction encourages prosecutors to go after subsequent, more-serious offending more aggressively, or leads judges to impose tougher sentences for those crimes, or parole boards to be less forgiving. But these indirect effects are quite hard to detect in the data that we have (not necessarily because they are unimportant, but because we don’t gather the sorts of data that could reveal them).

So if it isn’t the War on Drugs, what is it? To answer that, we need to start with a Leslie Knopp-like obsession with the particulars of local government finance. Our “criminal justice system” is not a system at all, but a swirling mush of local, county, state, and federal actors, all with differing constituencies and incentives. This opens the door to lots of moral hazard problems. Bill Stuntz, for example, has convincingly argued that (state) legislators are free to pass tough sentencing laws since they can blame (county) prosecutors for actually using them. And prosecutors are indirectly encouraged to send people to prison rather than jail or probation since the first is paid out of state funds and the last two out of the county budget: prison is tougher on crime and cheaper for the DAs constituents.

Perhaps not surprisingly, my own work has thus shown that prosecutors are the primary engine of prison growth, at least since crime began its decline in the early 1990s. Between 1990 and 2008, crime fell, arrests fell, the probability that a felony case resulted in a prison admission has been flat, and (perhaps most surprising, and an issue I will be addressing in several future posts) time served has not increased. But felony filings by prosecutors have soared. Between 1994 and 2008, the probability that an arrest resulted in a felony case rose from 37% to 57%.

We are living in a time of low crime and high prosecutorial aggressiveness. Prison populations continue to rise even as violent and property crime decline and plateau.

Unfortunately, we are also living in a time where the conventional wisdom seems to wholly buy into a Standard Story that is simply unsupported by the data. This is perhaps the cleanest example of the Standard Story as it is usually trotted out, and this is why it is so incorrect. 

So that’s the story to date, with all the essential self-promoting links to my previous posts and my own papers. Next up? Convincing you that longer sentences really are not driving prison growth upward. This is perhaps the toughest part of my attack on the Standard Story. I’m not alone in making this argument—Patrick Langan, back when he ran the Bureau of Justice Statistics, published an article in Science in 1990 on prison growth in which he argued that there was no evidence that changes in sentence length played any role in prison growth—but it is definitely the minority position. But then if the conventional wisdom were always correct we wouldn’t need statistics at all.

Posted by John Pfaff on September 9, 2013 at 10:49 AM | Permalink

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With Respect

Are jail populations declining then?

Yours Sincerely

Posted by: Alan E. Dunne | Sep 21, 2013 5:48:19 PM

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