Attorney General Jeff Sessions wants to reverse the policies of the Obama administration, by prosecuting more cases involving guns and drugs, and seeking more mandatory minimum sentences. John Pfaff is a professor of law at Fordham University, and the author of “Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform,” a new book on America’s prison system. I interviewed him via email about the causes of incarceration, and the likely consequences of Sessions’s policy shift.
Many people have argued that the “war on drugs” has led to the great increase in the prison population. You argue that this theory doesn’t explain most of the increase. Why not?
At its simplest, it’s just a matter of numbers. Over half of all people in state prison are there for violent crimes, and over half the growth in state prisons since 1980 is due to locking up people for violent offenses. As of 2015, only about 16 percent of those in prison are there for drugs crimes. Of course, it’s true that drug prohibition can cause non-drug crimes, ranging from theft to fund a (more-expensive) habit to murder over a drug deal gone bad, so not everyone in prison as a result of the “war on drugs” is there for a drug crime. But studies suggest that ending the war on drugs would have complicated, off-setting impacts. For example, there would be fewer deaths over drug deals but more murders committed by people while abusing (some but not all) drugs.
There would be no more people arrested for selling drugs — and almost everyone in prison for drugs is there for dealing, not possession — but many of those who currently sell would still struggle to find gainful employment and would thus likely turn to other forms of crime to make ends meet.
One problem that both scholars and reformers face is that they think of the justice system as just that — a system with a coherent logic, design and goals. You’ve argued that it’s something much more messy — a kind of Kafkaesque ecology, in which unintended outcomes happen all the time. How does that ecology work, and how has it led to more people in prison?
The fairly incoherent way we divide responsibility across cities (which run police departments), counties (which elect prosecutors and judges and pay for jails), and states (which fund prisons and whose governors control the parole process) leads to all sorts of moral hazard risks by haphazardly separating cost and benefits. My “favorite” example is that county-elected prosecutors face no limits on how many people they can send to state-funded prison. Prosecutors get all the tough-on-crime credibility from sending people to prison, but their counties bear none of the financial cost. In fact, it’s “cheaper” for county prosecutors to charge someone with a more-serious felony (which sends the defendant to state prison) than with a lesser misdemeanor (which lands the defendant in county-funded jail or probation).
Read the full piece at The Washington Post.