Justice in America Episode 3: Who Built Mass Incarceration? Prosecutors

Who has had the biggest impact on the growth of our incarceration system? It’s not the judge, the jury, or the legislator. It’s not the police, and it’s certainly not the president. It’s someone else—the prosecutor. Prosecutors are getting more attention now than ever, but many people still don’t know what they do.  

Prosecutors don’t just play an important role at trial. It is prosecutors who recommend what bail a judge should set, prosecutors who decide whether a person should face criminal charges and what those charges should be, and prosecutors who control the plea deal process. Perhaps more than anyone else, prosecutors are responsible for our mass incarceration epidemic. On this episode, we’ll explore the impact prosecutors have and take a look at how they wield their power.

We’ll talk about the problems with prosecutors, and their excessive power, negative incentives, and almost total lack of accountability. We’ll also talk to John Pfaff, a lawyer, economist, and prosecutor expert, whose book, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform, examines the power of prosecutors.

Justice in America is available on iTunes, SoundCloud, Stitcher, GooglePlay Music, and LibSyn RSS. You can also check us out on Facebook and Twitter. Our email is justiceinamerica@theappeal.org.

For more on prosecutors, check out these resources:

This week on Last Week Tonight, John Oliver coincidentally did a segment on prosecutors. Check it out here.

Here’s an op-ed in the New York Times Josie published last fall on prosecutors that pretend to be reformers but fall short.

The Brooklyn Defenders made this awesome video on the power of prosecutors last year.

Radley Balko always publishes great work on criminal justice and law enforcement, particularly prosecutors. You can find his work at the Washington Post here.

Here’s a good piece on our guest John Pfaff’s book from the Marshall Project.

The Appeal’s other podcast, also called The Appeal, had Josie on for their first episode to talk about prosecutors. Check it out here.

And of course, we publish a lot of pieces on prosecutors at The Appeal. Here are some pieces from just the past few weeks: Amanda Sakuma wrote about a primary challenge to the St. Louis County Attorney who, in 2014, chose not to charge the cop that murdered Michael Brown. (The challenger, Wesley Bell,  subsequently won.) George Joseph and Simon Davis-Cohen investigated the Bronx DA’s office and the ways they intentionally drag cases out, improperly burdening defendants; and Jessica Brand and Ethan Brown wrote about the federal prosecutors that charged over 200 inauguration day protesters for rioting, and the history of misconduct in that particular office.

Transcript:

[Begin Clip]

John Pfaff: That specific ADA sitting at his desk in 1990 is no less punitive that same ADA at his desk in 2010, there’s just 10,000 more of them and if you need to find cases that justify your job, we admit 600,000 people to prison, we arrest 12 million people. If you need a case there’s always a case to take.

[End Clip]

Clint Smith: Hey everyone. I’m Clint Smith.

Josie Duffy Rice: And I’m Josie Duffy Rice.

Clint: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Josie: Thank you everyone for joining us today. You can find us on Twitter @Justice_Podcast. You can like our Facebook page, Justice in America and you can subscribe and rate us on iTunes. We’d love to hear from you.

Clint: We started the show with a clip from our guest,  John Pfaff, who is a Law Professor at Fordham University Law School and the author of Locked In, where he uses data to discern the most powerful and often hidden forces behind mass incarceration. He’ll join us later in the show to help us discuss today’s topic.

Josie: Great. So today we’re going to talk about one of the biggest players in the criminal justice system.

Clint: No, it’s not the cops or the judge.

Josie: Not the jury or the defense lawyer.

Clint: Today we’re talking about the prosecutor. And just to clear this up now, in most places, at least on a local level, the chief prosecutor, the head of the office is called the district attorney. In some places they have other names. In Arizona they’re called the county attorney, in Florida they’re called the state attorney, on the federal level we call them US attorneys, but in most places they’re just called district attorneys. But there’s one prosecutor who’s made all the headlines lately and that’s special prosecutor Bob Mueller, and depending on your political opinion, Mueller is either a monster or potential hero.

Josie: But still normally when people talk about the criminal justice system prosecutors don’t always get a lot of attention and this is pretty insane because they are truly one of, if not the most powerful actor in the criminal justice system and the entire process. And they’re responsible for a significant portion of what we’ve seen over the past 30 years. This explosion of mass incarceration.

Clint: And both of us have thought a lot about prosecutors in the past few years. When I started teaching in prisons, I thought like many people do, that the judge was the most important person in the criminal justice system and it’s not to say that they’re not important, it’s just that I didn’t fully understand the extent to which prosecutors actually held all the cards.

Josie: Right. I’ve been writing and thinking about prosecutors pretty much exclusively for the past three or four years now and I’m kind of constantly surprised at just how much power they have.

Clint: Now, I’m not very good at math, but basically we can think of the effect that prosecutors have in terms of an equation. So prosecutors have a ton of power, very little accountability and a lot of bad incentives. Essentially power plus bad incentives minus accountability equals mass incarceration. So let’s talk about that first part. Power. To really show how they’ve contributed to mass incarceration we have to first back up and talk about what prosecutors actually do. You can think about the criminal justice process as a timeline. At the beginning is the initial interaction with the cops. That’s like the 911 call, the cops show up to your door, the cops pulling you over or its the point in the timeline that in some places, where young black men are subjected to what’s often known as stop-and-frisk and of course any arrests and this all happens at the beginning.

Josie: Right, so that’s the beginning and then at the end of the timeline, is what is generally considered the punishment. So this includes prison, probation, parole, all of that’s at the end. So what’s left then is this entire middle section, the time period from arraignment to sentencing and all of that involves the prosecutor.

