The Flawed NRC Report: The Mysterious Case of the Missing Prosecutor, Part 2

(This is Part 6 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4 and Part 5 (admissions and prosecutors).) 

As I showed in a previous post, to the extent that the NRC report focuses on admissions as driving prison growth, it focuses on a measure (“admissions per arrest”) that is too broad to be useful: it is not so much “admissions per arrest” that are driving growth as it is “filings per admission.” Prison growth, at least since the 1990s, is specifically a story of increased prosecutorial punitiveness.

In other words, prisons are run by the state, but prisoners come from the county. To understand prison growth, you must understand what is happening across counties. Yet the NRC report, like almost all academic work, focuses almost exclusively on state- (or, even more often, and even less usefully, national-) level factors.

Most academic work, but not all. Consider the following results:

1. New York State’s prison population has shrunk steadily for more than a decade; it is the longest sustained decarceration in the country. And as a recent Brennan Center report indicates, it isn’t because the state as a whole has become less punitive. New York State’s decarceration is driven entirely by policy choices in the five counties that make up New York City. Incarceration rates have risen in the rest of the state’s counties, but shrunk by so much in New York City that the overall prison population has fallen.
2. A recent paper by David Ball demonstrates that incarceration rates in California vary widely across counties, and that this variation does not appear to be explained all that much by variations in crime rates. Some counties are punitive, other counties are not, and punitiveness seems to driven by social, demographic, economic, and other non-criminal factors. County factors explain California far more than state factors.
3. An unpublished paper by several criminologists using data from the National Judicial Reporting Program suggests (consistent with the Brennan Center report) that prison populations are being pushed up by actions in less-urban counties. Again, it is county-level factors that are driving growth.

It is easy, then, to see the problems that can arise when one fails to model prison growth on the county level. Some examples:

1. State-level analyses miss what could be a major cause of prison growth, namely the moral hazard problem that arises when county officials (i.e., prosecutors) have unregulated access to a state resource (i.e., prisons). Prison is basically a “free” resource for the DA, since he gets the political returns on locking up felons but externalizes the cost to the state prison system. This effect is made all the worse by the fact that jail and probation are paid for by the county: misdemeanors are more expensive than felonies!* State-level models can’t see this clear moral hazard problem at all.
2. State-level models may look at the wrong actor. One key variable in many prison growth models, for example, is the conservativeness of the state legislator and governor. And these actors do set some of the parameters: not just sentencing ranges and parole policies, but (perhaps more importantly, but less interesting to the general public) intergovernmental transfers.** But if counties drive prison growth, then what matters more, perhaps, are the political affiliations of mayors and county executives, particularly in high-incarceration jurisdictions.
3. State-level models may smooth over important sources of variation. The percent of the population that is black in New York (15.2%) is roughly the same as that in Arkansas (15.8%), but as the excerpt below from this map shows (from the Census, at census-tract level), the distribution of black residents differs significantly: in Arkansas they are fairly uniformly spread across the south-eastern half of the state, while in New York they are more likely to be densely packed into a few major urban centers. These differences could have major effects on how crime is viewed, regulated, punished, etc., etc., but again, state-level models are blind to these sorts of effects.

So what we measure as differences between states as states could instead reflect, at least to some (significant?) degree just differences in county-composition. No counties in New York State, for example, make the Census’s list of persistent poverty counties, while nine of West Virginia’s fifty-five counties do. So to what extent does the fact that New York State’s prison population shrank by 25% since 2000 while West Virginia’s rose by almost 80% simply reflect the fact that counties in the two states differ? After all, New York State’s decarceration occurred despite the increasing punitiveness of its poorer, less urban—i.e., more-West Virginian—counties.

Sadly, the NRC report pays almost no attention to these sorts of considerations. Concerning the risk of moral hazard, the NRC says only this:

Incentives for supporting certain kinds of crime-related initiatives also tend to be misaligned across different levels of government. For example, it is relatively easy for local government officials to advocate increased sentence lengths and higher incarceration rates that state government officials are typically responsible for funding (including the building and running of state penitentiaries).

That’s it. Two sentences, in a twenty-five page chapter titled “The Underlying Causes of Rising Incarceration: Crime, Politics, and Social Change,” a chapter that nonetheless manages to spend thirteen pages to talking about national-level political trends since the 1940s. These trends could matter—national-level rhetoric surely influences county-level elections and policies—but the report glosses over fundamentally important county-level issues, and in doing so misses a likely major explanations for prison growth, perhaps the most important ones. And no other county issue is discussed at all.

Even if you remain unconvinced that the county is the primary source of prison growth, I hope by now it is clear that the importance of the county is at least something that demands attention, and that the NRC report's failure to do so represents a major lost opportunity to highlight the importance of the prosecutor (which will be the topic of my very next post).

 

 

* One question I often get when making this claim is “why do DAs care about the county budget?” Given that DAs are directly elected, it is a fair question to ask, and I’ll return to it in a future post.

** Following the money is always a good idea, and the NRC report’s treatment of the issue—a few half-hearted and unsubstantiated sentences on the so-called “prison industrial complex” and a reference to competition over prison siting—is far too thin. I’ll turn to this issue in a future post as well.