TRANSCRIPT

CENTURY OF LIES

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.

PROFESSOR PFAFF: Exactly.

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.

TRANSCRIPT

CENTURY OF LIES

OCTOBER 30, 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 – 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 DrugWarFacts.org.

This week on Century of Lies, part one 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.

This week, Part 1 of my conversation with Professor John Pfaff, JD, PhD. Dr. John Pfaff 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. Let’s get to it. Tell us about your book, Sir.

DR. PFAFF: The main argument I am trying to make is that this conventional wisdom we have – the things that points to matter, they are not irrelevant, but there are other things that matter more. Importantly, by focusing on things we do focus on we tend to miss the things that matter more and arguably make it even harder sometimes to address the things that matter more. Drugs is a great example that prison is a terrible way to handle the drugs. I think most public health people think that prison is a terrible place to manage drug addiction. Even drug courts are tricky and problematic and the more we can move in to a public health view of drugs, the better. The catch is that in the state prison system – and the states hold about 90% of all prisoners. They do most of the work.

Only about 15% of the people in prison are in prison for drugs at most. In reality it is probably even less than that because we classify people in prison by the most serious charge to which they were convicted. So if someone is arrested for aggravated assault that is part of a domestic abuse situation and he has cocaine on him at the time of the arrest, perhaps the abuse partner will testify. It is a murky situation and so the D.A. will agree to a deal if you plead guilty to the cocaine, they will drop the aggravated assault. He agrees – but the D.A. says, “But we are going to demand prison time for the cocaine because of that assault”.

That person shows up in our data as a non-violent drug offender because from a prison point of view the aggravated assault played no role. So he is really there for violence but pulls up in our data as there for drugs. So our 15% include the true drug cases and these are protectoral drug cases, we can’t break it apart. About 55% of all people are in prison for violence and of the long serving – at least those in the top 10% of the time served in any given state prison, almost all of them – well over 95% of them – were in for either murder, manslaughter, rape, or robbery. Probably as you spend more and more and more time they become more than half of those who are in for a really long time for homicide. On the one hand, 190,000 some odd people are in prison for drugs. Even for an abolitionist, a large number of them should not be in prison.

So pushing back against incarceration as a way to respond to drug issues is good policy, but we have to do that in a way that doesn’t preclude our ability to later take on the issue of violence and we tend to do that. Just before my book came out when my editors would not let me change it and drop all of their page work and all of the editing they had done since it is not in there – Vox came out with this survey of about 3,000 people nationwide asking them questions about criminal justice reform and their two questions are very closely linked and very problematic. One question was, “Do you think roughly a majority of people are in prison for drugs?” and the survey broke things out by Liberal, Moderate, and Conservative and a majority of all three groups said, “Yes”.

About half of all people are there for drugs but it is not 5-0%, it is 1-5%. It is completely wrong – that is bad. The next question is what makes that answer so problematic. One of the next questions was, “Are you in favor of reducing the time spent in prison by those convicted of violence who pose little to no risk of reoffending”? For this a majority of all three groups from 55% of Liberals to 65% of Conservatives said, “No”, that they are not in favor of changing how we punish violence and so the problem I think we have created is that we have put drug cases so much at the center of our discussion of prisons that we think we can get out of prisons – we can decarcerate in a meaningful kind of way just by focusing on the easy drug cases and it means we remain unwilling to go after the harder violence cases. Often if you phrase it as a tradeoff – we are going to cut back on drugs in order to focus on violence and save prison beds for people who commit crimes of violence. Sometimes in the legislative process you see this tradeoff where the compromise is you cut the drug sentences in exchange for ratcheting up the sentences for violent crimes.

The point I am trying to make isn’t so much that drugs are irrelevant. There are 200,000 people in state prisons and another 90,000 in Federal prisons for drugs. That is 300,000 people, most of whom pose no safety risk in any meaningful kind of way or if they do pose a safety risk, something much public health, housing, food centered would be a far more effective and humane way of addressing that but we have framed an advance in such a way that we make it really hard to ask these much more unavoidable, intractable problems about violence.

DOUG MCVAY: Indeed. Within the Drug Policy Reform I know that we got much better over the last few decades, but back in the 80s and in to the 90s, marijuana legalizers like myself talked about how this would allow authorities to focus on harder drugs and that was a stupid. We have learned since then and we have changed that but then again we have also, as you were saying – we talk about the need then to focus on more serious crime and violent crimes. That leads to another problem. The Innocence Project and a lot of the state groups have shown that there are a lot of people in for crimes they didn’t actually commit.
Then you’ve got the clearance numbers in general, even with that we only get about 50% of the violent crimes cleared each year.

I want to ask you about the numbers before we go in to some of the other stuff. I have always believed you need to have good data if you are going to formulate good policies. You may formulate a good policy even if you have the good data, but if you don’t have the good data it is going to be really hard. The criminal justice data is not what people think.