So here’s Brooklyn public defender Scott Hechinger, talking about that middle space.

[Begin Clip]

Scott Hechinger: But the middle is the most critical part, cause the middle what happens in court, driven by prosecutors and laws that give them a ton of power, both reinforces what happens at the beginning  and drives what happens in the end.

[End Clip]

Josie: Right, so like Scott said, in the middle part, prosecutors have a ton of power.

Clint: They decide what charges to bring. They decide what cases to drop and as we talked about in our bail episode, in many places prosecutors are the ones recommending a bail amount to the judge. They decide what plea deals to offer and have pretty much total control over the plea deal process as a whole. If a case goes to trial, they play a role in who gets on the jury. They decide which evidence to turn over to the defense. They recommend a sentence. It’s important to understand that the prosecutor is really the person who decides whether to sentence someone to death or life without parole or something different. In other words, they control literally life or death.

Josie: Here’s Julie Stewart, the founder of Families Against Mandatory Minimums, on Prosecutorial power and the way that shapes their decisions.

[Begin Clip]

Julie Stewart: I don’t think prosecutors are per se bad people but I think power is seductive and they have a lot of power and they like it, and they get to not just rack up a victory, a win, but they can also say  “and he’s going to prison for 25 years.”

[End Clip]

Josie: So like you said Clint, thats a lot of control. And that control has only increased over the years as more arrests were made, as harsher charges have been brought, as more cases are settled by plea deal, prosecutorial power has increased and increased and increased.

Clint: But their power, it takes other forms too, like the cops and the sheriffs and the correctional officers, prosecutors are part of the law enforcement system. They literally represent the government in court. They have the whole power of the state behind them. In practice, what this means is that by the very nature of their position, they’re much more likely to be cozier with the cops and they often have a closer relationship with other people in the court like the judge. In fact, a lot of judges are actually former prosecutors and judges are way more likely to be former prosecutors than former public defenders or defense attorneys.

Josie: Yeah, there haven’t historically been great numbers on this in terms of how it plays out on the state level, but recently this professor, Jed Shugarman, um, has been looking at this question, how many judges are former prosecutors and how many elected officials are former prosecutors? What he’s found is that in at least thirty eight states, a senator, a governor or an attorney general holding office in the past ten years was once a prosecutor. Even when you look at Obama’s nominees to federal court, you can see how often prosecutors become judges. Forty three percent of Obama’s nominees to federal trial courts were previously state or federal prosecutors. Only about one third of that, fifteen percent were former defense attorneys.

Clint: Those numbers are bananas.

Josie: Yeah.

Clint: So as you can see, they have a lot of control in this process. They have better relationships with people in the criminal justice system, like the cops and the judges, but they also have power at a legislative level. In most states, prosecutors and the state prosecutor associations have immense lobbying power and they often can just stop reform right in its tracks. So for example, take Louisiana, which is my home state, and again the incarceration capital of the world. The Louisiana District Attorneys Association is one of the most powerful DA associations in the country. And data from 2012 to 2015 showed that when the DA Association supported a bill it passed eighty five percent of the time at the State House, but when they opposed it, the bill only passed thirty eight percent of the time.

Josie: And lastly, on this point about power, prosecutors just have more resources usually. They have ready made detectives at their disposal, in other words they have the cops, defense attorneys have to pay for any investigative work that they need. And while prosecutor offices aren’t typically rolling in money or anything they are almost always better funded than the public defender offices.

Clint: Right.

Josie: And prosecutors have another kind of power too. They have a lot of demographic privilege. As of 2016, ninety five percent of elected prosecutors were white and almost eighty percent of elected prosecutors were white males.

Clint: So that’s like power on power on power.

Josie: Right.

Clint: And so it’s really important to understand what exactly it means for a single person to have that much power within the system.

Josie: Part of what it means to live in a democracy is that the powerful people are supposed to be responsive to the people they serve.

Clint: And all you need to do is look at 250 years of American history to know that that is not always the case.

Josie: Exactly. But you know, in theory okay, so, let’s imagine how we want to make sure that someone who has this level of power doesn’t abuse it, right? Like we want to prevent abuse of all of this control that prosecutors have. So what would that look like?

Clint: Well, I imagine we’d want them to be elected. Someone that powerful should be subject to the democratic process. And we’d probably want transparency too. We’d want to know what decisions prosecutors were making. So I guess that means we’d want data and to know if they’re locking up too many people and what those people are actually getting locked up for.

Josie: Right. Totally. So he wants them to be elected and we probably want them to have competition in those elections, right? So voters have a choice. And I totally agree, transparency is huge, data is a huge part of that. Um, and I think along with the transparency, we also want to know if they are lobbying their legislators like you brought up before, if they are going to the legislature and calling for harsher laws, I think voters should also know that. And then I think we’d want oversight. We want to know that someone or some body or some group is responsible for making sure that prosecutors are behaving ethically.

Clint: Definitely. And we’d probably also want to know that they’re holding other branches of law enforcement accountable. So if a cop kills someone, think Eric Garner, Philando Castille, Renisha McBride, Tamir Rice, Freddie Gray, you’d want to be sure that the prosecutor is going to hold that officer responsible.

Josie: Right.

Clint:  So I think what we’re basically identifying here is just accountability. We want prosecutors to be accountable to the people that they serve. I’m sure no one will be surprised to hear what we’re going to say next, which is that this level of accountability essentially just doesn’t exist. Now to be fair, to an extent this is changing, like there’s more discussion around prosecutors and more insistence on holding prosecutors accountable, now probably as compared to any other time in our history, but even as this is changing, many places have the same problems they always have had.

