11/06/19 John Pfaff

This week on Century of Lies, part two of our conversation with John Pfaff, JD, PhD. Dr. Pfaff is a professor of law at Fordham Law School and the author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.

Century of Lies
Wednesday, November 6, 2019
John Pfaff
Drug War Facts
Download: Audio icon COL110619.mp3




NOVEMBER 6, 2019

DEAN BECKER: The failure of the Drug War is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization, legalization, and the end of prohibition. Let us investigate the Century of Lies.

DOUG MCVAY: Hello and welcome to Century of Lies. I am your host, Doug McVay, Editor of www.drugwarfacts.org.

On today’s show we are going to have Part Two of my conversation with Professor John Pfaff. He is a Professor of Law at Fordham Law School. He is also the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform”. Let’s get to it.

DOUG MCVAY: What can we do to move forward in a progressive way and to start resolving some of these problems. How do we achieve real reform?

PROFESSOR PFAFF: I will admit that of all the chapters in my book, the last chapter focusing on reforms is probably the weakest and I am okay with that because I don’t think that anyone has thought hard enough in a wide ranging kind of way about how to respond to a lot of the issues. My three main points is that we need to focus much more on prosecutors than on long sentences, we need to focus much more on how we respond to violence and how we respond to drugs, and we need to focus a lot more on the public sector issues rather than private prisons. Private prisons are kind of a side show relative to the much greater power of the public sector. Only about 8% of all people are held in private prisons and while private prisons get about three billion dollars in revenue and make about 300 million dollars in profit, the payroll alone for the public sector prison system is in the range of 30 billion dollars, so ten times the revenue of the private prisons and 100 times the profit of private prisons is just the payroll component to the public sector. Many of these prisons are located in fairly remote areas where the prison – as awful a job as being a prison correctional officer is, and correctional officers have levels of PTSD and suicidal ideation that rival combat veterans who have seen active combat. It is still often the only decent job in the area. To complicate matters even further often times those communities that have prisons where the prison is the one good job there actually tend to be more minorities than other similarly situated small towns in the rural south and this is why these towns ask for a prison because they couldn’t get other good jobs to come there. The racial justice implications and decarceration, prison closers in the south is substantially more intractable than elsewhere. It is possible to think of various policy fixes for these things and there are a lot of small subtle things that we can do as well as some bigger things. I think in many ways my views have shifted a bit since the book came out. At the end of the day there are a lot of policy fixes that we should do but none of these policy problems that I identify and try to fix other people are identifying and trying to fix. All of them predate mass incarceration by a century so none of them caused mass incarceration, they facilitated trends. Once those trends got started something else got that ball rolling and I think it is helpful to think of mass incarceration as far more a political ideological failure than a policy failure. How do we change the way we think about things? I think two really striking examples of this is the dominant political model we face these days is you have these elected prosecutors, elected judges, parole boards, elected governors; we are the only country in the world with elected prosecutors, we are the only country in the world with elected judges. (UNINTELLIGIBLE) we are the only country where parole boards respond to an elected governor as opposed to being part of a completely politically independent judiciary. Our criminal justice system is much more sensitive to political shocks than other systems are and the classic example of this is the famous Willie Horton story.

Just like approximately 40 states and the feds in the 70s and 80s, Massachusetts had furlough programs that would allow people in prison to go home on the weekend to see their family, stay connected and start looking for jobs in anticipation of their release. In the Massachusetts case they even let people like Horton who had been convicted of felony murder (it is not clear that he did the killing but was part of a group of people who killed someone) who was serving a life sentence with parole to go home. Horton didn’t go home. At one point during one of his releases Horton ran off down to Maryland, broke in to a home, and committed a vicious assault including raping the people living in the home and gets rearrested. Horton was a tremendous outlier by Massachusetts standards. At that time that this happened back in the mid-80s, there was an article pointing out that over 99% of all people furloughed in Massachusetts came back without incident. The program as a whole worked but those successes aren’t politically salient/, the failures are. Willie Horton got turned in to what was viewed at the time (although by 2018 standards it’s not really so bad) as one of the most racist campaign ads during the George H.W. Bush/Michael Dukakis presidential election.