DR. PFAFF: It is not.

DOUG MCVAY: It’s not as cut and dry as people think.

DR. PFAFF: Yes. So before I get to the data I want to go back to a point you kind of raised in passing that I think is important to mention to people. You talk about the Innocence Project findings and they are real, and significant but the catch is that by in large they are limited to death penalty cases – some rape cases – but mostly death penalty because those are cases a) where the person’s been to prison long enough for these cases that (UNINTELLIGIBLE) the system.

The reason why it is murder or rape is that the cases were most likely to have DNA evidence, which is what we use for exoneration. I am not sure it is safe to extrapolate from capital cases to all other crimes in both directions. It is confusing. On the one hand in capital cases prosecutors face the most amount of pressure to get a conviction. These are front page news killings. If this case gets botched it is going to cost the current elected D.A. perhaps his job. If the Assistant D.A. does a great job, this is his ticket to either a better private practice or perhaps being the elected D.A. himself, or a federal prosecutor position. So the incentives to overwhelm things are greater there. On the other hand, capital cases are the cases where the defendant is most likely to have the highest quality lawyer he can get so the affects offset as opposed to misdemeanor court where things get ground through in really complicated ways and the law is really unclear.

How a misdemeanor court even know if you broke the law. One of the big misdemeanor charges back in New York State is disorderly conduct and disorderly conduct with the intent to cause a nuisance because you play music too loud. How do you even know when you violate that law? How do you even know what is innocent or guilty in that situation? I think the bigger point I want to stress is that almost everyone in the system is actually legally guilty, and I am using that phrase very carefully. Our criminal laws are incredibly broadly written and you hear people talk a lot about this over-criminalization problem. There is this funny Twitter feed called Crime-A-Day, which goes through the Federal code and every day tweets out one Federal crimes such as labeling pasta more than 5 ml. thick as spaghetti.

It is ridiculous, but no one is in prison for Federal Pasta Labeling. The real challenge we have is that our assault laws are broadly written. Our public nuisance laws are broadly written. Our theft laws are broadly written and so it is very easy to violate criminal conduct even if punishment is not the right way to handle it. When you punch someone in the head in a bar because you are frustrated, you are drunk and you just lose control and punch them – you don’t break their jaw, but you punch them. That is assault. That might even be aggravated assault, or even assault with a deadly weapon if you hit them with your beer glass. Does every one of those cases really need to result in an arrest? Does it really need to result in a conviction?

Does the criminal justice system have to police every sort of social ill that happens every time it happens? That is our default response these days is to punish them. So I think as much as I admire the work that the Innocence Project has done, I get concerned when it turns our framing around. It’s like we have a huge innocence problem in our criminal justice system because that implies that the people who are factually guilty deserve to be punished and I would stress that there is plenty of factually criminal behavior that doesn’t necessarily deserve a record. When I was in high school I punched a friend of mine in the head in a church – so there is a different judging going on in that one but did I deserve to have a permanent criminal record from two kids throwing one punch at each other? I don’t think either of us deserve that, and neither of us got that because there were no cops in our church.

So the Innocence Project framing does good work but I think the real focus we have to have is that it is very easy to trip up and break the law. Do we always need to use the law just because you break it? Probably not. I think that is one thing to just keep in mind.

Now to go back to the question you asked at the end. What is the nature of our data? There is a couple of things to realize about our criminal justice data. One is that it tends to be profoundly out of date and that is just because we choose not to fund it. I watch with envy when labor economists each month wait for last month’s labor statistics to come out. Meanwhile, crime data for us comes out with a year lag. Prison data comes out with a two year lag, although some of those have a two and a half to three year lag. Other data sets are good. Six, seven, eight, ten, 12 years out of date.

The last year we have comparable spending data on prosecutors and public defenders and indigent defense offices is at 2005, so it is almost 15 years old. That is because we just don’t pay for it. The Bureau of Labor Statistics has a budget that is more than ten times the Bureau of Justices budget and the BGS’s budget – half of it goes to just running one data program. So we just have chosen not to fund this and as a result we don’t really know what is going on. Lots of our numbers rely on are incredibly stale so on top of that reporting is voluntary. (UNINTELLIGIBLE) reports data and I think how we define things is incredibly important. We talk about violent crime going up or violent crime going down, or property crime going up and property crime going down and I think people don’t really read the small print.

You might not realize what violent crime is, it is not all violence. It’s just for violent crimes – murder, manslaughter, aggravated assault, rape – the definition of which has changed in recent years, and robbery. That is it. So simple assault doesn’t show up as on official crime number. We track arrests for that but not crimes and confusion can happen if we are not paying close attention to this. We make about 500,000 arrests for those serious violent crimes: murder, manslaughter, rape, aggravated assault, and robbery. We make about a million arrests for simple assault the one we don’t track the offending levels for. You hear people say things like, “We arrest more people for marijuana than for violent crimes”. That is only true if you count those four major violent crimes – for issuing 500,000 arrests and about 500,000 marijuana arrests.