Josie: So basically all the things that we just identified that we would want for someone that powerful, the transparency, the oversight, we just don’t have it. I mean pretty much none of it exists. The one thing that does exist is that prosecutors are elected, but even that really doesn’t mean much and the other stuff we don’t have. We don’t really know what prosecutors are doing a lot of the time. There isn’t transparency, there isn’t data, there isn’t oversight. It’s almost impossible for voters to really keep prosecutors in check.

Clint: In all likelihood when you’re reading about mass incarceration, you probably read less stories about prosecutorial wrongdoing than about any other thing in the system, but that’s not because there’s less prosecutorial wrongdoing. There’s plenty of it. Trust me. It’s just that very few people talk about it. There isn’t a lot of media attention around it and hasn’t been traditionally. For a long time it seemed like the prosecutor misconduct that is rampant in the system just doesn’t draw the same interest as other wrongdoing by elected officials.

Josie: Yeah, and you know, there’s not really a definite explanation for this, by the way. I mean, maybe it’s because the harm that prosecutors inflict isn’t always directly physical. You know, cops inflict physical violence. Prosecutors don’t shoot unarmed people in court. Right? At least it’s not the same sort of visceral story. Or maybe it’s because the entire prosecutorial processes just opaque and so the vast majority of people don’t know what’s going on or maybe even what prosecutors do.

Clint: Right.

Josie: Either way, whatever the reason, prosecutors have just basically managed to escape accountability forever. But let’s talk about the first thing you said, which is that elections would be useful for keeping prosecutors accountable and the thing is, like we mentioned, prosecutors are elected.

Clint: Yeah, that’s definitely true. At least for the head prosecutors. See voters elect their district attorney, usually by county. In some states, like Georgia, prosecutors can represent more than one county. In other states, like New York, each county has its own prosecutor. Either way in all but three states in the country, prosecutors have to win at the ballot to get elected and then reelected. So in theory, that’s how we hold them accountable. Right?

Josie: Right.

Clint: But in practice, not so much. As we talked about, prosecutors often just skate by in elections. In most places they get very little scrutiny and most people aren’t paying attention to them. So you can have pretty corrupt prosecutors continue to be re-elected and re-elected and re-elected every term.

Josie: Right. And part of that is because prosecutor elections have basically traditionally focused on just one thing: who is toughest on crime. Who will put quote unquote “criminals” away for the longest time, who will be the harshest, you know, traditionally the prosecutorial narrative has basically just been that one note, only the meanest, most aggressive prosecutors can actually keep the neighborhood safe. And look, like we said, this is changing some of these days and prosecutors are getting more attention than they used to. But generally, and historically, this has worked, it’s worked for years in all kinds of districts. It’s worked in rural areas and cities, not just in Southern states, but in the North and the Midwest and the Southwest and the coasts, not just with Republicans, but with Democrats. I mean prosecutors have traditionally kept their jobs for a very, very, very long time using this tough on crime strategy. In fact, between 1996 and 2006, ninety five percent of incumbent prosecutors won re-election. Ninety five percent and eighty five percent of prosecutors ran unopposed.

Clint: Eighty five percent of prosecutors ran unopposed.

Josie: Yup. Eighty five percent.

Clint: So the whole accountability at the ballot box, that’s not really a thing. If you’re a prosecutor and you want to win for years, the tried and true approach was to just be tough on crime, just be tough on crime and you can win. And this created some very perverse incentives and it’s also something that obviously can’t be disentangled from a history of racism and white supremacy in this country.

Joise: Right. So we talked about the first part of our equation, which is power.

Clint: Which they have lots of.

Josie: And the second part, which is accountability.

Clint: In which there’s basically none.

Josie: And so this is the last part, right. Incentives. And you know, law enforcement is supposed to care about justice. That’s the job of the criminal justice system.

Clint: It’s literally in the name.

Josie: Exactly. We want them to be primarily focused on justice, and we know that justice doesn’t just mean convictions. We want a prosecutor who doesn’t overcharge, we want a prosecutor who doesn’t charge someone with a crime even when they don’t have the evidence to prove that that person’s guilty. We want a prosecutor who doesn’t want to lock everybody up forever for every little thing.

Clint: But as we know, the incentives for prosecutors are basically to care about convictions over justice. In the vast majority of places prosecutors are focus primarily on these convictions. I mean, that’s how they’re determined whether or not they’re doing good at their job by most people. Like we said, this is traditionally how people win elections. So if you’re a prosecutor who needs to prove to the next election cycle that you’re tough on crime, then naturally you’re going to incentivize your assistant prosecutors to be as tough as they can be. No matter how many people you put away.

Josie: Right. Like you said, this is how they keep their jobs. But the hypocrisy is that as they get harsher and harsher on regular citizens, especially poor people and black people and brown people, prosecutors are often going very, very easy on other law enforcement officers and elected officials who commit crimes.

Clint: And this goes back to that incentive thing we were talking about. If you have a close relationship with law enforcement, you have pretty much no incentive to hold police accountable or responsible for wrongdoing. We see this all the time when police act unconscionably and don’t ever have to suffer a day of consequence.

Josie: So before we go, one story about prosecutors obsession with winning. I think about this one all the time. There’s one Texas district attorney who basically threw parties for his assistant prosecutors when they sentenced someone to life in prison.

Clint: Jeez.

Josie: It didn’t matter what it was for, it didn’t matter who it was, I mean literally he would give his assistant prosecutors, he would give them gold coins for putting someone in prison for life. The prosecutor got a gold coin for the wall and everyone would drink punch and eat cake and celebrate the fact that someone was spending the rest of their life in prison.

