Most people know the standard story why mass incarceration spiraled out of control in this country.  In response to the civil rights movement, we accelerated the War on Drugs and started locking up a lot of low-level, non-violent drug offenders.  We also passed laws making sentences outlandishly long – people might go to prison for a decade for minor slips.  After the three-strikes laws, people might be shut away for life.

41U2y6n5hgL._SX327_BO1,204,203,200_In Locked In, economist & law professor John Pfaff presents data suggesting that the story everyone knows is incorrect.  According to the data he found, “Although the share of the prison population serving time for drugs rose during the 1980s, the share was 22 percent at its peak in 1990.  By 2013 it had fallen to under 16 percent.”  Instead, most people in prison are incarcerated for violent crimes.

Of course, it is still possible that the War on Drugs led to mass incarceration.  If someone is locked up for 10 years for drugs, and then, after getting out of prison, does something violent and is locked up for an additional 40 years, you’d find that only 20% of the prison population was due to drugs.  But the first incarceration might’ve caused the second, by fraying the person’s social network and exposing him to violence inside.  This might explain what happened to my mother-in-law.

And a War on Drugs can make entire communities more violent.  The main benefit of state violence is that it suppressed violence from individuals.  Police officers reduce theft and assault because they represent the threat of violent reprisal from the state.  But the War on Drugs causes entire communities of supposed “criminals” to lose police protection – without the help of the state, they have to rely on individual violence to enforce property rights.

These alternative narratives do not contradict Pfaff’s central message: the phenomenon of mass incarceration in the United States did not originate the way many people assume.  Instead, Pfaff’s data suggest one major cause: prosecutors.

Samjain_warrantAfter someone is arrested, prosecutors decide what charges to file.  Even if the police have collected a lot of evidence, the prosecutor may choose to go easy on someone, perhaps even dropping the case entirely.  Alternatively, the prosecutor may file many extra charges that aren’t supported by the police report at all.  No explanation needs to be given, and there won’t be any official record documenting the prosecutor’s decisions.

Myriad county-level prosecutors across the U.S. decided to get tough on crime, and that caused mass incarceration to spiral out of control.  According to Pfaff:

The crime decline since 1991 has been dramatic.  Nationwide, between 1991 and 2008 violent crime fell by 36 percent and property crime by 31 percent.

While crime rates fell, police “clearance” rates – the percentage of each type of crime that results in an arrest by the police – remained relatively flat, and in some cases declined.  As a result, as violent and property crimes fell, so too did arrests for those offenses.

Yet while arrests fell, the number of felony cases rose, and steeply.  Fewer and fewer people were entering the criminal justice system, but more and more were facing the risk of felony conviction – and thus prison.

In short, between 1994 and 2008, the number of people admitted to prison rose by about 40 percent, from 360,000 to 505,000, and almost all of that increase was due to prosecutors bringing more and more felony cases against a diminishing pool of arrestees.

Decisions made by a prosecutor typically receive no oversight.  Because the vast majority of cases end with a plea, the prosecutor is effectively judge and jury as well.  Using the threat of an egregiously long sentence if someone is found guilty in a jury trial (someone in our writing class was recently facing 32 years for burglary), a prosecutor can easily coerce people into signing away five or ten years.  Even innocent people plead guilty – if you’re told that you will have to sit in jail another six months waiting for a trial, or you could enter a plea and be released today for time served, would you stick it out?  What if you had young kids who needed you home?

Because prosecutors have so much power, Pfaff argues that in many ways there is not a criminal justice system in the U.S., but rather 3,000 idiosyncratic county-level criminal justice systems.  Equivalent actions reap very different consequences depending on which county they are prosecuted in.


This discretion has the unfortunate consequence of letting one county drive another into bankruptcy … especially in a state like Indiana, which tried to combat the perverse economic incentives of mass incarceration (cities have to pay for crime deterrence by hiring police officers, but they foist the cost of crime punishment onto the state, which hires the COs who staff prisons) by forcing counties to hold low-level offenders in their own jails instead of shipping people off to state prisons.  This benefits counties that can displace crime to their neighbors, instead of preventing it.

Education is both cheaper and more effective than punishment … but deciding not to educate children and then convincing the troublemakers to move to a new county is cheaper still.

The city council of Bloomington is struggling with this now.  A friend of mine has been riding with police officers for a writing project – he was told that, for drug busts, the police surreptitiously track suspects until they cross county lines.  Bloomington is in Monroe County, where prosecutors are viewed as “soft” on drug crimes, offering treatment, therapy, and second chances (note that this supposedly “kinder & gentler” approach is still brutal, with huge numbers of people lolling in jail for months or years on end).  The police would rather make arrests in neighboring counties, where the prosecutors seek steep sentences for drug offenders.

This gives drug users, and many others who need services, an incentive to move to Bloomington.  If you need opiates to stave off withdrawal, you are better off living in an area with a needle exchange, proposed methadone clinic, and treatment options.

By establishing a reputation for excessive punishment, prosecutors can pressure the most expensive citizens to move away … the same way charter schools force out the most expensive students to fraudulently boost their success ratings compared to public schools.  The poor saps who think we have a moral duty to help everyone will have to spend more for outcomes that appear worse (since they’re working with a different population).

Mayhaps it’s not that the U.S. has a mass incarceration problem … rather, the majority of our 3,000 counties have mass incarceration problems.  Each operates independently, and, often, antagonistically.  We won’t fix it until we realize that we’re all in this together.