The True Causes of Mass Incarceration

We talk about the United States’s unusually high rate of incarceration. How many Americans are in prison or in jail? What did they do to get there?

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John Pfaff joins us this week to talk about the United States’s unusually high rate of incarceration. How many Americans are in prison or in jail? What did they do to get there?

If we have roughly the same crime rate as we did in 1970, but have five times as many people in prison as we did then, what are those extra people in prison for?

Show Notes and Further Reading

Pfaff’s book is Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017).

Other books mentioned in this episode:

Listeners may also be interested in our Free Thoughts podcast episode with Bernard Kerik, “From Jailer to Jailed: Bernard Kerik’s Story.

Transcript

Trevor Burrus: Welcome to Free Thoughts, I am Trevor Burrus.
Aaron Powell: And I am Aaron Powell.
Trevor Burrus: Joining us today is John F. Pfaff, professor of law at Fordham Law School, and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Welcome to Free Thoughts, John.
John Pfaff: Thanks so much. 
Trevor Burrus: It’s discussed a fair amount I think it’s quite widely known. My bubble is pretty bubbly though ‘cause maybe people don’t understand [00:00:30] how many Americans are in prison, but how bad is it?
John Pfaff: So on any given day, there are about 1.5 million people in prison, and about another 750,000 people in jail. Either awaiting trial, or detained for a misdemeanor.
Aaron Powell: What’s the difference between prison and jail?
John Pfaff: So, prison is where you go if you get convicted of a felony, which is a crime that carries a sentence of at least one year. Jail is used either for misdemeanors, where the sentence can’t be more than a year, or for pre-trial detention; people who don’t make bail. There is variations across [00:01:00] states, but that’s roughly how the rule goes.
Aaron Powell: Are they different sorts of institutions, like is it different inside a jail than it is a prison?
John Pfaff: It is. Partly the turnover in jails is much greater so, any given day there are about 750,000 people in jail, but about 10 to 12 million pass through every given year. Which is a staggering number, we tend not to focus on. For prisons there’s about 1.5 million people in, and about 2 million people pass through each year. So there is not that much, the same level of turnover. They are also run by different bureaucracies, jails are [00:01:30] run and paid for by the county, and prisons are run and paid for by the state. Which has important incentive implications, but also, I think, prisons tend to be better funded, often times better maintained. Just because they are coming from a much bigger budgetary source.
Trevor Burrus: And, how does that number compare to the rest of the world?
John Pfaff: In terms of incarceration rates, there’s really no one close. Technically speaking the United States has the second highest incarceration rate in the world right now. The Seychelles, with a country population of 99,000, the prison population of about 600 [00:02:00] is currently ahead of us by about 50 people. If they let 50 people go, they would drop back to second. But, outside of that one exception, we have an incarceration rate, if you combine prison and jails, of around 700- couple hundred thousand. Places like France, and Germany are at around a hundred thousand. England’s at 200, and they’re the highest in Western Europe. The only countries in the world that are close to us are places like Russia, Cuba, Kazakhstan, not exactly countries we tend to compare ourselves to.
Trevor Burrus: But, [00:02:30] is it fair to make those comparisons when something like North Korea might not be using prisons, per se, in the convicting of crimes, but actually mass work camps and so …
Aaron Powell: The whole country’s a prison.
Trevor Burrus: The whole country’s a prison so their 100,000 per 100,000 incarceration rates possibly …
John Pfaff: So, my response to that is that if your defense is, “But what about North Korea?” I think I’ve won the argument. [laughing]
Trevor Burrus: That’s probably generally true. So, crime in America is pretty high, it seems that that would [00:03:00] be, it’s higher than Western Europe.
John Pfaff: To be fair, outside of lethal violence, we’re about middle of the pack compared to Europe. We’re not really have that much of a higher crime rate than Europe. For lethal violence, we are exceptionally higher, although lower, I think, than Americans think. I think that the right crime comparison to make, to keep it within our country, is that our crime rate today is about where it was in 1970, but our incarceration rate is five times higher. So, unless you think Americans are five times more prone to violence today than they were in 1970, that seems hard [00:03:30] to justify. If anything, I argue we’re less violent today, independent of prisons, than we were back then. It’s harder to commit crimes, it’s hard to steal a car now, it’s hard to steal a car radio. We have better medical care, so murders become aggravated assaults because people live longer. People play Xboxes, and so they’re not out, doing stupid things with their friends. Also, I think it’s worth noting that the Boomers were a uniquely violent cohort.
Trevor Burrus: One of the many things that they just screwed everything up in America about.[crosstalk 00:03:59]
Aaron Powell: Long running theme [00:04:00] of the show, what’s wrong with the Boomers.
Trevor Burrus: It has been, yes.
John Pfaff: [laughing] I’m glad I can add my part, because when it comes to crime, they’ve been particularly bad. I think what a lot of people don’t realize it that the much belied Millennials, they were equally large of a cohort. Sort of total number as the Boomers, and they hit their peak crime offending years when crime was at it’s lowest. All right, so the Millennials aged into and their not aging out of crime during a period when crime fell. So, saying that as a cohort the Millennials are just less violent.
Aaron Powell: Pathological laziness.
Trevor Burrus: It’s hard to Snapchat [00:04:30] a crime, I mean I guess …
Aaron Powell: Yes.
Trevor Burrus: Sexting would be, maybe the new crime for Millennials, but it’s not a crime wave. But, we are talking about all these statistics, but one of the things that you do a good job of pointing out in the book is that there’s just a ton we don’t know, also. What kind of things don’t we really know? I mean, I’m sure there’s a lot of things you as a researcher would love to have better data on, but …
John Pfaff: So, here’s some of the amazing things we just don’t know, how many Americans have a criminal record? No idea, we have survey data that gives us estimates, but we don’t really know. But, could [00:05:00] be as many as 60 or 70 million people have a criminal record. In fact, some people are going to hypothesize that one reason why labor force recovery in the United States is incomparable to that in Europe is there is literally 60 million people who are struggling to find a job, that Europe just doesn’t have similar records or the similar treatment of those who have had records. I can’t tell you how many unique people have been to prison, I can tell how many we admit every year, I can tell how many leave every year, but how many of those are people cycling through, how many of them are unique people? Very hard to say how many people have had that experience. We have no data on what prosecutors do, nothing. [00:05:30] We don’t know how they choose their cases, why they do what they do, we barely even understand what their offices look like on the inside. As I put in my book there, the single most powerful actor in the system, and we have just no data on them whatsoever.
Aaron Powell: Why would those numbers be, I mean, why wouldn’t we have that data? Like, how many unique people are in prison, or have been in prison, seems like … I mean the prisons have records, there’s records at the court level, so why can’t we get that data?
John Pfaff: So, it exists, but often [00:06:00] times it exists at the state or county level, and so gathering that’s very expensive, compiling it’s very expensive, figuring out how to make it comparable is expensive. I mean, one of these I find very remarkable is the FBI gathers crime data, and the Bureau of Justice Statistics gathers on, sort of, everything else, and you actually can’t merge their data together. They use different codes for crimes, in ways that don’t overlap well, and so you can’t really just slide … Even the two big federal bureaucracies, you can’t slide together.
So, imagine trying to combine New York data with California data. You can do it, and they’re working on it, but it gets even trickier. So there [00:06:30] is a prison data set that allows you to watch a person enter a prison in New York, you can watch that same person leave, you can watch them enter again. Right? Exactly what you’d want to be able to see. But, you can’t do that then with New Jersey also. Right, so you commit a crime in New York one week, two years later you commit a crime in New Jersey, and then you commit a crime in New York again. In the data he’ll show up as two different people, because they have two different ID numbers. You can try to match names, but there’s typos in the records, and they don’t keep the same kind of records, and it’s just really hard. 
We’re slowly trying to do it, but we just underfund our data agencies to such a staggering degree. I mean, the BJS, the [00:07:00] Bureau of Justice Statistics, they do amazing work, and yet they try to balance the federal budget, they keep shaving their budget down by like, 5 million dollars at a time. Right, they’re not going to save anything worth 5 million, but for a 50 million dollar agency, that 5 million dollar cut is huge, and so they just don’t have the resources to do what we need to do to figure out how to really understand how the system works.
