Pubdate: Wed, 30 Sep 2015
Source: Press Democrat, The (Santa Rosa, CA)
Copyright: 2015 The Press Democrat
Contact:  http://www.pressdemocrat.com/
Details: http://www.mapinc.org/media/348
Author: David Brooks
Note: David Brooks is a columnist for the New York Times.

PROSECUTORS AND THE PRISON PROBLEM

Pretty much everybody from Barack Obama to Carly Fiorina seems to 
agree that far too many Americans are stuck behind bars. And pretty 
much everybody seems to have the same explanation for how this 
destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many 
nonviolent people wound up in prison. Second, mandatory-minimum 
sentencing laws led to a throw-away-the-key culture, with long, cruel 
and pointlessly destructive prison terms.

It's true that mass incarceration is a horrific problem. Back in the 
1970s the increase in incarceration did help reduce the crime rate, 
maybe accounting for a third of the drop. But today's incarceration 
levels do little to deter crime while they do much to rip up 
families, increase racial disparities and destroy lives.

The popular explanation for how we got here, however, seems to be 
largely wrong, and most of the policy responses flowing from it may 
therefore be inappropriate.

The drug war is not even close to being the primary driver behind the 
sharp rise in incarceration. About 90 percent of America's prisoners 
are held in state institutions. Only 17 percent of these inmates are 
in for a drug-related offense, or less than 1 in 5.

Moreover, the share of people imprisoned for drug offenses is 
dropping sharply, down by 22 percent between 2006 and 2011. Writing 
in Slate, Leon Neyfakh emphasized that if you released every drug 
offender from state prison today, you'd reduce the population only to 
1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of 
incarceration, and ending that war, wise or not, will not solve this problem.

The mandatory-minimum theory is also problematic. Experts differ on 
this, but some of the most sophisticated work with the best data sets 
has been done by John Pfaff of Fordham Law School. When I spoke with 
Pfaff on Monday I found him to be wonderfully objective, 
nonideological and data-driven.

His research suggests that while it's true that lawmakers passed a 
lot of measures calling for long prison sentences, if you look at how 
much time inmates actually served, not much has changed over the past 
few decades. Roughly half of all prisoners have prison terms in the 
range of two to three years, and only 10 percent serve more than 
seven years. The laws look punitive, but the time served hasn't 
increased, and so harsh laws are not the main driver behind mass 
incarceration, either.

So what does explain it? Pfaff's theory is that it's the prosecutors. 
District attorneys and their assistants have gotten a lot more 
aggressive in bringing felony charges. Twenty years ago they brought 
felony charges against about 1 in 3 arrestees. Now it's something 
like 2 in 3. That produces a lot more plea bargains and a lot more 
prison terms.

I asked Pfaff why prosecutors are more aggressive. He's heard 
theories. Maybe they are more political and they want to show 
toughness to raise their profile to impress voters if they run for 
future office. Maybe the police are bringing stronger cases. 
Additionally, prosecutors are usually paid by the county but prisons 
by the state, so prosecutors tend not to have to worry about the 
financial costs of what they do.

Pfaff says there's little evidence so far to prove any of these 
theories, since the prosecutorial world is largely a black box. He 
also points out that we have a radically decentralized array of 
prosecutors, with some elected and some appointed. Changing their 
behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will 
be easy - just release the pot smokers and the low-level dealers. In 
reality, reducing mass incarceration means releasing a lot of 
once-violent offenders. That may be the right thing to do in 
individual cases, but it's a knotty problem.

Two final points. Everybody is railing against the political 
establishment and experts and experienced politicians. But social 
problems are invariably more complex than they look. The obvious 
explanation for most problems is often wrong. It takes experience and 
craftsmanship to design policies that grapple with the true 
complexity of reality.

Finally, recategorizing a problem doesn't solve it. In the 1970s, we 
let a lot of people out of mental institutions. Over the next decades 
we put a lot of people into prisons. But the share of people kept out 
of circulation has been strangely continuous. In the real world, 
crime, lack of education, mental health issues, family breakdown and 
economic hopelessness are all intertwined.

Changing prosecutor behavior might be a start. Lifting the spirits of 
inmates, as described in the outstanding Atlantic online video 
"Angola for Life," can also help. But the fundamental situation won't 
be altered without a comprehensive surge, unless we flood the zone 
with economic, familial, psychological and social repair.
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MAP posted-by: Jay Bergstrom