The Flawed NRC Report: Why The Mystery of the Missing Prosecutor is So Damn Important

(This is Part 7 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,  Part 5 and Part 6 (admissions and prosecutors).) 

I’ve already written three posts on the NRC report’s failure to think about the prosecutor, and I have a few more to come. But I thought it could be helpful to pause for a moment, take a step back, and make it crystal clear why this oversight represents such a profound and disappointing failure.

Obviously, if the goal of a report is to explain how x happened, and it misses the major cause of x, that is in and of itself an important point to make. But my frustration goes much deeper than that, and it is rooted in the fact that this is not just a paper published in a leading journal, but a National Research Council report: these are the sorts of reports that can really change policy, and as I will make clear here, publishing a report with so glaring a blind spot is a tragically missed opportunity.

To say that NRC Reports can be truly important is not an understatement. Consider, for example, the NRC report on forensic evidence. Sure, it wasn’t the first report to highlight just how weak the evidence base for forensic evidence is, but its official sanction of that growing concern certainly seemed to mobilize a much wider effort to reform how forensic evidence is handled in the US.

NRC Reports can provide the catalyst for important change. This report had that potential—it is, after all, already being favorably cited by editorials in the New York Times—but because of its failure to think carefully about where prison growth comes from, its policy recommendations are of little to no use.

When it comes to regulating the scope of incarceration—and, to be clear, I think the report is right that we need to rein in and reduce our levels of incarceration, but it is adrift when it comes to explaining how—here are its primary policy suggestions:

1. Reduce sentence length. I’ve already argued that this is wrong, but so too does the report itself, which admits that prison growth since 2000 has been driven by admissions, not time served. Plus, even if there were a lot of people still in prison serving long sentences—which there aren’t—changing sentence length today wouldn’t do anything for them. 

2. Reduce the scope of mandatory minimums. This one could matter if DAs are driving up admission rates by increasingly invoking mandatory minimum laws. And this could be happening, even though the probability of being admitted to prison once changes are filed has been constant (since the composition of offenses is changing). But, again, the report itself admits that these laws are frequently circumvented.

3. Roll back the war on drugs. I’m not going to address this one again. 

 It does admit there could be some other approaches to take. Here's what it says: 

 Although the above measures do not exhaust the options for sentencing reform, we view reduced use of long sentences, review of mandatory minimum sentences, and a revised approach to drug law enforcement as three key main ways in which incarceration could be significantly reduced. Recent reform efforts also have addressed other phases of correctional supervision, notably community corrections. As was mentioned above, a shift in sentencing policy away from reliance on incarceration would necessarily require closer examination of the effectiveness of alternatives to incarceration, including the effectiveness of parole and probation supervision. Similarly, any well-conceived plan for reducing prison populations should consider the effectiveness of short-term and longer-term assistance to parolees.

That’s it. Other than the misplaced focus on drugs, no discussion of reforms that target the actors who actually send people to prison. The proposal are quite orthodox, but ultimately inapt.

What if the NRC had taken advantage of this unique opportunity to make some daring, provocative, and useful recommendations. Consider the following:

1. Implement a Uniform Prosecutors Reports. We have detailed statistics on the police via the Uniform Crime Reports, and detailed data on prison populations via the National Corrections Reporting Program and the National Prisoner Statistics. But for prosecutors? Nothing. The National Prosecutors Survey provides national-level estimates of administrative details, but nothing about how DAs or ADAs do their jobs. There are a few other datasets that provide glimpses of prosecutorial behavior, but all suffer from severe limitations that minimize their use for understanding what prosecutors do. Obviously, prosecutors are happy with this arrangement: they get to do whatever they want to do with almost no oversight whatsoever. They are the giant black box of the criminal justice system, and by relying on inadequate research, the NRC report gives them a free pass. I will return to the idea of the UPR in a future post: it may be an impossible goal, but it is one that demands our consideration nonetheless.

2. Confront the fiscal moral hazard problem, Part 1. If DAs are driving up prison growth because they aren’t paying for it, then make them pay for it, or at least make them take into account the costs they are imposing. This is a topic that has come up before, but traditionally got little attention. Until October 1, 2011, when California adopted this on a massive scale under the name Realignment, as part of its effort to mitigate the unconstitutional levels of overcrowding in its state prison system. I described the basics of Realignment here, and I’ll come back to it again. But the NRC Report does not mention Realignment once, despite coming out three years after the process began. 

3. Confront the fiscal moral hazard problem, Part 2. The NRC report encourages the use of sentencing guidelines. To the extent those govern the in/out margin, they could help, but if all they focus on is time served, then they do not target the key area of growth (whatever other benefits they may have). But how about enforceable prosecutorial guidelines? This is not a pipe dream: New Jersey has these to regulate plea bargaining for drug cases. It’s a narrow application, but for a major source of crime in a high-incarceration state, and the guidelines appear to be effective.* There is no reason, necessarily, that they couldn’t be scaled up to more offenses.

These are just a few ideas, but what they should make clear is that the NRC squandered a rare opportunity to think creatively about how to regulate prison growth. Its own solutions don’t really target what the report itself says is the source of growth today, and it fails to suggest anything that actually takes aim at the incentives of the most important actors in the system—because the report itself is  blind to their importance.

 

* To be clear, the guidelines were mandated by the state Supreme Court out of a equal-protection concern about racial imbalances in plea outcomes. And New Jersey is one of the few states where the state AG has direct oversight of the county DAs. But I can’t see any theoretical reason why these sorts of guidelines couldn’t be implemented in other states. Thus my disappointment in the NRC report’s lack of innovation in its policy recommendations.