Clint: Are these literal gold coins or are these metaphorical?

Josie: Literal Gold coins. Actual gold coins. Yeah.

Clint: Wow.

Josie: You know, and as a prosecutor in another office put it, you don’t get any congratulations when you help someone to go to college instead of prison, you don’t get any congratulations when you help someone get back on their feet. And what that meant was that there was just no space for leniency, no space for mercy and no space for a second chances.

Clint: So we’ll stop there for now, but we have more about prosecutors coming up this season. We’ll talk more about some of the progressive prosecutors changing the game and we’ll also be sharing stories about some of the more terrible prosecutors who are out there today. But for now, we’re going to interview John Pfaff who is a Law Professor at Fordham University Law School and the author of Locked In.

[Music]

Josie: Thank you so much for joining us John. We’re so excited to have you on.

John Pfaff: Oh, thank you. It’s great to be here.

Josie: So I wanted to talk to you about one of your favorite topics, which is data. Um, you’ve spent so much time looking at all the data really around crime and the justice system and trying to really understand what caused mass incarceration and in your work and also in your book, Locked In, you talk a lot about the role of prosecutors. So can you tell us the basics about the impact that prosecutors have had on mass incarceration in the past few decades?

John Pfaff: Sure. So the data we have on prosecutors is like all of our data in criminal justice, incredibly limited. So it basically starts in the early nineties and goes through the sort of the mid to late two thousands. And the story we see emerging over that time, which is, which is an interesting time where crime is steadily dropping and serious crime is dropping a lot but prison populations keep rising at kind of a pretty unflinching rate until around 2000 when they level off a bit. And what we see happening is that as crime goes down, arrests go down as well, right? So you don’t see more people being arrested and especially you take marijuana out of the picture, which generally has little impact on prisons, directly at least. Like there’s a pretty significant decline in arrests. So we have fewer and fewer people entering the criminal justice system. And yet we keep admitting more and more of them into prison. And what we see, what the data seems to at least say is happening, is that there’s no real change in the amount of time people spend in prison except for murder. But the one thing that is changing is the probability that that arrest turns into a felony case. That changes substantially over the nineties and two thousands. So you have fewer and fewer people entering, but a greater fraction and a greater total number of people find themselves facing a felony charge, whereas they face that felony charge, they are about as likely to go to prison in the nineties as in the two thousands, they spend about as much time. And so the one thing that changes is this probability of being charged with a felony and that’s entirely within the discretion of prosecutors. There’s no oversight of any sort, certainly no legal, nobody can appeal whether it’s a charge or not a charge, there’s no real good political check on that. It’s entirely their discretion. And for reasons that aren’t really clear, they became a lot harsher over this time.

Clint: So can you explain a bit, you mentioned that the, it’s not necessarily that the sentences have gotten longer, but its that people are being charged with felonies, and I guess you mean as opposed to misdemeanors?

John Pfaff: Honestly, it’s unclear. With what sort of fractured data we have its consistent with a story where a whole bunch of misdemeanors become felonies and a whole bunch of cases that weren’t charged become misdemeanors or it could be they’re just jumping the queue altogether and things that never would have been charged before are just going all the way to felony from the start. It’s really, we don’t yet have any sort of good database to explain which of those it is.

Clint: Does the data suggest or illuminate what was the sort of catalyst to that shift? Like at what moment did so many of these misdemeanors just begin to become felonies? Like there a, was there something happening in our politics that was tied to the sort of shift that we see taking place?

John Pfaff: Yeah, and it’s a great question. And the problem we have is that this data set I have starts in 1994 and basically the increase is kind of very steady over that time. So whatever change probably happens before my dataset starts. And so it’s hard to see what that change is. And I think it’s worth pointing out that my data set on prosecutors comes from the courts. You just can’t get data out of DA offices. And so the DA, the data I have is actually felony filings in the state court because while DAs either don’t or I’m beginning to realize just can’t share data because they don’t gather it well, the court system does. But sort of for me the dominant explanation I have right now, I’m sure there are lots of different ones, but the explanation that strikes me the most important is arguably the most boring, I guess, which I think is so often the case. Which is I think it could very well just be like a staffing issue. We only have three data points on this, but between sort of the early 1970s to 1990, we hire about 3,000 more line prosecutors nationwide. It goes from about 17,000 and 20,000 Assistant DAs across the country. And that’s as crime is going way up. As crime drops over the 1990s and 2000s, we hired 10,000 more ADAs from 20,000 to 30,000. So crime goes up at 3,000, crime goes down at 10,000 more. And while we don’t have any good data on sort of DA productivity, every proxy I’ve been able to think of like, you know, ADAs per crime, ADAs per arrest, ADAs per prison admission, whatever sort of indirect measure I get, all tell sort of the same basic story, which is that specific ADA sitting at his desk in 1990 is no less punitive than that same ADA at his desk in 2010. There’s just 10,000 more of them. And if you need to find cases that justify your job, we admit 600,000 people to prison, we arrest 12 million people. If you need a case there’s always a case to take. The other interesting aspect that it gets less attention is that that staffing issue, that increase in staffing is probably mostly an urban phenomenon because most offices are very, very small. In those 60 percent of counties that are fairly small, the median number of lawyers is about three. They’re not in some big staffing boom. But what happens between 1970 and 2008 or so, in those counties is that the number of counties with a full time DA, an elected DA running the office as opposed to know a private lawyer with a contract on the side, goes from about 45 percent of counties to about 85 percent of counties. Um, and that’s entirely a rural phenomenon. So you know, the urban counties staff up and the rural counties professionalize. Instead, you know, of having your prosecution job as something you take on the side, but it doesn’t really pay the bills compared to your private clients, now you are the DA, like this puts your kids through school and pays your mortgage. I think explains one reason why, you know, rural counties continue to be quite punitive even, you know, the reform movement we see is predominantly urban and I think it’s because it’s a much more like job now in, in rural counties than it was before.

