If the War on Drugs Isn’t Driving Prison Population, What Is? Or, Better Put, *Who* Is?

In my posts so far, I have argued that the dominant narrative concerning the causes of our exploding prison populations—that it is the mass incarceration of drug offenders—is simply incorrect. But pointing out that a theory is weak is the easy part: identifying the theories that do have empirical support is a much harder job. And it is to that question that I now turn my attention.

But before we can figure out what is driving up prison population, we first have to figure out who is doing the heavy lifting. I have argued before, we should avoid, whenever possible, using the term “the criminal justice system,” because no such “system” exists. What we refer to as the “criminal justice system” is not a single monolithic entity that the term implies (and as many commentators view it), but sprawling morass of competing, often inimical bureaucracies spread across numerous separate and overlapping jurisdictions, each with different constituencies and incentives. There is absolutely no reason to assume that any causal factor influences the behavior of each of these actors in the same way.

So before we get to the causes, we have to identify the culprits.

It doesn’t take much thought to realize how decentralized our criminal justice system is. Police respond to local police chiefs, who are generally appointed by a mayor—except in those areas patrolled by sheriffs’ deputies, who answer to a sheriff elected at the county level. Cases are prosecuted by the district attorney, a county official, although one subject to (quite weak) state attorney general in a handful of states. Sentences are imposed by judges, who may be elected or appointed, and may be so at the state or county level. The legislature is comprised of hybrid officials—nominally state in jurisdiction, but elected at the sub-city level, and thus even more locally responsive than the police (although the ambitious may have their eyes on bigger state or federal offices and thus may adopt a more regional perspective). And then there is the governor, who along with the state attorney general (who plays almost no role in state criminal law) is one of the only state-level officials in the whole chain.

And that’s before we get to the federal government, which has limited direct jurisdiction, but which also often tries to shape state policy by throwing its financial weight around, either via grants or sanctions. (The effect of such approaches, however, is mixed, with states often declining the grants or absorbing the sanctions.) Like their state counterparts, federal legislators are similarly hybrid in focus.¹

As I will argue in the next bunch of posts, it is likely that this decentralization is directly responsible for prison growth, at least since crime began its steady decline in the early 1990s. The main problem is decentralization with weak oversight and enforcement opens up the door for all sorts of moral hazard problems. Consider two examples:

1. Years ago, the DA of New Orleans, Harry Connick, Sr., (yes, the Sr. to that Jr.), attempted to abolish plea bargaining. But to do that he needed the police to bring him good cases. Given what we have learned about the NOPD since Katrina, the results should not be surprising. As Dan Richman explains, Connick, Sr., had no way to force the NOPD to behave, and so it didn’t. It kept bringing him bad cases, and there was nothing he could do about it.
2. Anyone from a state with elected judges knows what an… optimistic… approach it is. No one knows 99% of the names on the ballot, so the votes cast for judges are rarely based on reasoned balancing of the various options. In states with partisan, county elections, party nomination is thus likely essential, and so judges owe a great deal to the party machine that gets them elected. A colleague of mine from a state with such an arrangement pointed out that at sentencing, if a judge has a choice between a shorter jail sentence and a longer prison sentence, he has a strong incentive to choose prison: prison costs the state money, but jail costs the county. Why anger the county machine by driving up its costs?

 These two examples highlight two important fissures running through our system. First, downstream² actors often depend on the work-product of upstream agencies, but they often have no control over them. As the New Orleans example makes clear, this can pose a major barrier to reform. (There is one major exception: thanks to some guidelines, some prosecutors offices find themselves able to practically dictate the sentences imposed by downstream judges.)

Second, decentralization combined with misaligned financial incentives can create free lunches: county DAs and judges can get all the political credit for being tough on crime while shouldering only a fraction of the cost. This is even more true when the feds get involved: a Senator from some low-density, low-crime state can bolster his tough-on-crime credentials at almost zero cost to his home state. For rural state legislators, the incentives are even stronger: not only do they pay only a small share of any cost (both in terms of financial costs, since they have few people, or in terms of collateral costs, since they will have few offenders), but they often benefit from increased incarceration due to the siting of prisons in relatively rural communities.

Let me stop there. The trick to blogging, I realize, is to keep posts to under 10,000 words. In my next post, I’ll briefly point out that this decentralization isn’t completely unjustifiable: there is much to be said for localized control of criminal justice. And I’ll touch on how California, via its Realignment project, may in fact be figuring out how to permit local control without excessive free-riding. After that, I’ll explore in more detail how this decentralization is driving prison growth.

Here’s the main spoiler: my recent work suggests that, at least since 1994, almost all the growth in prison populations is due to increased felony filings by prosecutors. Not to increased arrests, admissions, or time served. Just filings. And if there is one actor in a position to free-ride and with a strong incentive to do so, it is the prosecutor.

 

¹As I will discuss in a future post, the politics of federal criminal law—which is generally the focus of much of the politics-of-crime research—seems uniquely, pathologically broken. The main reasons? First, low-crime states are insanely over-represented, especially in the Senate (since a majority of crimes take place in about nine states, just like a majority of people live in just-about-the-same nine states). As a result, Congress passes criminal laws with little care about their impact on the ground: they are much more symbolic acts, and perhaps much more destructive as a result. And second, Congress, unlike the states, faces no real budget constraint. That’s not just an reference to the fact that our debt is dollar-denominated and we own the printing press, but is a more substantive statement. At about $6.5 billion out of $3.5 trillion, the budget for the Bureau of Prisons is approximately 0.19% of the federal budget: an irrelevant drop in the bucket, especially when compared to the 10% of so of state budgets given over to prison spending. So Congress has much more room to indulge in harmful, symbolic, punitive nastiness.

²I can never keep up- and down-stream straight in my head. Here, I will use upstream to refer to the “earlier” actors, downstream to the “later” ones: police are upstream of prosecutors, and prosecutors are upstream of judges. I think that is right, but it feels strange to refer to the earlier actor as the “upper” one.