Aaron Powell: So, if we have roughly the same crime rate as we did in 1970, but we’ve got five times, you said, as many people in prison as we did then?
John Pfaff: Yeah. Five times the rate.
Aaron Powell: What [00:07:30] are those extra people in prison for? How are, I guess, how much of that … Okay, so the rate, so the population is already controlled for in there.
John Pfaff: Right, exactly.
Aaron Powell: Okay, so what are those extra people in there for?
John Pfaff: So here is what makes reform very tough, I think there’s room for reform, but you’ll immediately see why the politics is going to be very hard. There are almost as many people in prison today for murder, as the entire prison population in 1970. All right, there are about 300,000 people in prison total in 1970. There are about 250,000 people in prison for murder, right, a lot [00:08:00] of people in prison, over half of all people in prison are there for violent crimes. That’s not to say that that works from an attorney’s point of view, or that we are incapacitating effectively, but to really push back you’re going to have to be asking really hard questions about the way we punish people convicted of violence.
Trevor Burrus: But, you make a very big point, part of your book is to explain what is not causing this problem, and I go to a lot of criminal justice reform meetings, and I am part of the community of people trying to fix this, and there’s a few things that you always hear, [00:08:30] and you point them out in your book. You actually just call it: in capitalized standard story, the things that everyone thinks in causing this. So, the first one is the drug war.
John Pfaff: Right.
Trevor Burrus: And you say, “No.”
John Pfaff: So, at a simple level, it’s no, because as it stands today, Americans believe about half of all people in prison are there for drugs. The actual number is 16%. So, less than 1 of 5 people are there for drugs, almost everyone is there for a property, or like I said, over half are there for a violent crime.
Trevor Burrus: But, half of all federal prisoners, about, [00:09:00] are drugs.
John Pfaff: That’s true, but the feds are about 10% of all prisoners. So the feds are 10%, the states are 90%, and the states all kind of look, more or less, like each other, and no one looks like the feds. All right, so the states are all kind of in that 16 to 20%, and the feds are uniquely in that 50% because the feds just have very strange jurisdictional rules. When I was a federal clerk in a federal court, if the judge and I were walking home, and we got mugged together, his offense is a federal crime, mine would have been a local DC crime. I wasn’t a sufficiently high ranking enough federal employee. You want to get a federal arson charge, [00:09:30] you literally need to like, burn down the White House. Right, that’s what it takes. 
So the states, they just look different, and they are about 16%. That’s still, all told, about 200 and some thousand people. Letting those people out would be a significant drop, and it’s not clear that they should be in prison. Then it gets a little more complicated, so the immediate rebuttal I always hear is, “Oh, but that’s too narrow in accounting. What about the guy who’s in prison for theft, because he stole to feed his drug habit?”,”What about the person that’s in prison for murder, because they killed someone [00:10:00] in a drug deal?” Those are property and violent, not drug crimes. In our official taxonomy, drugs are towards the bottom, but they’re still caused by the drug war. Fair point, but not exactly. 
So to start, almost everyone in prison for drugs is there for trafficking. Now, to be fair, trafficking tends to be a fairly small amount of drugs[crosstalk 00:10:20]
Trevor Burrus: Does that just mean that they’re over a weight limit?
John Pfaff: Right.
Trevor Burrus: Yeah.
John Pfaff: And, in some states that weight limit is fairly small, but in the end when you dig into what little data we have that really digs into the back story, not just [00:10:30] the official record, but asking, “What did you actually do?” Most people in prison, they’re not kingpins, they’re not moving giant tractor trailers of heroin, but its not a small amount in general. So if we legalize drugs, and so you start being able to buy your drugs at the corner drug dispensary, those drug dealing jobs are going to go away, but the people who are in prison for trafficking aren’t going to suddenly get legal jobs. Those jobs don’t exist, they are selling drugs now because they want to sell drugs, they’re selling drugs because they are systematically cut off from the primary labor market. [00:11:00] They are under-educated, they lack the social connections to get the jobs, and they are racially excluded from the jobs, and so if the drug market goes away, the people who are there for trafficking are going to have turn to something else illegal to get by. So, the drug offenses will go down, but the property offenses will go up. 
We’re actually seeing this in New York, where the New York Times had an article recently saying that street gangs in New York City are starting to shift away from drugs, and towards identity theft. Because the drug market economics are changing, and they’re trying to find that next new thing, and that next new thing is not coding at google. They don’t have that access to the education, or training to do that. [00:11:30] They are turning to other, ironically, sophisticated illegal activities.
Trevor Burrus: It seems that something, that fighting the drug war causes a bunch of things that might have corollary effects that wouldn’t be captured in the statistics. For example, higher police presence in urban neighborhoods who are mostly looking for drug crime, but in the course of looking for it have more interactions with the police, and put more people in prison for other things. So we see harassment of minority neighborhoods, and everyone [00:12:00] is not going in there for drugs necessarily, but you can catch them doing something. So that could cause, also, more incarceration.
John Pfaff: It’s true. Although the catch is that the drug markets, and one thing that complicates the prohibition causes violence argument, is that there’s evidence increasingly that a lot of it is that the drugs came to where the violence already was. There is evidence that, sort of worldwide, history wide, if you take a bunch of young men, and deny them upper mobility, and then the state doesn’t really enforce the laws against murder, [00:12:30] they will turn to violence amongst themselves. For one reason or the other, this is a point that Jill Leovy makes in her book, Ghettoside. So she looks at LA, that’s where she was a journalist, and she points out, look at south-central LA, young black men with no upper mobility, who are systematically cut off from the job market, and the clearance rate for murder, which is the rate at which the police arrest people for murder, the overall clearance rate for LA county is 60%. Shockingly, one third of all murders produce no arrests at all.
Trevor Burrus: That’s kind of amazing, because a lot of murders are pretty [00:13:00] easy to solve.
John Pfaff: Right. And so, once you take out the easy to solve, the actual clearance rate for complicated murders is vanishingly small. But for black men, the clearance rate is 30%.
Trevor Burrus: Wow.
John Pfaff: Two thirds of all black male murders do not result in an arrest. So the state is not enforcing its rules against violence, and there is no upper mobility, and so they turn to violence. In that environment drugs will come. There aren’t other things they can do, and so drug selling becomes appealing. So if you were to legalize drugs, but not solve these underlying structural problems, it’s not clear the murder rate would [00:13:30] drop that much. Don’t oversell that, there was a clear spike in murders from ‘84 to ‘91 tied to crack and the instability that market created. I don’t want to say it’s all just structural, and drugs plays no role, but it’s easily overstated, and that was true of prohibition too. That [inaudible 00:13:44] and murder rise during prohibition isn’t quite as clear-cut as we like to think it is.
Aaron Powell: Is that clearance rate, the 30% clearance rate for murders of black males, you say it’s the police not enforcing the murder laws …
John Pfaff: Right.
Aaron Powell: But, could it be, [00:14:00] you mentioned that there’s the easy to solve murders …
John Pfaff: Right.
Aaron Powell: And then there’s the difficult to solve murders, and there’s the wonderful essay, The Simple Art of Murder by Raymond Chandler, where he’s lambasting the British cozy murder mystery writers, like Agatha Christie, because he is like, those kinds of murders, where it’s some elaborate thing, are really easy to solve. You really just …
Trevor Burrus: You call everyone to dinner and …[crosstalk 00:14:20]
Aaron Powell: You call everyone to dinner and you poison the teacups or something.
Trevor Burrus: Exactly.
John Pfaff: [laughing]
Aaron Powell: But that the hard to solve murders, and the real murders, are the guy getting shot in the alley [00:14:30] at night when it’s raining, and so could that low clearance rate be that if this is drug related violence, it’s gang related violence, that simply the kinds of murders that occur in that community look more like the hard to solve ones than the easy to solve ones?