Josie: Yeah, that’s really interesting. And also just emphasizes kind of the the importance of the general tough on crime narrative to America that like crime would be going down and we would ever hire 10,000 more people for a job without that kind of being questioned is, is really fascinating. So you’re a Law Professor at Fordham-

John Pfaff: Yeah.

Josie: And you’re an author. You wrote this amazing book Locked In. I can’t recommend it enough, but you’ve also built this sort of significant audience of people who are not lawyers and not economists. And I’m interested in I think that part of that is your willingness to sort of discuss publicly the misconceptions that people have around criminal justice and mass incarceration. And I was hoping that you could talk about some of these misconceptions. What stories do you think get excessive attention that don’t actually really have an impact on the system? What stories do you think should get more attention? I know you have, I can think of some examples that you’ve taught me about. So I know you have some.

John Pfaff: Yeah, I mean I sometimes joke that I feel like the way to solve criminal justice is to get Leslie Knope involved right from Parks and Rec. Right? Because the thing that made her, I mean she was kind of mocked, her character’s kind of mocked on the show for this, but what makes her kind of a hero in my eyes is that she really cared about like the boring nitty gritty difficult stuff, right? She would not glaze over, if you started talking about no intergovernmental transfers and moral hazards in budgets. Right? She’d jump on that and oftentimes I think a lot of the problems that persist because they’re boring and no one wants to pay attention to them. And the stuff that is exciting and gradual is emotional tension, like that’s the stuff that matters a lot. Right? So you know, one of my big complaints is we talk all the time about private prisons, how awful private prisons are. We’re seeing it now with you know half my Twitter feed some days seem to be people saying, you know, ‘Well, if it weren’t for private prisons, we wouldn’t be stripping babies from mothers on the southwest border. It’s all being done for GEO Group,’ but it’s just not true. I mean, the private prisons’ profit is about what? $400 million dollars a year at best? And the wages that go to the public sector guards are on the order of like $30 billion. Right? So really orders of magnitude more and so, yes, talking about profiteering off of, off of the misery of others is an emotionally gripping issue. Um, but the public sector’s profiteering in, in much more subtle but no less important ways and they’re much more powerful about it and kind of get ignored in the process. Right? Or, or think about the fact that, you know, somebody getting 60 years for a drug offense, it’s crazy, right? It’s ridiculous. There’s, there’s no reason for that whatsoever. I mean, there’s, even putting aside whether you should be incarcerated for drugs at all, you know, some of these massive sentences are crazy, but they get attention because they’re so rare. Right? And so, you know, you served have to pay attention to the, to the not so long but too long then they have to be sentences then say violent crimes. So that’s really where things happen. Um, and so I think too often like the things that are emotionally gripping are kind of tangential. When I started teaching, I think Fordham had two clinics on the death penalty and no classes on sentencing law. And death row is 3,000 people in a system that manages somewhere between nine to ten million people every day. Right? It’s, it’s a, it’s an error, it’s an emotionally visceral gripping issue, but it’s like one twentieth of one percent of what’s going on in any given day. Um, and I think it’s just a persistent problem in, in criminal justice.

Clint: On that note, I’m thinking about how so much of the sort of public discourse and public consciousness about mass incarceration, especially over the last decade, has been shaped in large part as a result of Michelle Alexander’s book, The New Jim Crow. And that book has galvanized the imaginations and the consciousnesses of have so many people in this country, but it has not been without its criticism. And, and I’m curious how you see your work. Do you see your work in conversation with The New Jim Crow? Do you see it as expanding on the argument made in The New Jim Crow? Do you see it as at odds with the argument made in The New Jim Crow and sort of what your relationship is to not even necessarily that book specifically, but the sort of set of arguments that are being made in a text like that?