Even though the actual impact of Horton on Dukakis’ performance is generally oversold. The lesson people took away was that if you have one mistake you will get punished for it so don’t take any chances, just lock everybody up. Here is the interesting thing, several years before there had been another case exactly like Horton. I should point out that by the time the dust settled from the Horton case, every state including the feds had abolished their furlough programs. They do not exist anywhere because of the sensationalism around the Willie Horton case. Approximately 15 years before that the exact same thing happened. Someone got furloughed, left the prison and committed a murder and was rearrested. Law enforcement demanded that the state cut their furlough program due to lawlessness and anarchy and the governor fired the head of the furlough program and tightened the rules a bit but he said that the furloughs were an incredibly important aspect of rehabilitation and he was not going to let one act derail a successful program. That progressive minded governor was Ronald Reagan in California.

We are at a level now where we are actually less progressive than Ronald Reagan was in the 70s. There was a governor many years before who furloughed for the holidays. For Christmas she allowed one third of the prison population out of prison to go home for the holidays and 15 of those people did not come back. The media said it was a great idea and my guess is the average random citizen would have returned the same success rate. They thought it was important and wanted to maintain the furlough program. That was Alabama in the 30s! At this point we are actually more punitive than the Jim Crow south which on one hand profoundly depressing yet on the other hand it really highlights the fact that with all the defects in place, Ronald Reagan in the Jim Crow south didn’t do what we are doing now. We don’t have to do this, we don’t necessarily get the legislature to actually change all of our laws and fix all of these defects. It is about our willingness to change what we demand from our officials. The double edged sword of the vast discretion we grant police and the vast discretion we grant prosecutors is that while in recent history we used to be harsh and we can use it not to be. They can simply stop making arrests, they can simply stop arresting marijuana cases even if the state legislature can’t bring itself to repute the law. They can stop prosecuting cases even though legislature will keep them on the book. So it is a question; how do we get people’s attitudes to shift? That is an incredibly difficult question. My concern is that if you change all of the policy issues the system adapts very smoothly and you can fix one defect. People just shift their views and people shift their actions getting back to where they always wanted to be all along. If you want to change their attitudes you don’t have to change the underlying policies at all, we can just use the discretion we already have to do better things. I think we are starting to see drifts in that direction; even when it comes to violence we are starting to see efforts to embrace less harsh, punitive punishment with street level intervention and preventative approaches along with more restorative justice approaches and public health approaches. These shifts are happening albeit slow and tenuous. It would not take much of a spike in crime to undo many of them but it is suggested that there is some hope there that we really are starting to address the ideology of this more than the policy of it.

DOUG MCVAY: Drug courts were a good example of that, as you mentioned. Things would go much smoother and there would be less pressure. I watched the number of drug arrests and the number of drug courts and they rose alongside one another. It was easier to process so they just processed more. It was a great idea until it backfired. You can correct me on that if you like. That was at least my perception back then.