John Pfaff: I mean, that’s part of it, but there’s also a certain circularity here. That because the people don’t trust the police, because the police often times don’t do a good job, they’re less likely to come forward and talk. Right, because if you don’t get the guy, and you’re the one who talked, now you’ve exposed yourself to risk. So, part of it is that [00:15:00] yes, these are harder to solve murders, but they’re also harder to solve because the people don’t trust the police because the police aren’t trying to solve them as aggressively as they could in the first place. Part of Leovy’s book is looking though, she is an LA Time journalist, she’s embedded with these homicide bureaus, and her point is there are some cops who really work hard, and they do get their person for these tough cases. They will go back to the house ten times, and get it, but lots of times they close them out, some in more of an administrative way because they don’t see it as being worth the effort.
Trevor Burrus: You’ve discussed New York, and LA, and different jurisdictions, [00:15:30] which reminds me of a great observation you make early in the book, and you continually come back to it in different ways, and one way you describe it is that there are 3,144 stories of prison growth, of incarceration growth, why 3,144 stories?
John Pfaff: Right so, because there are 3,144 counties. Although, technically speaking, some states aggregate their offices out so it’s probably about 2,500 DA offices nationwide. The idea here is that we [00:16:00] tend to think about these prisons as these sort of state institutions. There is the New York state prison there the Tennessee prison there’s Florida’s prisons but no one just goes to prison. Someone has to decide to file the charge, and seek out the, either the conviction, or the plea bargain, and that person’s a prosecutor. They vary by county, and there’s huge variation within a state, across counties, in terms of how they behave.
Again so, you’re looking at my home state New York, New York has the longest sustained decarceration in the united states right now. We started [00:16:30] shrinking in 1999, since then we’ve shed about 25,000 prisoners from 80,000 to about 55,000. So one of the bigger success stories that we’ve seen. What’s interesting is that New York state didn’t really decarcerate, New York city did. Most other counties actually have more people in prison now than in 1999. New York city doesn’t, and we’re such a big enough portion of the state that we drove things down. But in most states that show decarceration, if you actually look at county by county, some go up some go down. Its showing urban counties that are going down, and rural counties that are going up, but it very [00:17:00] much is just local DA, who we rarely talk about, who has tremendous power. Who really determines who does to prison, who doesn’t.
Trevor Burrus: Which is also part of this problem of understanding that most prisoners aren’t federal, and then that all the different policies, in all these different states. We have Louisiana who is, I think, the highest incarceration rate in the country.
John Pfaff: Yes.
Trevor Burrus: In the highest incarcerated country.
John Pfaff: Exactly.
Trevor Burrus: And then I think maybe Maine is the lowest, or somewhere in the Northeast[crosstalk 00:17:25]
John Pfaff: One of those states, yeah.
Trevor Burrus: One of those, so it’s all very different. So solving the problem, [00:17:30] it’s not just a problem …
John Pfaff: No.
Trevor Burrus: It’s many different problems together, but one thing you mentioned is longer prison sentences too. That some of these local jurisdictions, some people say that longer prison sentences are what is causing this.
Aaron Powell: Is part of the story.
Trevor Burrus: Yes, like three strikes, obviously, is the biggest example.
John Pfaff: Right. And that …
Trevor Burrus: You say that’s not necessarily true.
John Pfaff: It’s not true, and that often times gets back to how varied the story is. That we are 50 states, and 3,000 counties, and every state has its own set of pathologies, right? So, [00:18:00] you read these articles about this giant increase of people serving life sentences, and it’s happened, but over a quarter of those sentences are just in California. So California imposed a lot of life with parole, option of parole sentences, most other states don’t, and something like 90% of all three strike sentences nationwide have been handed down in California. And juveniles getting LWOP, life without parole, something like half of all juveniles who got life without parole have lived in, like, 10 counties. So, each county has its own defects, they are very [00:18:30] spread, but the fact is that, yes our sentences are longer than European sentences, and if they were shorter we’d have fewer people in prison, but to explain the growth in prison, it’s not really clear sentences have gotten any longer. And they’re surprisingly shorter than what people think. I recently asked a bunch of undergrads at a really good liberal arts college, “How long do you think the median time spent in prison for someone convicted of violence is?” 
Trevor Burrus: Like assault, you mean?
John Pfaff: Yeah, aggravated assault, robbery.
Trevor Burrus: I would say maybe 2 and a half years.
John Pfaff: So you came in under. It’s actually 4, [00:19:00] but they were guessing 30, 40, like 20, 30 years.[crosstalk 00:19:04]
Trevor Burrus: Wow, I do work in the area but …
John Pfaff: Right, but I think they ask me though how long are they in prison? Oh, everyone’s in prison for 20, 30 years, and especially for drugs, right? Those are even longer, because that’s what you hear about. You hear about the Weldon Angeloses getting life without parole for their first time offense, but for property and drugs it’s 1 year, and for violence it’s 4. Those haven’t really changed all that much over the past 20 or 30 years. So again, if violence was 2, not 4, we’d have probably 25% fewer people in prison. It’s not trivial, [00:19:30] but it is much more being driven by admissions than by length of time. We’re just admitting a lot more people today than we did 30 or 40 years ago.
Aaron Powell: How much of this is difference between states is difference in the specifics of the criminal law in that state, versus prosecutorial discretion or culture?
John Pfaff: I think it’s more discretion or culture. That there are variations in law, but prosecutors spend their time doing the state level. It’s almost entirely [00:20:00] the stuff that every state agrees we punish. It’s all murder, aggravated assault, rape, larceny, theft. The over criminalization story, they were sending people to prison for, it was a federal crime to not clean up after your dog if he poops in the national park in Minnesota, all right? None of that really exists at the state level, there are the occasional cases, but they almost never get prosecuted, it’s mostly everyone agrees murder is a crime. They might differ about how much to punish it, how much to punish aggravated assault, but I think it is primarily driven by DA cultures, and not even across states, I think across [00:20:30] counties. I think, the DAs in New York city probably have more in common with the DAs of Austin, Texas than they do with the DAs in upstate New York.
Aaron Powell: Should this trouble us? I mean, if there’s any area that’s got a poor role of government, it’s protecting us from these kinds of crimes, and punishing the perpetrators of these kinds of crimes. That there’s that much discretion, that we’ve taken this [00:21:00] primary role of the state, and turned it over to what amounts to culture, or whim, of a handful of people …
Trevor Burrus: People that we knew in law school that I necessarily would not trust …
Aaron Powell: [laughing] Yes.
Trevor Burrus: Deciding these things.
John Pfaff: Yeah, it’s interesting actually. I find my students who want to be DAs are the ones, as they graduate, I almost would trust the most. Isn’t [inaudible 00:21:19] amongst my best students, but I worry about what office culture will do when they get there. I think you’re right, but I think it’s a little trickier than that. I think it’s a combination of [00:21:30] discretion with little oversight, and an incredibly skewed form of political control.
So I think there are 2 big problems with prosecutors. One is we have almost no metrics on what they do, maybe they do convictions per arrest is the number that I campaign on. We don’t have any good insight about what they’re doing, why they’re doing it, what drives it. So we’re going based off those 1 or 2 shocking cases, so that’s one big problem, if we really understood in detail what they’re doing, and paid attention, maybe discretion wouldn’t be so bad. 
The other problem is that we left DAs [00:22:00] at the county level. We seemed like this boring, bureaucratic issue, but I think it has huge implications for how they behave, because they’re elected by the county, but they tend to operate, at least in urban counties, tend to operate in the city. But the suburban voters tend to have disproportion of power, so you get this disconnect between cost, and benefit. The prosecutors responding to the suburbs, enforcing law in the city, the suburbanites feel the benefits of reduced crime. Their commute feels safer, they feel happier getting things at lunch when they go in to see a show on Friday night, they don’t feel scared. But it’s not their brother, not their uncle, not their son, [00:22:30] not their nephews going to prison. Unnecessarily being charged, unnecessarily being hassled unnecessarily, and so it encourages the DAs, and to a less extent the police to respond to the gentrified parts of the city rather than the higher crime parts of the city. It incentivizes on the focus much more of reducing crime, and ignoring the costs of that enforcement. 
It certainly comes to urban, suburban splits. That’s where race begins to play an incredibly toxic role. So you have these white, wealthier suburbs, who choose the prosecutor, who then gets to enforce law in poor, more minority parts of the city. I think that racial [00:23:00] gap creates an even broader empathy gap that leads to some really serious problems.