John Pfaff: Yeah, I mean oftentimes my book has been sort of framed as a, this is the rebuttal to The New Jim Crow and I think I kind of maybe started off with that bent, but as time has gone on, I, I think it’s much , it disagrees in some parts, but much more I think it’s more, there’s more of a conversation there than I think people oftentimes think. I mean the, the, the place where it is very much as a direct disagreement is Alexander repeatedly states in many ways in very unequivocal language that it is the war on drugs that has driven our prison population and the fact is, you know, only fifteen percent of all people in prison are there for drugs. Fifty five percent are in for violence. We don’t even know how many of those people who are in for drugs are people who could have been charged with violence, but they pled around it. So, the actual number, if you couldn’t send in prison for drugs, maybe even more being in for violence. At the same time, at the moment she wrote the book, you weren’t going to create a movement based on being less harsh to people convicted of violence. Right? That just wasn’t where we were when the book came out. Right? And so I understand that the movement had to start by focusing on drug cases. They are perhaps the most easy to argue for, for being lenient towards, um, they are probably the ones best able to galvanize most outrage. Like this seems the most, the most ridiculous to send people to prison for at all. Certainly for the length of time some people get sent for and so at that moment even as a factual error to say, look, let’s start by focusing on drugs that that makes sense and I think, you know, historically speaking was probably the trajectory we had to take. The problem I have is the fact that we’ve told this narrative so much that it’s become almost counterproductive because what states do oftentimes is that in passing these reforms to make things less harsh for drug and property crimes sort of the trade off they make is to make things more punitive for violent offenses and that in the long run is not going to work. And right before my book came out, it came out soon after, my editors wouldn’t let me destroy all the page numberings to put anything in about it,  Vox actually, this is really remarkable, polled about 3,000 Americans nationwide and there are two results that were particularly alarming. One was the question, ‘Do you think about half of all people are in prison for drug?’ And the majority of liberals, moderates and conservatives, which, how they broke it out, all said yes. So, you know, they think it’s over fifty. It’s actually fifteen. That’s problematic but manageable. The second question that’s really disheartening was along the lines of, ‘Do you think we should punish those convicted of violence who pose little risk of reoffending, should we punish them less?’ And like seventy percent of conservatives but also like fifty five to sixty percent of liberals all said no. And so we’ve kind of convinced ourselves that what we do towards violence is okay and acceptable. Um, and we can, we can, we can solve this problem just through the low level nonviolent drug offender. And that I have, I think it was where I had to start, but the rhetoric has now got himself tied up in these kind of, these knots we can’t quite get out of. I think the other big place where you could frame it as, as disagreement but I think it is more, should we think it was more as a conversation, is that Alexander’s version it takes a very sort of top down view, right? That we designed this system in order to sort of roll back civil rights gains and I think perhaps it’s just my, my, my training as an economist, I tend to view things bottom up. And so I focus a lot more on how does this system end up undermining racial equality, not from a top down point of view, but sort how do sort of the underlying incentives and how we’ve structured this sort of chaotic mess of institutions like sort of cause problems to emerge even if there’s no one at the top who’s trying to directly dictate it. And I think both, there are elements to both approaches, which is why I don’t think it’s really a disagreement. I think there are, there are certainly very governmental top down things that have mattered. I think less so in criminal justice, but I feel like things like red lining and denying the GI Bill and sort of the the top down efforts by the feds to concentrate African Americans in sort of urban, dense poor neighborhoods has played a huge role in how criminal justice plays out, but I think a lot of it all starts as these less direct bottom up approaches that have sort of wrecked havoc as well.

Josie: I keep thinking about just about the lack of data and how little data exists and I think that plays into something else I’ve heard you talk about just how the data that we have tends to be interpreted poorly and problematic inferences are kind of drawn from it. I guess I sort of have two questions. One is, and it goes back to this idea that like we would hire 10,000 prosecutors when crime is dropping or that the narrative of us being in a kind of the throes of a crime spree when crime is lower than it’s basically ever been, what data do you think is like mostly misunderstood or commonly misunderstood and do you have any theories of why we, why the narrative around crime is so persistent, even when reality says something totally different?

John Pfaff: So these are both two very interesting and I think in some ways somewhat distinct questions. And so I sort of go the second one first, which is why do we, why do we maintain this belief about crime? And the survey people often point to is this Gallup Poll that, you know, consistently shows how a solid majority, sixty five, seventy five, sometimes eighty percent of Americans think crime is up year over year even when it’s going down. Um, there’s actually something very interesting about that Gallup survey, if you look at it, which is that from 1991, when crime actually starts going down, initially the percent of Americans who think crime is going up, starts to decline, right? So you know, perhaps in 1991 like eighty percent of Americans thought crime is rising, then it’s like seventy five, seventy four, seventy two and all of a sudden there’s this one year as crime is going down where a majority of Americans say that crime is going down, right? That only something like forty percent of Americans say crime has gone up. Even though crime has gone down and public opinion is kind of catching up with reality. And then the very next year the percent of Americans who say crime is going up even though it wasn’t, goes from forty eight percent to like seventy five percent. Like it’s this massive one year change in attitudes. And the year in which the attitude changes is 2001, 2002, which I think indicates that our views on crime aren’t always tied to actual crime. But it sort of broader social fear, right? That, that when Americans became divorced, when our understanding what crime is doing strikes me as being very much tied to 9/11 and sort of the general sort of social trauma of have that moment. And so a majority of Americans became scared, right? And, and crime is scary and so the world seems scarier. And so they start to project their own fears on, onto crime. Um, at the same time, there’s other interesting results that show that, for example, that even as a majority of, even as a large number of Americans say that, you know, crime is going up year over year, the number who say they feel okay walking around their house at night continues to rise. We feel locally safer as local conditions get safer. We feel more globally scared. So crime is going up, but it’s going up over there somewhere. Right? And I know around me it’s not, and it’s like the way we frame those questions is very important. Um, and for reform, I have no idea what that means. It could be the fact that if I vote based on how I feel walking from the train station to my house. Right? Even if like crime was high over there, you know, if I’m safe, I’m okay with this new change, then maybe that’s the result that matters is local result not this more global result. But you know, we still have enough crime that if someone, you know, you can always start every news cast with someone being murdered or raped or robbed. Americans kind of get, you know, if you don’t experience crime you sort of get it through TV. I mean, I know it’s the reality that millennials face, right? Which is that I was living on the south side Chicago starting in 1993. I literally felt crime drop in my neighborhood. I mean Hyde Park was never that dangerous, but you know, you’ve watched a campus crime map just like dissolve over my entire undergraduate career.

Josie: Right.

John Pfaff: Um, but now, you know, people living in a low crime country get all of their sense from the news. Right? And they don’t experience it and they don’t have any connection, ‘Oh, I’m not actually experiencing this crime’ because they had never experienced what a higher crime country felt like. As for the stats problem, I think the problem we have with that is that two things, one is that people tend to have a very clear, intuitive sense of what these numbers mean and what we gather might not match their intuition and its hard because you can’t just go out and just gather crime data, right? Because a lot of that goes unreported, goes unseen, goes unknown, and trying to figure out what exactly you’re measuring and how you’re measuring is incredibly difficult, right? So when people talk, when you use the word, like say, to me the most abused statistic of all is recidivism.