PROFESSOR PFAFF: I am not too up-to-date on the statistics on this but there is a general concern that people have with what is called “net widening” when you introduce an alternative it doesn’t divert people from prison to the alternative; we just take more people who would have otherwise dropped out of the system and pulled them in to the alternative. Net Widening is not inevitable but if you try to create alternatives any system that defaults automatically to be more punitive then you are just pulling more people in. If you create alternatives to a system that generally doesn’t want to punish anymore in the same way that we do it wouldn’t lead to net widening. It is not necessarily that these net widening effects are an inevitable result of creating alternative to traditional punishment, (UNINTELLIGIBLE) start from a presumption of punitiveness that is how they will use the alternatives. If you don’t change that underlying attitude you are not going to change the underlying behavior. I would not say that we are far along the path toward changing attitudes. I just saw something the other day about a community in Virginia that passed an ordinance last year saying that the punishment for trick or treating over the age of 12, or if you trick or treated after 8 pm at night, regardless of age you would face a misdemeanor offense punishable by up to $100 fine and 30 days in jail. How do you get people to stop knocking on doors at 9 pm, well I guess we should arrest them because what else could we possibly do? So our punitiveness is still very deep and instinctive and you certainly see it any time people point to disparities in punishment. Why is Paul Manafort getting this number of years and the sentencing of somebody less is getting far more years? The adage there is always motivated from a position of everybody should get the longer sentence, not everybody should get the shorter sentence. We have a very, very long way to go from moving away from the harsher sentencing that we have almost come to accept at a profoundly instinctual level. If we don’t do that with the drug courts and everything else punitive actors will figure out ways to work around reforms to preserve the punitiveness that they want to impose.

DOUG MCVAY: You are listening to Century of Lies. I am your host, Doug McVay. This is a conversation with Professor John Pfaff. He is a Professor of Law at Fordham Law School, and he is the Author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform”. Now let’s get back to that conversation with John Pfaff.

So that is the limitation of reform, the system makes a couple of adjustments in order to get people to calm down and stop making trouble and then continues on with the same attitude.


DOUG MCVAY: What are you working on now? You said you’ve shifted your thinking, are you working on a new project?

PROFESSOR PFAFF: My next project isn’t so much about the policy versus politics point. I am trying to undertake (UNINTELLIGIBLE) to really get a sense of what the full social cost of incarceration is. We spend about $50 billion dollars a year on prisons and $30 billion dollars a year on jails, but those aren’t really the right costs to think about. In part because they are not entirely costs. About two-thirds of that spending on prisons and I think even a greater fraction of spending on jail is wages and wages aren’t entirely costs – it is a strange multiplier thing. I didn’t do well enough in graduate school in economics to fully grasp it. They are not entirely costs. The real social costs of prison is the fact that even when people go to prison after they get out they earn less money. They are also physically and sexually assaulted while they are in prison. The risk of death from an overdose skyrockets upon release from prison and that is true in the United States as much as in Germany and Holland. This is a universal (UNINTELLIGIBLE) that drug overdose deaths rise significantly within the first few weeks of release from prison. Overall one thing that New York State suggested that a short to medium term with one year in prison cuts two years off of your expected lifespan. Families are weakened and strained, there is shame and stigma. There are health costs as prisons are vectors of tuberculosis, STDs, and HIV. What are the total human costs of punishment? Remarkably despite the fact that from the 80s to today we have made close to half a billion arrests and admitted about 20 million people to prison and despite this massive social experiment that we have engaged in with this mass punishment unseen anywhere in the world, or even unseen in our own history we have never bothered to actually figure out what the real costs of it are.

My next goal is going to be to try to understand what the actual human cost of what we are doing with regard to mass incarceration; not the financial costs. Once we see those human costs I think it will put whatever punitive benefits prisons and punishments have more broadly – we need to be able to put them in proper context and I think this is the key contextual piece that we just don’t have.

DOUG MCVAY: Fascinating. There is research out of England showing that it took an average of about two hours of police time to take care of one simple possession arrest. They did the math and saw how many police hours were spent dealing with possession. Give me your opinion please because I think that is a reasonably strong argument. What do you think about that argument?

PROFESSOR PFAFF: I think that is a legitimate question. Communities with high rates of crime especially poor communities and communities of color are over-policed. My perspective on that is to better think of it as mis-policed. The police then waste their time focusing on low level stuff while our homicide clearance rate is abysmal for the offense. This is actually a point that Jill Leovy makes in her book, “Ghettoside: A True Story of Murder in America”, where she is an L.A. Times reporter who was embedded with the homicide unit in south central Los Angeles for several years. She points out that the clearance rate for murders and homicides were solved with arrests and for L.A. County as a whole it is about 60%, which is about the national average. Two-thirds of all murders produce an arrest and about one-third of murders never see anyone arrested but in L.A. County if the victim was a black man that clearance rate drops from 60% to 30%. So two-thirds of all murders of a black man produced no arrests at all.

