I have just finished reading Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John Pfaff. This book describes the growth of mass incarceration in the United States and describes a set of reform policies to reduce the prison population. In itself this is not unusual – the book takes as its launching point the political consensus in the USA that there is a need to “decarcerate” a large number of people – but this book presents a completely different set of causes of mass incarceration to the accepted story, and lays out a very different strategy for achieving real change. It also argues that the existing reform effort, while valuable, may actually sow the seeds of a long term failure to decarcerate, and risks normalizing a political framework that will be disastrous if crime rises again in America.

Pfaff defines the accepted causes of mass incarceration as the “Standard Story,” which argues that mass incarceration is driven primarily by three factors: the war on drugs[1], excessively long sentences, and private prisons. In the first few chapters he demolishes this story succinctly and using detailed statistics. Only 16% of all prisoners are in prison for drug crimes, and of these a large proportion probably were charged on drug crimes as an easier alternative to conviction for violent crimes; and releasing all of these prisoners would do almost nothing to shift the racial disparities in incarceration, because these disparities are universal. Indeed, since 1990 only 14% of new prison admissions were due to drug use, while 60% were for violent crimes. He then presents a wide range of evidence that prison sentences have not actually increased in length over the past 30 years in the USA: Increased prisoner numbers are due to increased admissions, not larger number of prisoners hanging around longer. Finally, Pfaff drags out the statistics on private prisons, to show that only 8% of US prisoners are in private prisons; and he argues that the lobbying efforts of private prisons are tiny compared to the lobbying efforts of prison guard associations, and from other interests that have greater influence in the zero-sum funding environment of state financing decisions in the USA (most private prison lobbying happens at the state level, where a dollar given to one interest is necessarily a dollar not given to another). In fact, throughout this book Pfaff regularly revisits the power of prison guard associations and lobby groups for prosecutors, and regularly makes the point that the USA’s mass incarceration problem is a catastrophe entirely wrought by public agencies on the public purse. Private prisons in the US might suck, and you might think it’s a bad or a weird idea, or that profiting from human misery is nasty, but they aren’t the cause of the problem.

Having demolished the “Standard Story”, Pfaff then goes on to explain what he thinks are the real causes of incarceration in the USA, which is a complex mish-mash of bad design, lack of political accountability, and public choices, against a backdrop of rapidly increasing crime rates. At the core of his story is the prosecutor. Prosecutors in the USA are the equivalent of the Crown Prosecution Service in the Westminster system, but they are radically different from the CPS. They are generally elected in county (local) elections, and funded at this level, so they are answerable to only local political forces. They have complete discretion as to who to charge, how and with what crime, and they typically are supported by a police force that is funded at the county level. Prosecutors typically are always re-elected, and no incumbent ever suffers from being too harsh on crime. But the real problem is in two aspects of the deployment of their considerable discretion: Whether to charge for misdemeanour or felony, and what plea bargain to make. If a prosecutor charges someone with a felony, that person goes to prison (not jail! The US has some kind of weird distinction!) – but prisons are funded by the state, not the county. This means that there is no financial pressure on them not to send people to prison. But it is the state that makes the laws, and at the state level there is often political pressure to create new laws and increase maximum penalties for those laws. So in recent times the prosecutor has been gifted with a wide range of potential felonies that they can threaten suspects with, that carry very large maximum penalties that are unlikely to be enacted by the judge but sound terrifying to the suspect. This means that it is very easy for prosecutors to get suspects to make plea deals for low level felonies, and there is no local pressure for them not to, but at the next election they are most likely to be judged for successfully putting felons away. This increasing freedom and power has occurred at a time when numbers of prosecutors have increased rapidly, and public defenders – the service that the government supplies to suspects – are massively underfunded and often barely have the time to meet their clients, let alone to help them defend their case. Prosecutors are also notoriously defensive about their work, there is almost no data on what they do, and their representative organizations have enormous clout. These are almost always the people whose perspective you see on shows like Law and Order, Major Crimes, etc.: they are the completely unconstrained and unmonitored heroes of the judicial system, and in the past 30 years the proportion of all cases that they decide to recommend for felony charges has doubled, at the same time as the number of prosecutors has doubled, and crime rates have risen. This, Pfaff argues, is the root cause of the growth of mass incarceration.

But beyond this, Pfaff identifies a much more challenging and much more politically challenging aspect of the growth of mass incarceration, which is going to be very difficult to reverse. Most people in US prisons are in prison for real, serious crimes: 60% of the growth in prisoner numbers since 1990 was due to people imprisoned for violent crimes, and people convicted of the most serious violent crimes (murder, manslaughter, forcible sexual assault, aggravated assault and robbery) take up a disproportionately large amount of prison space and prison time. Seriously reducing the US prison population is going to require that the US voter be comfortable with releasing these prisoners, and being less harsh on violent criminals in future. This is a very politically challenging project, and lies at the core of the reform process: If the US criminal justice system doesn’t find a way to deal differently with violent criminals, the prison population will never significantly decline. To his credit Pfaff makes a powerful and clear argument that from a human rights and a law enforcement perspective, more lenient sentences and better policing are the key to reducing crime and mass incarceration. I find his argument persuasive, but then I would, wouldn’t I? And if you don’t, then you have to accept that the US is going to have a very large number of prisoners, much larger than most other countries, and there is no solution to this problem.