Josie: Oh my gosh, yes. Drives me crazy.

John Pfaff: It’s the worst because it has a very solid, clear, intuitive meaning to it, right? When we say recidivism, we all really mean the same thing. Like what is the chance this guy reoffends, but that’s nothing remotely close to what we could actually measure, but ends up not really measuring reoffending it measures this weird combination of number of subsequent bad acts done, police contact, police presence. Are you doing it in a heavily policed neighborhood or a lightly police neighborhood? Um, you know, how closely are you being tracked and monitored versus someone else? And it ends up being this much, much weirder number that is very hard to interpret, but it’s because, you know, we can’t really track the things that actually define it. Right? Like what we’d really like to know is when this person was punished, however we do that, he was committing X number of types of crimes per year. Right? And now three years later he’s doing Y number of these other kinds of crimes per year. So before he’s doing fifteen armed robberies per year, he goes to prison and he comes out and he’s doing, you know, he’s, he steals four times a year and sells some weed on the side. Right? That’s a huge improvement. Right? But we just, we can’t measure like their day to day behavior like that. So all we observe is the one crime that got busted for and then the one crime they get re-arrested for. We can’t observe that you go from doing twenty crimes a week to two times a week, right? We can’t observe how well, what the differences are in what’s going on. But you have to really think about it for a long time to really appreciate how the number we can actually gather, like what do you do that gets the attention of a police officer again, is not really what we think of as recidivism and we just treat that number like it’s the intuitive number that we have in mind.

Clint: So speaking of numbers, if I’m remembering correctly, you are a sort of critic of the idea of saying we have 2.2 or 2.3 million people in prison and jail right now. Um, and, and I’m curious what sort of framing, because that’s often the framing that’s used to eliminate how, um, how horrific our prison system is, how many people are incarcerated. But from what I’ve read and from following you online, you think it sort of doesn’t necessarily accurately reflect the scale and scope or the specific sort of nuances of how the system is operating. And I’m wondering if you can talk about, so your critique of that number and how you think it should be framed in our, in our public discourse instead.

John Pfaff: Yeah, absolutely. And so my concern is that I think it, it understates the significance that jails play as opposed to prisons. I mean, I remember just in grad school when trying to figure a dissertation topic you look at the numbers, there’s no, it’s 1.6 million people in prison, it’s 750,000 people in jail. Of course I want to study the bigger system, right? Prison matters more than jail it’s 1.6 million versus 750,000. But you know what those numbers are, is the number in the facility on December 31st of that year. So on any given day, roughly speaking, about now like, you know, 1.4 million people in prison, 750,000 in jail, but prison terms are, should be pretty long. They should be at least a year. Um, and so, you know, the 1.6 million is a fairly close estimate of the total number of people who are in prison at some point during the course of the year. But jail is much more of a flow, right? People spend very short periods of time in jail. You can get locked up for three, four, five, six days and go home. And so that one day count grossly underestimates the number of people actually flow through jail in any given year. And you know, right now the Bureau of Justice Statistics, best guest has that like, you know, somewhere in any given year between 10 to 12 million people go to jail. Not all unique people, you know, some might go five, six, seven, twenty, thirty times a year, um, but it’s probably on the order of six, seven million unique individuals get sent to jail for at least some period of time every single year. Um, and I think by focusing on the one day count, we significantly look away from this incredibly understudied institution that just has literally millions of people flowing through it often for as little, almost completely no purpose at all, every year.

Clint: Are there processes by which we can get better data and does it have to be done through sort of external forces like researchers or is it something that can be done in each municipality, in each county, in each state?

John Pfaff: No, it’s, I mean, that’s why I find the 750,000 so troubling is, you know, it’s off by more than a factor of ten about the actual real human contact of jails. I think we’re finally starting to see attention turn to jails. I’ve had several grad students tell me how I know their, their dissertations are focusing on jails now, not prisons. And um, some nonprofits are working on this. Vera I think has been taking, the Vera Institute for Justice here in New York, I think is taking a very aggressive stand trying to get data on what jails do. Um, but it’s a slow painful process. And, and unlike prisons, we don’t have the same kind of data on them right now. However bad our prison data is, its problematic, you know, they are state facilities, they are run by state bureaucracies and state bureaucracies have the institutional capacity to gather data. And often they are under obligation to gather data, but jails are county institutions and poor counties with minimal budgets, they’re not going to produce much of anything. And so even those who want to study jail struggle because you can’t just say, well, here’s Arizona is jail population because you have, sometimes you’ve got to go county by county and figure out how to, how to track it and get it. Um, and they all do it in different ways, in different formats. And so one thing I’m actually doing the summer trying to teach myself how to do the coding I need to do to make the scraper to actually go around and try to actually gather the jail data off these various websites and see what you can do with it.

Josie: Right.

John Pfaff: Um, but I, I think it would ultimately take some sort of centralized push to do it. The counties aren’t ever I think going to allocate the resources for this in any meaningful way. Not, certainly not the smaller counties. Cook County, Rikers, LA County, they probably have this kind of data because they’re just such big bureaucracies. They kind of need it to function. But you know, getting what is going on in small local jails all across like you know Alabama or Georgia or even upstate New York, I think that’s going to require either the state or some sort of like massive nonprofit endeavor to pull that off.

Josie: I have the sense that police keep better data than prosecutors and I could be wrong about that, but the paperwork part of policing seems like part of the narrative in a way it doesn’t seem about prosecutors. And I’m wondering is that your sense related to Clint’s question and does that mean that we really could be doing a better job easier, much easier than it seems?