Her sense is that a lot of the frustration and hostility that African Americans in particular felt in south central towards the police was their sense of why were the police making so many drug arrests while their son’s homicide continues to remain unsolved? If we could focus on those homicide offenses that could actually have some real benefits.

There is this gross misallocation of policing that takes place and I think that focusing on those costs is spot on. I would just say that I am focusing solely on prisons for my project. The way I describe it to my students is that the criminal justice system is like a giant burning sun of failure and if you try to stare at the whole thing at once you are going to go blind. So you have to picture one little sliver as best you can and trust that other people are going to study other parts and try to fix other the other parts.

If I were to try to measure the entire social cost of punishment, arrests, electronic monitoring, jail time, probation, parole, prisons, sex offense registries and all of those things my grandchildren wouldn’t live long enough to get it done. I have chosen to focus on the prison aspect because it is an area I am most familiar with. If you don’t limit your analysis it becomes impossible. That said, I think it is important that we talk a lot about mass incarceration and try to change it in this country.

As someone who has studied prisons his whole life I understand that but mass incarceration and mass punishment are two very different things and in many ways while prison gets all of the attention; it is very much just the tip of the ice burg. I think that one thing that confuses people is that when they hear the statistic of approximately 1.5 million people in prison and about 750,000 people in jail, and those are one day counts. On December 31st, how many people do we have in these facilities and it was about 1.5 million and 750,000. The catch is that jail which is used primarily for pretrial detention has a massive turnover rate in the way that prisons are used for felony convictions that generally have a sentence of a year or more are not. So we have a prison population of about 1.5 million and we admit about 600,000 people to prison every year. On any given day there are about 750,000 people in jail but we make 10 million jail (UNINTELLIGIBLE) annually. One recent study suggests that about five million unique people make up those 10 million people each year. The actual impact of jail is far vaster than the impact of prison because it impacts far more people. Ten times as many unique people get admitted to jail every year than get admitted to prisons every year. We make between 10-12 million arrests and while some of them are not unique people; but a lot of them are. As you work your way down the system different things matter more.

Drug arrests are one of the larger arrest categories with more than ten percent of all arrests being for drugs, and a large fraction of those are for marijuana but marijuana makes about one percent of all prison population. Decriminalizing or legalizing marijuana will probably have next to no impact on prisons but it would have a significant impact on arrests and a bigger impact on jails. Each of these institutions impact different communities, different offenses, and different strategies in different ways. I have been increasingly finding myself using this term “mass punishment”, to say mass arrests doesn’t inevitably lead to mass jail and mass jail doesn’t necessarily lead to mass incarceration even to the extent that they are connected to each other, they are sorting people and impacting communities and people in different ways each of which demands its own type of attention. So I am focusing on prisons and I want to make it very clear that my prison results won’t tell us about the jail or the policing parts those are other aspects that demand their own separate analysis.

DOUG MCVAY: That gets to the big question from before and that is how to change the attitudes because mass punishment is less about policy and more about the attitudes that are driving the policy.

PROFESSOR PFAFF: Right. I think a lot of it is about actually paying attention to these down ticket elections. We have started to acknowledge the importance of the prosecutor which is fantastic but now we are starting to realize that if we just change the prosecutor but not the judges that can be a problem. Kranser is finding that problem in Philadelphia where a lot of the judges are resisting his changes. Chicago has tried to change its courts and the judges are balking there. It suggests that outside of cities in to more rural America sheriff elections matter tremendously. Like the district attorney, the sheriff is a county elected official who runs the jail outside of incorporated towns and make all of the arrests. In rural America they are hugely powerful and utterly not removable absent an election. There is one sheriff somewhere that is currently under indictment for trying to hire a hit man to kill one of his own deputies who had been a whistleblower on him. He is also still the sheriff because there is no way to make him step down while he is being investigated for attempting to murder one of his own deputies. There is a case in Alabama that had this ancient depression era provision that would actually allow sheriffs to keep any remaining funding for the jails in their own pockets and these sheriffs were actually buying summer homes while they were feeding people in jail food that was not fit for human consumption. They had tremendous impact on day to day lives on people in their jails and in their communities and like prosecutors ten years ago they had generally flown beneath the radar and only now are starting to get attention. I think we need to mobilize people to understand that they get to make these choice. These county officials have tremendous power over day to day lives and we need to get people to become energized about that. I think there are a lot of groups that are really starting to take that seriously. These groups are starting to work hard to mobilize communities to get more involved and take these elections seriously and get out to vote in order to make these elections count.