Pfaff goes further, to point out that much of the rhetoric of the prison reform movement is antithetical to this ultimate goal. Many prison reform efforts are pushed as efforts to release low-level prisoners to make space for those who “truly deserve prison”, and even if this balance is not stated explicitly it is implicit in the argument that prison should be for violent crime. America is experiencing a period of declining violent crime at present, but if that should reverse then this logic of reform will be hard to reverse, and it will be hard to argue for more lenient sentences for violent criminals after years of arguing that prison is what these people deserve. Pfaff also points out that the last 10 years of prison reform efforts – which he argues have been supported by all sides of politics in the US – have shown very limited effect, and that this is primarily because they are focusing on a very small proportion of the US prison population (first time drug offenders) and that they need to move from these “low hanging fruit” to the real drivers of prison growth – and those who really suffer in this system – violent offenders.

Within this story there is a lot of other material to consider – this book is a short and well written work with a rich vein of material to consider. It certainly changed my view of the drivers of mass incarceration in the USA and the real reforms it needs. It also shocked me with how callous the US criminal justice system is, and how shambolic. In contrast to the UK, Japan or Australia, where the prison, police and legal systems are all relatively well organized around a single structure that coordinates well, the US system is fragmented and full of perverse incentives, all corrupted by the horrors of having public servants like prosecutors elected at the county level (shudder!) Pfaff also consistently returns to a discussion of how damaging prison is for inmates, their families and the communities they are drawn from, reminding the reader regularly that prison is a destructive experience for everyone involved, and he also reminds the reader regularly of the US electorates’ appetite for punishment. But the real challenge of this book is his focus on the need to treat violent offenders differently. He even challenges the concept of “violent offenders”, arguing that we should refer to them as “people who committed violent crimes”, and argues compellingly that our attitude to violent crime is completely wrong. This struck me because although I’m generally in favour of not sending people to prison for all the reasons Pfaff describes, I am just as prone as anyone else to demanding people be locked up (e.g. that was my first response to the Grenfell Tower fire) or to thinking a sentence isn’t harsh enough (as if I, someone who has never been to prison or spent any time as a free adult anywhere I didn’t want to be, could possibly comprehend whether a three year sentence is any less harsh than a five year sentence!). And Pfaff’s argument is pretty clearly that probably I, and most of the rest of us, have got it completely wrong on prison sentences – that a suspended sentence or a year or two is probably just as good a deterrent as five or ten years, but has significantly less social and economic cost.

If I had any complaints about this book it would be that although he talks about race a little he doesn’t go into a discussion of race in depth, a problem in the American context. Also, although he repeatedly describes the lack of financial disincentives to county prosecutors sending prisoners to state prisons, Pfaff doesn’t seem to draw the obvious extra lesson here – that county prosecutors might have strong disincentives to send people to county jails, which have much less serious ramifications for their inmates than state prisons. In avoiding a full confrontation with the issue of race, and not fully drawing out all the implied pressures on prosecutors, Pfaff manages to miss the obvious possible extension argument underlying the points he makes: that a lot of prosecutors may well be cruel, racist arseholes, and that a root-and-branch reform of the entire prosecutorial system may be in order. But this is a common problem when confronting Americans’ assessments of their own problems, whether its Bernie Sanders or the gun control movement or Black Lives Matter: The American political system is rotten to its core, and it is going to take a lot more than a few piecemeal changes to parts of it to fix the huge problems lurking at its base. We’ve just passed the 4th July, so it’s probably worth reminding my American reader(s): you could ask the UK to take you back, you know. For all its flaws, the UK’s democracy is vastly superior to yours. You’ll have to give up your guns and you may have to learn to shut up occasionally, but in exchange you’ll get a functioning democracy. Think about it!

Anyway, jokes aside, this is a great book, a truly enlightening exposition of one of America’s great problems. If you are interested in drug decriminalization and have always assumed that this issue is at the heart of America’s prison problems, or if you are generally concerned about the way America needs to reform its criminal justice system to become a better country, then this book is a must read. It’s well written, well argued, dry but not exhausting, and compassionate towards the people at the core of the story: the prisoners, who by now are a large proportion of America’s population. If you care about the human rights of all people, regardless of what you might think of their worth as individuals, then this book is a compelling read. I recommend it to anyone interested in this important topic.


fn1: this is often characterized on the left and by libertarians as “the war on (some classes of people) who use (some classes of) drugs” but this book makes it very clear that the prejudice in the criminal justice system extends across the board, and that singling out one class of crimes (drug crimes) as a cause of racial disparities in incarceration won’t work, because the same racial disparities exist across all laws.

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