Aaron Powell: Yeah, this fits with this, there’s been this broader narrative recently that seems to dovetail with nicely, which I just the recent elections in France. The results of that, that those areas of the country where there were actually terrorist attacks overwhelmingly voted against the nationalist person who wanted to shut down immigration. You get similar stuff in the US, and on those same lines, [00:23:30] the areas of the country that are most friendly to immigrants are those spots that actually have a lot of immigrants.
John Pfaff: Right. 
Aaron Powell: And, it’s like, the white rural areas that haven’t spent a lot of time around them. So, there’s this power of enabling people who have no experience with something, and are therefore acutely, and sometimes irrationally, terrified of it to control how it’s going to be enforced against others seems like a problem.
John Pfaff: Right, I think that’s exactly right. I think it’s where I see my federal law in particular so psychotic, right? You don’t see [00:24:00] 80 years for drugs in the state systems. Those laws just don’t exist, unless you are literally bringing in a container ship full of cocaine, maybe. But otherwise, you don’t get these, Weldon Angelos cannot happen in the state system by and large. I think it’s because nowhere is the person with no contact with criminal justice more over represented than the US senate. In Albany, half of all assembly people in our lower house come from New York city. So the legislature’s already tilted towards those areas where crime tends to be. In congress, you have [00:24:30] … Wyoming has just as many senators as New York state does, and so half the population, which has half the crime, is all in 10 states. That’s 20 senators. The other half of crime has 80 senators, and I think they are, this is the exact problem for them, is a symbolic thing that they don’t let any connection to the cost of it, and so they pass these insanely harsh laws because they don’t really ever have any contact with those who’ve really been impacted by them.
Trevor Burrus: Another thing that you address head-on, which I get asked about a lot when I go speak, and just in hanging out [00:25:00] with people, is private prisons. This seemed to be taken up, part of the anti-corporate, almost anti-citizens united, corporate power thing, but it’s been discussed a lot, and it does seem pretty monstrous to have people making money off of incarcerating people, and so you can sell that. Do private prisons, and their lobbying efforts, have they contributed a bunch to the incarceration rate?
John Pfaff: So here’s the thing, the total number of people in private prisons is [00:25:30] 8%. 92% I state facilities, 8% in private facilities, there is no evidence that states that have private prisons saw any greater growth than states that did not have private prisons. I think I said that right, right? There no difference between states whether you have them or you don’t have them. There’s really no indication they really matter all that much, and you’re right, it’s kind of disgusting to think about people profiting off of locking someone up in a cage, but here’s the catch: private prisons made $400,000,000 in profits the other year. The 2 major groups, [00:26:00] it was CCA, now it’s something else.
Trevor Burrus: It’s called something else[crosstalk 00:26:04] I forget what it’s called now.
John Pfaff: They just changed last, like a month ago, N Geo Group. We spend $50,000,000,000 a year on corrections. Half of that is wages, so while the private prisons made $400,000,000, the correctional unions made $25,000,000,000 right? That’s profiting off of people being in prison, and every pathology that exists in private prisons exists in the public sector, just at a bigger scale. So, looking back to New [00:26:30] York state, people can live at private prisons, they have these minimum capacity terms. You must maintain this prison at at least 80% capacity, or if not you have to pay us, as if 80% of our beds are full. People call it the low-crime tax. Sounds terrible, it is terrible.
New York state has dropped 25,000 prisoners, and over that time now spends more on corrections than before, but New York state has no private prisons, but the correctional guard union keeps all these half-empty prisons open. Scattered across upstate New York to keep the jobs, [00:27:00] and to keep the wages. That is exactly the same as the minimum capacity contract in a private prison. This public prison is half-empty, but fully staffed. It is as if they’re getting paid to have those beds being taken up. Okay, so people say, “Well privates do these things.” I say, “Well publics do the exact same thing.” It’s not about profit, it’s about incentives. 
So the classic private prison horror story is this, and it sounds terrible, you pay a prison per prisoner, per day, and so the prison cuts back on training, on staffing, on everything they can, on food quality they try to get some sort of margin on each [00:27:30] prisoner. Then they take those margins, and they pull them out of the prison, and they use it for their own private ends. Then they campaigned hard to maintain prisoner count. Then fight reform because every body in their prison is cash. In fact, having bad training, and rehabilitation works in their favor because everyone who comes back is more cash, right? 
I agree, this is horrible, but I’ve just described is the entirely public contract system in Louisiana. The state, facing capacity constraints, entered in a contract with local, public sheriffs to house [00:28:00] state inmates in public jails, and the sheriffs to this exactly as I said. They undercut spending, they took that money to spend it on their own department outside the prison, it is the classic private prison horror story. But when it started, it was entirely public, now the privates came in later to help them build out the jails, and start these collateral groups that latched on, but the failure was entirely public. Entirely about incentives, and so you could create private prisons with different incentive contracts, maybe they work better, right? 
So, Australia is actually trying this, they have created a prison in Australia, run by Sodexo, where [00:28:30] the payment is tied to recidivism not to capacity. So, if these people don’t come back, you start getting paid more. Pennsylvania just did it with their halfway houses, they terminated all their contracts, now they have a recidivism incentive compliance term in their contracts. So I think we focus on the wrong things, they’re not that big, the public sector unions are far more powerful, get far more money, have all the same problems, and really it’s about incentives. If we gave privates better incentives they would act better, and if we give publics terrible incentives they’ll act just like the privates.
Trevor Burrus: They’ll be focusing [00:29:00] more on the inputs about why there are so many people going through the criminal justice system to end up in one of these entities seems wise. You mentioned recidivism, which you discuss in the book as part of the standard story. Parole violations, parole issues.
John Pfaff: Right.
Trevor Burrus: What is the chance that someone ends up back in prison and then also, in the more interesting wrinkle here, is why is that question more complicated than it seems?
John Pfaff: Yeah, so the question actually [00:29:30] has two answers to it. One is 50%, and one in 33%. So the way the BJS counts things is you look at a cohort that leaves prison in 1 year, then you ask, what’s the chance over the next 5 years someone ends up back in prison. It’s about one half. That’s a useful number, a half of all those leaving end up back in prison. But I think when someone asks you, “What is the chance of going back to prison?” The question they are asking isn’t, “What is the chance of someone released from prison in 2010 goes back [00:30:00] to prison?” They are trying to ask if you’ve ever been admitted to prison, what is the chance you’re going to go back? And that is about one third. And what that gap reflects is that there are certain people who cycle through several times. 
So out of any given cohort, half are going to go back, but in some of those cohort it the same guy going back, and so if you take those guys out and don’t double count them. If you’ve ever been to prison there is about a one third chance you’ll end up back in prison. Not one half. That said, most of those people who cycle through only go through twice. It’s at least over a [00:30:30] 14 year period, which is the data range that we have. So this idea that there are these people that just revolve around over and over and over again, that doesn’t really seem to be true, most people go once. Most people who go back are only going to go back twice, at least in the 14 year period.
Aaron Powell: So then, is there any truth to this conception that by sending people to prison for, say, smaller level crimes where we are training them to become more criminal than they would have been otherwise, because they are spending 4 years call it, in an environment [00:31:00] which a whole bunch of other people who are criminal?
John Pfaff: No, there is definitely true to that. In fact, there is a really fascinating recent paper that managed to show that actually the longer you send someone to prison, the more likely they are to recidivate upon release. And controlled in a very clever, and very trustworthy method. It is a very tricky question, statistically but he did a good job addressing that. Which suggests that you get worse the longer you are in prison, right? So it becomes an arms race, you’re not committing crimes while you are out, but when you are in you commit more. What is the trade off going to be? But you realize a [00:31:30] prison is the rarest way we punish you. There are about 1.5 million people in prison, there are about 6 or 7 million people on probation and parole. There is another 750,000 in jail with 12,000,000 cycling through every year. And those are just people we catch. 