John Pfaff: So I would agree that um, police have better data than prosecutors. I don’t necessarily know why I, I think it could be the paperwork. I think also, at least when it comes to data, you know, the UCR [Uniform Crime Reporting] has been around for, you know, what, like ninety, almost ninety years now. Right? So I think there’s sort of this infrastructure of data gathering on the police side and for whatever reason, we’ve never felt compelled to create a uniform prosecutor report kind of series. I think because policing data, it was much easier to politicize. The whole goal of the UCR was to de-politicise crime data even though, you know, obviously it’s oftentimes politicized, so I’m not entirely convinced we can just improve what prosecutors do. I think there are offices that are trying to do that, but they’re finding it to be a very daunting task. I’m trying to figure out what to gather, how to gather, how to synthesize it. I think one broader problem we face in the criminal justice world is that this data is oftentimes scattered across multiple agencies. Right? You get arrested by the police, you get prosecuted by the prosecutor, you get sentenced by the court, you’re tracked by probation or parole or the jail or the prison. Jail is county, prison is state and it’s not always easy. You know, you have a mental health breakdown and you get picked up by the public health system, right? You have a some sort of health problem and get picked up by the, by the Medicare system and actually trying to track like sort of a person to understand what explains what’s going on is actually very hard to get, I think, all these various agencies to share data at all. I think they hoard the data which they have and they’ll try to start to tell a broader, more coherent picture is tricky.

Josie: To that point, do you get the sense that there is a lot of pushback from prosecutors on actually maintaining this data? I’m not sure, I’ve only seen one example in Harris County when Devon Anderson was there of like explicit refusal to kind of keep data, but I just don’t know if it’s because the conversation isn’t even happening.

John Pfaff: Yeah, I feel like there really hasn’t been much pushback because there hasn’t been much demand yet still. And we’ll see what happens as people start trying to make a more concerted effort. There had been some promising moments. You know, Kim Foxx in Chicago had a giant data dump about a year ago I think. At the, at that time, I think when she did the first data dumps, she dumped everything, it was data before she took over. It was just the easy data to share, but I think she has since released data that goes through her first year in office. So she’s actually sharing data that covers, you know, her administration, so it allows you not just to see what Anita Alvarez was doing before her, but to actually see what, what her office is, is doing and accomplishing. Um, and so what I’m kind of hoping at least is that if enough, um, major county DAs share data that could create sort of a norm to at least get the big counties to be more, more transparent. Uh, and you know, and while we talk about how there are about two hundred prosecutor offices nationwide, about sixty five percent of all felony cases are handled in just ten percent of those offices. Urban counties do a lion’s share of the work on punishment. And so if you just get those two hundred offices involved, you, you could get a tremendous amount of data on at least what’s going on in, in urban counties.

Clint: So what would you say for folks who are listening to this and they say, ‘Look, I am, I’m listening to this podcast because I’m really interested in criminal justice. I, I really want to figure out how I can make the best impact that I can. Maybe I don’t necessarily work in the criminal justice system directly, but, but I’m concerned citizen, I care about justice.’ What would you say to that person with regard to their best, the best thing that they can do to contribute to a sort of large scale decarceration and the end of mass incarceration in the US?

John Pfaff: Yeah, I mean I guess I would almost reframe it as, I wouldn’t even start by thinking about mass incarceration, but more, I’d say mass punishment more broadly. I mean because we do a lot of things, a lot of things now as you well both know, beyond incarceration that are pretty awful, right? Whether it’s, you know, just the collateral consequences that attach when you get convicted of something, right? You know, you, you can’t hold certain jobs or anything like that. Uh, it’s the fines and fees that we impose on people that they can’t from it. It’s putting people on probation for years, which we sort of constantly bear down on them and make their reentry really hard. Denying them access to food stamps, denying them access to housing. There’s, I mean there’s sort of everywhere you turn there’s a problem that’s being mismanaged. And so my always first sort of advice is think about what sort of issue in general, you yourself are most passionate about it. So like housing, is it healthcare, is it actually locking people up, is it helping people re-enter, or find jobs? But whatever you are most passionate about or grabs you the most like there’ll be something there that the criminal justice system is doing wrong and some group they’re trying to make it better. It’s such an emotionally draining issue to be involved in, that if you’re not, if there’s not something else keeping you really drawn to that aspect of it, I think it’ll just exhaust you too quickly. And so I think start with what kind of issue you’re most driven by and I guarantee you that you will find some group in your community that is working on that and reach out to them and see just what, what they need, but they will always need more volunteers, more people being willing to talk to legislators or mayors or governors, or whoever or you know just just helping sort of get this messaging out, um, that they’re trying to do. And I think that’s probably the most effective way to help.

Josie: They can always tweet you @JohnFPfaff and ask you-

John Pfaff: Don’t forget that ‘F’. There’s another guy John Pfaff who sometimes gets roped into debates he has no interest in because of that. (Laughs)

Clint: (Laughs) Oh man.

Josie: (Laughs) This is just really great John. Thank you so much for taking the time to talk to us. We really appreciate it.

John Pfaff: Oh, thank you. This was really fun.

Josie: That was John Pfaff, Law Professor at Fordham University and the author of Locked In. We’re so grateful that John took the time to join us today.

Clint: And we’re grateful all of you for taking the time to listen to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter @Justice_Podcast, you can like us on Facebook at Justice in America and we hope that you will go and rate us on iTunes. It helps a lot.

Josie: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn with additional research support by Johanna Wald. Thank you and join us next week.