DOUG MCVAY: The sheriff that you were referring to is in Granville County, North Carolina. In a USA Today article from September reads, “North Carolina sheriff has been indicted for allegedly plotting to kill one of his deputies after learning the man had a tape of him making “racially offensive” comments. Indicted Monday on two counts of Felony Obstruction and blah, blah, blah.

PROFESSOR PFAFF: Yes, and he is still the sheriff.

DOUG MCVAY: Again folks, Professor John Pfaff, PhD., JD. He is a Professor of Law at Fordham College of Law. His book is “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform”. It is a terrific book.

What else is on your radar? What other stuff are you looking at?

PROFESSOR PFAFF: Project-wise it is obviously this cost of prisons project and while it is not my area of research, I find it most interesting is really thinking more carefully about how we frame reform efforts because we get very focused on rehabilitation to the overreach and then we swing back to being punitive, then overreach and back. It is like an inevitable, swinging pendulum. I read a great book last year entitled “Breaking the Pendulum” that argues that it is the wrong way to think about it. That is how things look ex post but at the time what is happening is that during any period of reform the tough on crime people are there trying to lay the trap and push us back in to a tough on crime direction. Even in the most “tough on crime” phase progressive reformers are there with perhaps little or no attention but they are trying to build the framework to push things in a more progressive direction when more macro-level conditions change the political story.

I think often there is a concern that the reform effort is falling in to those traps and I think one example of that is one of the ways they frame the decarceration efforts. They keep saying that we need to look at all of these states that are cutting their prison populations and their crime rate has been falling, therefore it is safe to cut prisons and we should continue doing it which is true. The challenge of that framing is that it suggests that if crime goes up the justification for cutting prisons goes down and that is actually not true. Prisons have bad response to crime whether crime is going up or going down. We know with practical certainty that there are far better ways to respond to crime than prisons. Even if you are not an abolitionist and you are not saying that we should get rid of prisons altogether we should focus far more on non-prison interventions than where we are today than on prison as a way to respond to rise in crime. I get the politics of continuing things while things are good but it sets up the simplistic message that when things get bad maybe the argument for decarceration goes away and that is exactly what happened in Alaska.

Alaska passed a really sweeping reform bill and the next year for reasons completely unrelated to that crime bill, crime went up and they immediately repealed the whole bill including half of the revisions that had not yet gone in to effect and they could not explain the crime rise. It was sold as a way to do this because crime was going down and when crime went up they undid it. I think there is a lot (UNINTELLIGIBLE) how do we think about the political framing of what an effort to scale back punishment is because we want to be careful not to slip in to a framework that actually ends up going the tough on crime component for them. It is clear that as a purely public safety policy matter, tough on crime is not the right way to respond but it is a very easy political path to go down.

DOUG MCVAY: Professor John Pfaff, Author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. He is a Professor of Law at Fordham College of Law. For now, that is it. I want to thank Professor Pfaff for being my guest, and I want to thank you for listening. This has been Century of Lies. This is Doug McVay saying so long!

For the Drug Truth Network this is Doug McVay asking you to examine our policy of drug prohibition, the Century of Lies. Drug Truth Network programs are archived at the James A. Baker, III Institute for Public Policy.