The tricky part about recidivism is we view our recidivism data as, these are only people who commit another crime. Well, no. These are people who perhaps commit another crime and get caught, [00:32:00] and we choose to file charges, and we choose to move the case forward. All right, so it is a very skewed perception. In certain populations more heavily policed we’re going to pick up more recidivism there than at other population that are less policed, but might actually be offending at similar rates. So it is one of those term to we think is very objective, recidivism rate it’s a number, but actually when you dig down it is really messy number to use. 
And states vary about what counts as recidivism. If I punch someone, I’m going back to prison, if I don’t have a job I’m going back to prison, perhaps if I drink alcohol, [00:32:30] which is not a crime if you’re not on parole but might be a crime that you are on parole. So are exactly what are we counting when we count this, and it varies from county to county, parole officer to parole officer. So I think there certainly is a crime causing impact to prison, but it might not always show up in terms of another prison admission, it can show up in a probation or in jail or some other way of dealing with it.
Trevor Burrus: It seems if you are in prison for longer, if that was maybe the crime was more violent, you have more difficulties outside of prison. And you talk a lot [00:33:00] about how prison has a lot of costs to … Obvious costs to the person. We want violent people to be punished and kept away for some period, but their lifetime earnings, their ability to get a job, the single parent families, all these issues in terms of these costs, and that gets to a really fascinating question that you take head on, and I really appreciated that you did, which is what is the optimal crime rate, and why is that an important [00:33:30] question to ask?
John Pfaff: Right, and I would start by saying I try, it’s very hard to do this. In fact, writing my book the word kept creeping in, every time another round of edits it would sneak in, is to never use the word violent person or a violent offender. Because violence isn’t, a sort of makes it sound like this is who they are, they are a violent person, but violence is very much a phase not a state.
People age into and age out of violence, and I think we are becoming more aware of the aging in, I think that the juvenile death penalty cases, and a juvenile life without parole cases, we realized, “Hey, 14, [00:34:00] 15, 16 year olds, they are changing” Right, and unfortunately they are underdeveloped but also getting more violent, and so around 14, 15 new start aging into violence, but the part we tend to ignore, or pay less attention to, is that when you hit 30 or 40 you start aging out of violence. If not sooner.
Some of it is hormonal, and violence and testosterone are very highly correlated so as your testosterone levels drop other hormonal shifts. Some of it who is just physiological, right like, I’m 41, I’m just less likely to get into a fight now than when I was 20. Just because I’m going to lose, I am slower things ache more, I’m just kind of tired and [00:34:30] lazy. It’s not really worth it at this point. 
Some of it, though, is also social. You have a job, so you’re not hanging out with your friends doing something dumb. You have a wife, or a husband, and you have a child, and you have a sense like, I just shouldn’t do this. Or again, you’re with them and not with your friends, in prison it certainly impacts those. Prison might not change your hormonal drift, but it makes it harder to get a job, makes it harder to get married, and that actually makes it harder to desist from crimes. I think we do systematically under count the cost of incarceration. [00:35:00] Whenever we do a cost benefit, it saves this much in crime, and we spend this much in dollars per prisoner. That’s the tip of the iceberg, so going to prison hurts your lifetime earnings. You work fewer hours, you get paid less per hour that you work. A lot of people in prison already had a hard time getting primary jobs, but now they really can’t. We do incredibly stupid things to make the problem worse. So until 2008, when New york state fixed this, but is still a problem in other states, the single biggest training program in New York state prisons was barber school. Until they passed [00:35:30] along 2008, one of the things the barber licensing agency did, was category deny license to anyone with a record.
Trevor Burrus: Oh great.
John Pfaff: Right. So we trained all these men to be barbers, and as soon as they leave they can’t get a job as a legal barber. Maybe they work illegally, but now they’re exposing themselves to some sort of administrative, if not criminal penalty. New York state fixed it, sort of, you can’t have a blanket rule for certain professions against people with felony records, but it exists in lots of other states. Similar kinds of bans. So we make it even harder, beyond what it already is. 
It’s a great factor for tuberculosis, [00:36:00] and HIV, and other STDs. It leads to an increase in drug overdose deaths upon release, in prison drugs are expensive and low quality, you get released, drugs are cheaper and higher quality. Your tolerance is down, because you haven’t really been treated effectively, and you overdose. But we don’t tie that to prisons, so someone dies, an ex-con dies in an alley, right? That’s not prisons, that’s just him, but it’s not. It’s prisons. 
In some, dating markets really need 50% male, 50% female to really function well, and in some heavily policed neighborhoods it’s [00:36:30] 60% female, 40% male. That really throws off family formation, increasing the risk of single parenthood, increases again the risk of STD transmission because men are in short supply, they can leverage that to not have safe sex if they don’t want to. 
Not to mention just the shame and the stigma, there’s financial costs of just travel. In New York state, half of our maximum security prisons are at least 200, if not 300 miles away from New York city. Even though, half of all the people in them come from New York city. So [00:37:00] you’ve got the hotel costs, the bus costs, the time off from job costs, the taking your kid out of school costs, collect phone calls can be almost bankrupting to poor people. You take all these costs, they’re staggering and we just don’t count them.
Trevor Burrus: So that’s the question, if you have the costs and then you’re wondering about the optimal crime rate.
John Pfaff: Right.
Trevor Burrus: The question of, you’re biting the bullet on violent crime as something you have to address to [00:37:30] fix this prison problem.
John Pfaff: Right.
Trevor Burrus: But also the idea that we talk about how, can we fix mass incarceration without letting crime go up whatsoever? Because of all these costs of prison, because of this use. That’s probably the wrong way to look at this …
John Pfaff: Right.
Trevor Burrus: In some way, ‘cause prison is very harmful in so many different ways, so it might be the optimal crime rate is higher than it is now because of all the costs that we’re imposing on society for prison.
John Pfaff: Right. It’s possible, we’ve studied collateral costs so poorly, [00:38:00] that we don’t really know. You don’t want to trivialize the attitudes of those that live in high-crime neighborhoods. James Forman just came out with a book called Locking Up Our Own about how, often times, African Americans are amongst those who are toughest on crime because it was their communities that are most devastated by it, and there is a very strong law and order view in high-crime neighborhoods, for very understandable reasons. You don’t want to come out and say, “Oh no, you people don’t worry about crime, there are other things to worry about.” 
What I think it pushes me towards is a much greater degree of localism. Instead of letting the suburbs, in their abstract, [00:38:30] decide what’s best for the city, push that decision making toward the cities. It could be we’ll find that in certain times of rising crime, we actually end up with a more punitive system that way. There’s actually a sense during the 60’s that we didn’t react to rising crime in the 60’s that quickly, because the white suburbs just didn’t care. Oh, Detroit’s on fire? Not my problem, thought the rest of Wayne county. Then when the race riots happened, and so did the social unrest and civil rights, then Wayne county cared too much about what was going on in Detroit, then they cracked down the other direction.
So could be that during times of rising crime localism might actually leave more punishment, [00:39:00] and to me that’s kind of okay. As long as those who feel the costs and the benefits are making the calls, maybe that’s the best we can do. What bothers me, is when those who feel the benefits don’t feel the cost and then, “Hey, yeah, let’s crack down.” Well of course you’re going to crack down, it’s not your family that’s being torn apart by this. If you’re the one that feels the harm of crime, and the harm of punishment I’m more willing to defer to their choices. Whichever way it happens to go.
Aaron Powell: What do we say to, I mean, this country seems to have a rather punitive [00:39:30] culture.
John Pfaff: Yes.
Aaron Powell: We’re in a very old testament sort of place. So, to the person who, the extreme cultural conservative caricature almost that would say, “Well, so what?” These are bad people, they did bad things, they didn’t have to do those things, they knew that they were bad, they knew there’d be punishment. So if you’ve served your time, but the other stuff are just costs of being a bad person, suck it up, and the rest of us, those aren’t costs that we should factor into [00:40:00] the administration of justice.
John Pfaff: Yeah, my responses would be several. One is that I think that dramatically overstates the extent to which committing a crime is just a purely rational choice. There’s all these structural and emotional pressures, there’s all this evidence showing that people operating under extreme poverty … We all have limited mental capacity, and so if you’re incredibly struggling, really hard as to how you’re going to make it to tomorrow? Your ability to start to control your anger goes down. For all of us. So, imagine you say, [00:40:30] “Oh, I never would have done that.” Yeah, ‘cause I don’t worry about eating tomorrow. So it’s very easy to sit there and say, “I would never choose to get in that fight, what was he thinking, he chose that.” Well, if I was actually really unsure of if I was going to have enough to eat or make rent tomorrow, or if my kid was getting kicked out of school, and all these pressures, I’d actually have a shorter temper. So I think we tend to overstate how much this is within our control.
I’d also state that on the one end, maybe, all right fine if that’s what you believe that that’s what they deserve, I can’t prove you wrong right? In my book I focus on the public safety. That’s where [00:41:00] you can really make a policy argument, but I would push back and say, “Maybe we should actually care what the victims think.” Maybe it’s not about you. Because you’re not the victim, you’re second order of harm, you feel the harm of someone else, but let’s ask those who are actually victimized what they think.
The most comprehensive victim surveys I’ve seen indicates that victims tend to be less punitive than society as a whole, and they ten to be less punitive because your average victim isn’t what you see on law and order, like the suburban white lady. It’s [00:41:30] generally a younger black man, person of color, and male who lives in this environment and understands very much what is going in and why it’s happening, and they’re not indifferent. They want to see justice done, but their view of justice is something much more along shore of the restorative justice framework. They don’t want to just lock him up forever, it’s just a much more sophisticated view.
So yes, you, suburbanite, hold that punitive view. You’re sitting there saying [00:42:00] let’s talk to the victims, we generally like to pick on the victims that want to nail him to the wall. Those are the victims that always get attention, and I thought it very telling that in this whole controversy over Arkansas and the death penalty that a session refused to meet with family members of victims who didn’t wan to see executions happen. He was more happy to talk to those that said yes, execute him, but those who came forward and said, “No, this won’t make me better, this is what makes the world worse.” Wouldn’t even meet with them, and so I think we tend to focus on the victims we want to focus on, [00:42:30] but actual victims when you take a broad survey, they’re substantially less punitive than our laws would suggest.
Trevor Burrus: I’d like to go back to the prosecutor’s …
John Pfaff: Yes.
Trevor Burrus: Angle, because that is this thing that you kind of discovered, that no one was discussing. I always have wondered what’s, knowing friends that are prosecutors, none of them are sadists or anything, but I encounter cases and wonder if these prosecutors are just … Why do they even charge this guy with this absurd crime? 
John Pfaff: Right.
Trevor Burrus: [00:43:00] We had this case about a fish, for example, at the supreme court …
John Pfaff: Yes.
Trevor Burrus: Wondering how they charged a man with a felony for throwing a fish overboard.
John Pfaff: Right.
Trevor Burrus: So you identify the prosecutor as the black box of this whole story, and you wrote in the book that when you compared these things all together, and you saw this one thing making a huge difference in the incarceration rate you just stare at your computer and said … What is that main factor that you found?
John Pfaff: Right, so I used data [00:43:30] from 1994 to 2008, which was imposed on me by the way the data were gathered. The place that gave me the data, they changed how they gathered it, starting in ‘94, so I just couldn’t go back. I realized it was actually a useful timeframe. It is basically during this period when crime went down steadily, but prison populations kept going up. As far as I’m concerned the causal mechanism there might be a very different story than the causal mechanism that was taking place when crime was going up and prisons going up[crosstalk 00:43:55]
Trevor Burrus: Is the first hundred thousand prisoners, who are the really violent ones [00:44:00] you might get safety returns on, but we might’ve stopped getting safety returns on incarcerated people.
John Pfaff: That’s the conventional take, that with crime low, and prisons high, we must be locking up increasingly marginal people, and that’s probably true to some degree. But we arrest 12 million people a year, and we admit about 600,000 people to prison every year, and we don’t know how DAs choose the cases they choose to go after right? We like to think they triage based on severity, but I would imagine they also triage based on provability. 
Murder cases are very hard to prove, there’s actually a [00:44:30] pretty shocking example of this. Where a couple years ago, on of the previous Baltimore state’s attorneys, the head elected official, managed to convince the head of the homicide unit of the police department that he could not issue an arrest warrant without an ADA signing off on it first. The number of murderer arrests, in Baltimore fell by half that year. Not because murders went down, but because the DA’s office stopped signing arrest warrants. This case looks tough, not sure we can do it, not going to sign the warrant. We make the cops eat the failed clearance rather than the cops to make the [00:45:00] arrests, having the DA’s office have to take the tough to prove case. 
So that, to me, suggests that DA’s are focused on lots of different things. One of which is certainly public safety and severity, but also focusing on provability, and we arrest so many people that even as crime goes down there’s probably still a lot of fairly legitimate cases to go after. 1% of all serious property arrests result in an admission, and only about one third of all serious violent crime, reported violent crimes result in a prison admission. So there’s a lot of cases out there to go after, even today.
Trevor Burrus: So what did you see when you [00:45:30] looked at the[crosstalk 00:45:31]
John Pfaff: Right, so I thought crim is going down, and arrests are going down. So there are fewer people entering the criminal justice system altogether, but the number of cases filed, and state felony cases filed in the state court went up dramatically. Once the charge is filed against you, the chance that felony case resulted in a prison admission didn’t change, and the amount of time you spent in prison didn’t change.
So the only thing that changed was: what’s the chance that this arrest turns into a felony case? It’s entirely in the discretion of the prosecutor. So for some reason, and we don’t really know why, [00:46:00] the prosecutor institution became more punitive.
What I’ve, and I can’t really, I don’t think I stressed it that much in the book, I mentioned it but I’ve come to think that this might really be the main explanation, I’m not convinced that individual assistant district attorneys are any tougher today than they were 30 years ago. Which is a very good interesting hiring pattern that happened, from 1974 to 1990, as crime was going way up, we hired 3,000 more prosecutors. From 17,000 to 20,000. From 1990 [00:46:30] to 2008, as crime dropped precipitously, violent crime dropped by 25%, property crime dropped by 25%, arrests are down. Everything is going down. We hired 10,000 more prosecutors, from 20,000 to 30,000.
We don’t have good measures of how productive DAs are being, but all the various proxies I can think of like how many serious arrests per DA, how many total arrests per DA, how many people admitted to prison per DA. There’s no evidence between 1990 and 2000, they became any tougher. We just had more of them, [00:47:00] and they had to do something.
Trevor Burrus: Yeah, it seems like, if you’re one of these 10,000 extra DAs with less crime, but you have a performance review and you have some sort of deliverable … Ideally you would say, well I didn’t do anything this year, boss, because[crosstalk 00:47:16]
Aaron Powell: Because the crime rate went down.
Trevor Burrus: Crime went down, so this is a good thing, but why would you even keep them on staff? So they’d be trying to come up with some sort of metric of what they’re doing, and that would be charging people with crimes.
John Pfaff: And we arrest enough that there’s plenty of them to do that, and so that was [00:47:30] an urban phenomenon. On the more rural, suburban phenomenon we see, the rural offices tend to be small, maybe 2 to 3 DAs per office. What happens in between 1970 and 2008, the number of counties with a full time DA, an elected DA, not some part timer who has a private practice on the side, the number of counties with full time goes from 45% to 85%. That’s obviously a rural phenomenon. Brooklyn didn’t decide in 1994, “Hey, guess it’s time to get a full time DA.” We’ve had one for a good 120 years, 130 years.
So the urban [00:48:00] counties ramp up staffing, and the rural counties create professional offices. I think it’s just that change in structure of more people, and more professional people who need to justify their positions. I think that played a huge role in this change, and I think presents certainly the suburban, rural area a significant barrier to change. You can imagine cutting back on funding for major urban DA offices trying to shrink their staffing, and perhaps shrink their impact. There is a one-way ratchet there, but de-professionalizing [00:48:30] a DA’s office is going to be a much harder thing to go from the full time, to firing that person, to creating it to being a part time, but a lot of resistance there.
I think it’s telling that the prison drops since 2010. So, prison rises from 1972 to 2010 without any, in a single year where the total prison population goes down. Then from 2010 to 2015, it’s dropped by about 5%. Half of that just the state of California, and then 24 other states have shrunk, 25 states have gone up, but you’ve seen a drop. Most of that drop is urban counties. [00:49:00] Counties of over 250,000 people are seeing a decline, counties with under 250,000 are still going up and up. So I think that ones that staffed up in the more liberal cities are shrinking. The ones that professionalized in the more conservative rural areas are actually getting tougher than before.
Trevor Burrus: Were you able to get any data about the kind of performance reviews that maybe exist for DAs, or it seems like it might just flow downhill, so you have DA and you have assistant to District Attorneys. So the DA, what do you expect from them? [00:49:30] That might be determined by the DA’s political ambitions. Does that seem like possibly a controlling … He want to be Governor, you never say, “I did justice, I didn’t put that many people in jail.” You always say, “I saved your communities, I put all these people in jail, elect me Governor.” So maybe it just flows dow to the ADA’s from there.
John Pfaff: It’s possible. So, from an empirical point of view, the question for prosecutors, do you have data on …? I can generally stop you right there.
Trevor Burrus: Okay.
John Pfaff: What comes next is irrelevant, the answer’s going to [00:50:00] be no. No, I just don’t have it. But the political ambition theory is certainly one I’ve been thinking about. Maybe that explains things that go on in rural areas more.
Trevor Burrus: Right.
John Pfaff: Because it’s less clear to me. I remain generally unclear how important the person at the top is for bigger offices, because it’s gotta flow through all these levels of bureaucracy.
I think one way to think about it is very striking is that, in 2016 at the same time they had Donald Trump winning election based on American [00:50:30] carnage, you at the same time saw a lot of cities elect reform oriented prosecutors, and vote out tough-on-crime prosecutors. One of them is Kim Ogg in Houston, and the first thing she did, the day after her election, she announced that upon actually being put into the office that day she was going to fire the top 50 lawyers in the office. She’s going to completely decapitate the entire office. Her argument was, “Look, I have staff of 120 lawyers, I alone cannot oversee their day-to-day actions, it has to go through these 50 people who run things. [00:51:00] And individually they’re all great lawyers, but collectively they’ve created this incredibly punitive culture. If I want to change the culture, you gotta chop off the entire management team.” 
Chicago saw a reformer get elected, Kim Foxx, she for reasons couldn’t do that, or didn’t or couldn’t. I’m not really sure which, but the old staff that was very punitive under her predecessor remains in place and I’d be very interested to see how do things differ in Chicago and Houston. In part, based on however great the DA is, if the bureaucracy below her [00:51:30] resists I think that could be a serious challenge.
Trevor Burrus: You also point to defense attorneys, and I have friends who are defense attorneys, public defenders, or otherwise contractual. In the growth of crimes and charging people you have a constitutional right to an attorney that you get to talk to for 25 seconds, possibly and it’s kind of unfair, it’s a pretty lopsided game in terms of the prosecutors [00:52:00] versus the public defenders, correct?
John Pfaff: Yeah. So here’s how terrible the situation is. To start with, 80% of people facing prison or jail time qualify for a state provide lawyer, so it’s a massive responsibility that we have. In pure dollar terms, these numbers are from 2008, which is the last year we have data, show you how stale our numbers are so I’m dealing with numbers almost 10 years old at this point, that’s our most recent data. We spent about $6 billion a year on prosecutors, we spent about $4.5 billion dollars [00:52:30] a year on public defenders. 
First of all, that’s a disparity to start with. Second of all, realize we spend about $200 billion a year on criminal justice. 4.5 billion on the lawyers, for the defense, 200 billion overall. So, we are already underspending relatively. But that is just misalignment, but it’s worse, there’s a study in North Carolina that’s started from the premise that, budget wise, the DA and the Public defender’s office got paid the same, they had the same budgets. That actually annoyed the DAs. The DAs said we handle 100% of criminal cases, and in North Carolina the public defender handled 50% of the defenses. [00:53:00] So the DA said we’re under paid. What North Carolina’s office of defense showed is that the DAs don’t pay for investigators, they call the police, and the sheriffs. They don’t pay for DNA labs, they don’t pay for any sort of investigatory services. Public defenders have to pay for all of them. Once you add in all the free services DAs get, their budget is triple that of public defenders. 
So there’s this huge misalignment, and then it gets worse from there. The supreme courts said everyone gets [00:53:30] a lawyer, they never said how you have to pay for it. Supreme court only hands down unfunded mandates. Some states pay for it, but in South Dakota, you get charged $90 an hour for your public defender. Nine zero. You’re classified as poor, you’re getting charged $90 an hour for your public defender. That money is due regardless of the outcome of the case. So if you are acquitted because your public defender finds out that you weren’t in that bank that got robbed, you were outside the state, it could not have been you. You still owe $9,000 if it takes them [00:54:00] 10, no 100 hours to do this case. If you don’t pay your public defender, that’s a crime. 
Trevor Burrus: Wow.
Aaron Powell: But, on the difference in how much money they each have to spend, could we explain that away by saying the prosecutors have got a much higher burden of proof? They’ve got the harder job to do, they need more resources because they’ve got to get beyond a reasonable doubt. Whereas the public defender, gets to some [00:54:30] extent …
Trevor Burrus: Play goalie.
Aaron Powell: Play goalie, gets to sit back and wait for them to get anywhere near that.
Trevor Burrus: But that’s assuming a trial, right?
John Pfaff: That’s assuming a trial, and 95% of all cases result in a plea bargain. One reason they all result in a plea bargain is because public defenders don’t have time to really go through the case. There is Amy Bach wrote this book called Ordinary Injustice, and she is now working, gathering metrics for DAs, but she was a journalist, she went around the country looking at how the system worked. 
She went to this one courtroom in Georgia, where it had a full time DA, a part-time public defender. One guy ran the whole public defender’s office, on a contract that hadn’t had his pay [00:55:00] increased in 15 years, and he got it by being the lowest bidder for the job. He would literally plead out, 30 people in a morning session, they would stand, go down the line, plead them all out. Then Amy, who’s been to law school was talking to him and going through his files, and she is like, mitigating evidence, mitigating evidence, exculpatory evidence, this could have had him acquitted, this could have had the charges dropped, this could have gotten charges knocked down, but he was just grinding through these cases so much that he just never had time to really stop and look. If he wanted an investigator, he had to pay for it out of his own budget, while with the DA the city [00:55:30] paid for police departments. 
So it’s still incredibly skewed, and results in public defenders just not having time to go through files and really see what’s going on.
Trevor Burrus: So this is all fairly depressing and …
John Pfaff: Yes. 
Trevor Burrus: And the fact that you also blow up the problem into 3,144 different problems.
John Pfaff: Right.
Trevor Burrus: And we’re here in Washington DC, and very little we could do to fix different counties, but what can we do? We have very bad political headwinds, [00:56:00] you talk about the false positive problem, and how much political consequences there are to not locking up a criminal versus locking up an innocent man. So, although better to let 10 guilty men go free than to lock up 1 innocent, politically it’s exactly the opposite.
John Pfaff: Right.
Trevor Burrus: If you did not lock up a guilty man that commits a crime, you’re done.
John Pfaff: Right.
Trevor Burrus: So we have all these political headwinds, we have 3,144 jurisdictions, we have prosecutors [00:56:30] running amok, we have laws at different levels, we have behaviors … What can we possibly do? I know you go through a bunch of them, but what do you think are the most promising reform?
John Pfaff: So, at the same time that we have all these headwinds, at least for prisons at the state level, and the county level, precedent reform seems to be one of the few genuinely bipartisan issues we have. All right, i have been at events where, and this is not a euphemism, you will literally see the head of criminal justice for the Coke brothers sitting [00:57:00] next to the head of the ACLU’s decarceration project. A lot of my liberal fans think the Cokes are trying to smuggle something in to gut the EPA, right? I’m sure they wouldn’t mind getting rid of the EPA, but their criminal justice focus is genuine. They’re one of the only groups that have actually given money to public defenders, not a lot, not nearly enough to solve the problem, but that’s not political scheming. That’s a genuine interest in trying to fix the system. 
So I think at the local and state level, there is actually room to move, it’s this very [00:57:30] fascinating arrangement. You have the standard liberal anti-punishment types, and there are the racial justice sensitives the incredibly racially biased that has a powerfully disparate impact. They have been campaigning for a long time. 
On the right, what’s come in are these two, we tend to view as mostly the Grover Norquist, “We spend too much, let’s cut costs group.” Right? That’s a big part of it, but it’s also an equally powerful Chuck Colson evangelical Christian, second chance side to it, also right? That people are becoming to believe in redemption, [00:58:00] and conservatives who have been to prison, like Chuck Colson and Bernie[inaudible 00:58:06], came to realize that these people aren’t these irredeemable monsters that we paint them out to be in the press. They are no different than you and me, and they are no less open to the possibility of turning your lives around. 
To me that’s actually a much more durable side of the right on crime than the more tax-cutting. Because the tax-cutting side could easily fold as soon as crime rates start going up again, right? Well, then the cost to benefits shift, and maybe we should spend this money here. But, the evangelical side [00:58:30] that believes in redemption should be a little bit more, I would hope, resistant to just crumbling that quickly. So I think there are things we can do. I think, and things we’ve seen happen. 
I think one thing is guidelines for prosecutors. All right, they have unfettered discretion, but they’re the only people who have that kind of discretion. Why not impose, actual tools and other guidelines to regulate how they charge, who they charge, how they plead them out. New Jersey does this for some drug cases, it’s not impossible. 
I mentioned earlier the fact that prisons are paid for by the state, that’s a huge problem, because you’re a prosecutor. You’re paid for by the county, [00:59:00] so if you send someone to jail, or probation, the lesser offenses, that comes out of the county budget; your budget. Send them to prison, that comes out of the state budget, so it’s safer, it’s tougher, and it’s cheaper. Right, the tougher penalty is actually cheaper for the local officials, and so maybe make them pay for it. 
California has kind of done this with their realignment program, where they said for certain categories of offenses, even if it’s a felony, even if it qualifies for state prison time, you the county have to lock them up in your county jail. You pay for it, we’re not paying for this anymore. In practice, it’s a bit more complicated, [00:59:30] but that’s the underlying logic, right? Again, California did this, these things can be done. Indiana tried it in a smaller scale, with a little bit less success.
So I think, personally, prosecutors need guidelines for focusing on the politics of it. Things like sentencing commissions, there are way you can try to insulate the process from political headwinds. Or maybe moving these to more local levels. Don’t make the DA be elected by Cook county, Chicago elects a DA and the suburbs elect a DA. Detroit elects a DA, [01:00:00] and the rest of Wayne county elects a DA. Maybe that can break some of this, I feel the benefit but not the cost of being tough. The catch is, is that I think it’s required thinking big and aiming high, right? 
The smaller fixes? They will do good, but they’re only going to get us so far. There is a risk lingering there too, there’s actually very depressing maybe frightening, but probably more depressing, pull that Fox did Fox.com, where they asked people several questions. The first one was, [01:00:30] “What percent of people do you think are in prison for drugs?” And everybody said half. Not surprising, but that’s solvable. What was kind of scary is the next question, and they broke it up by liberal, moderate, conservative. The question was, “Are you willing to take someone who’s been convicted of violence, but poses little risk if violating again, are you willing to punish that person less?” And 55% of liberals to 65% of conservatives said, “No.” Right, but those are the cases you’re going to have to cut at some point, and I think what’s happened is this constant rhetoric [01:01:00] of low level nonviolent, we’ve convinced the Americans that our prisons are full of low level nonviolent offenders, and we can get out of this mess focusing on them. 
I will be the first to admit, that’s where reform had to start. You don’t go from 40 years of sustained prison growth, and then the next day pass a let’s be lenient to murderers act. That’s not going to happen, right, you start with drugs. That’s the obvious place you start, but at some point you’ve got to start shifting that story, and it’s not just when it’s convenient we’ll do it. Right, the Americans have come to believe that you don’t have to have this [01:01:30] conversation. They’re unwilling to have this conversation, and cracks are starting to happen. 
You see this issue, like letting people serve long terms bonds out early is now in Louisiana, are [inaudible 01:01:43] in the country this debate issue. DAs hate it, they’re fear mongering like crazy, but they’re at least talking about it. I came across an opinion by Richard Posner the other day where the blue had nothing to do with what the majority talked about. So in his dissent, the blue is it. Also, we need to start talking about how we punish people for [01:02:00] committing violence for far too long. 
Right, this is a conversation we need to start having. I think we’re starting to see people say, “Well maybe we have to really talk a bit more about violence.” But it’s a slow process. Constant emphasis on low level nonviolent does have some real costs, so it’s going to be hard. We’re going to have to ask some real hard questions, and it’s not going to be easy. But I think oftentimes what really matters in the boring stuff, and maybe if there’s time my favorite example of this. [crosstalk 01:02:28] This is dry as dirt, [01:02:30] but incredibly powerful, is the census.
Trevor Burrus: Yes, I did have a question about this. So this is a fascinating tidbit.
John Pfaff: If you’re in prison, where does the census count you as living? Do you live where you were before you got sent to prison, or do you live in the prison? Outside of 4 states, New York, California, Maryland, and Delaware, you count as living in the prison. Not where you came from. So what that does[crosstalk 01:02:52]
Trevor Burrus: You can’t vote.
John Pfaff: You can’t vote, you’re five fifths of a vote. Or you count as five fifths of a person, but outside of Maine, and Vermont you cannot vote while you’re in prison. Which, by the way, [01:03:00] sets the United States apart from most of the rest of the world as well, and most liberal democracies. Even in prison you can vote, but outside of Maine and Vermont, not here.
Trevor Burrus: So that means you can have a county with maybe 700 people in it, but it has a prison, so it has 3,000 extra people in it, correct?
John Pfaff: Right, exactly, who can’t vote but count, and not only do they not vote and count but they tend to be disproportionately hispanic and black. From the cities, so disproportionately liberal, democratic voters who have now been moved to republican districts. So it beefs up the republican rural vote, and there are [01:03:30] stories across the country of these state senators who without their prison, won’t have their seat. In fact, when New York state changed their law, they changed it in this very narrow window. When the democrats controlled both chambers, and the governor’s mansion. Even despite that, republicans managed to push through something that split an upstate senate seat in half. A district in half, right. Based on the grounds that they knew they were going to lose at least 1 seat when the prisoners got shifted back to New York city, and Buffalo. So they took some rural areas, all republican, and tried to cut it in half to bolster that [01:04:00] lost seat. If I’m not mistaken, I think that seat is now held by a democrat, which is kind of funny, but it’s incredibly boring right? 
Census numeration, yet it leads state reps across the country to powerfully fight reform because if reforms happen and prisons shrink, they’ll lose their seats, and the parties will lose their seats. Right, I named the states, because it’s not random sample. California, Maryland, Delaware, and New York, four of the bluest states, and that’s not surprising because there is a strong political balance here. The fact that right now the republicans have the trifecta of both chambers [01:04:30] and the governor’s mansion something like [crosstalk 01:04:31] 26 days now. This census reform is not going to happen at the local, of anytime soon unless the census bureau itself changes the rules. Which they are debating doing right now.
Trevor Burrus: So that’s an example of the nitty gritty …
John Pfaff: Yeah.
Trevor Burrus: Dry as dirt stuff that we’re going to have to address.
John Pfaff: Right exactly.
Trevor Burrus: Yeah.
John Pfaff: If this matters, it’s boring. It’s not what we want to hear, but the shocking stuff that hasn’t been hammered out is probably still a problem because it’s not that important. If it’s still a problem, and we haven’t fixed it, it’s probably because … you want to talk about, I don’t want [01:05:00] to talk about the census, I want to talk about something really shocking. You know when you go to a party, and you talk about death row, everyone circles you, wants to hear about your death penalty case right? Oh, now it’s the census fighting numeration, I guarantee you’re drinking alone at that party, right? But you’re actually doing far more good for the overall system than that person who’s got that one shocking case.
Trevor Burrus: Thanks for listening, this episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more, visit us on the web at www.libertarianism.org.