If you count the one million simple assault arrests, we actually made more arrests for violent crime than for marijuana. So we might still make too many marijuana arrests but we are still framing the nature of the discussion wrong because the way we choose to define things is very ornery and particular.

DOUG MCVAY: Just to remind folks, we are talking with Professor John Pfaff, PhD., JD, professor at Fordham College of Law. He is the author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Thank you for the correction because you are right, it is easy to fall in to. My concern was about the first part you mentioned – with a capital case you would expect that they would try and get it right and yet there is so much pressure and these kinds of cases are career cases. That leads me to the question of prosecutors – one thing in your book that you point out – here in my home state of Oregon and around the country there are a lot of nonprofits, a lot of advocacy groups trying to raise awareness of the power of the prosecutor and the influence they have.

Could you speak about that for a moment?

DR. PFAFF: Sure. The prosecutor is probably in many ways one of the most powerful people in the system with tremendous discretion and almost no formal oversight. For example, if a prosecutor decides to drop charges it is completely unreviewable. So when the police make an arrest and the prosecutor drops the charges no one can appeal that. Whether or not your case goes forward entirely rests within that office. Also our criminal codes are often very broad and overlapping and that gives prosecutors tremendous discretion about how to charge conduct with huge implications. Manslaughter is an accidental but in a really bad kind of way cause of death. Attempted manslaughter is when you engage in a bad behavior where death almost happens, but does not.

That is usually a very serious felony. But that same behavior where you accidentally almost cause a death, but don’t – that could be a form of aggravated assault. That is a less serious punishment. Sometimes you could be charged with reckless endangerment; engaging in behavior that could cause death but doesn’t, that is attempted recklessness or attempted reckless homicide, But attempted reckless endangerment might be a misdemeanor which means no prison time, just some jail time in the local county for up to a year and a fine.

The prosecutor has unreviewable discretion to decide if they are going to chare you with attempted manslaughter, aggravated assault, or reckless endangerment. So are you facing ten years in prison, four years in prison, six months in jail? That is entirely up to the prosecutor. Again, absent any egregious behavior it is pretty much unreviewable. So that alone gives them huge power. They can choose (UNINTELLIGIBLE) different charges to charge you with – how they stack charges or cut back on charges.

Whether you go forward with your case at all they can threaten to charge other people if you don’t settle with them and that is completely legal. So all of this power and we have no real oversight in to what they do in that they provide very little data. For all its flaws, the Feds really do try hard to gather data on crime and on prisons and arrests, they don’t really gather data on prosecutors. They don’t provide detailed reports of their own generally. You are seeing this start to happen in places like Philadelphia and Chicago with progressive prosecutors, but generally they don’t tell us anything about what they are doing. So it is tremendous power operating in almost complete secrecy. They are directly elected in elections that tend to have very low turnout so they don’t really have a boss other than the electorate, and the electorate doesn’t vote because in most cases the prosecutor election is basically the down ballot primary election.

(UNINTELLIGIBLE) clinically unopposed in the general so there is very little political oversight, very little data oversight and a trace amount of discretion. In theory all of this power would be checked by the jury. They can bring over charges they want but there are the body of people there to protect them. It is easy to oversell (UNINTELLIGIBLE) before we get to the (UNINTELLIGIBLE) jury is to protect the (UNINTELLIGIBLE) of the jury. I remember when I was living in Chicago there was an article in The Chicago Reader pointing out that around 80 – 90% of all criminal defendants in Cook County court were black men. 75% of the jury’s that were paneled in jury trials were 100% white.

There are a lot of young black men from the south and west side of Chicago and the juries are probably being pulled from wealthier, more conservative, much wider suburban Chicago than Cook County. The real issue is the fact that most cases don’t go to a jury. Of the cases, of the criminal, of the guilty verdicts that we get – about 90 some percent come around to the plea bargain where the defendant agrees to waive his right to the jury trial, waive his right to any trial at all and in exchange he pleads guilty and in theory gets something in exchange. Instead of charging him with 20 years, he pleads guilty and they only give him five years.

That gives them tremendous pressure to bring to bear they can offer these incredibly sweet deals. The Supreme Court case of what counts as coercive pressure is in the case known as Bordenkircher v. Hayes in which Hayes is the defendant here, I can never keep it straight. He wrote a bad check and he was a repeat offender in Kentucky back in the 40s or 50s, and they had a very harsh repeat offender law. The D.A. told him if he pleaded guilty it would be three years, if he didn’t he was going to be charged as a repeat offender and he would serve life.

Hayes rolled the dice and lost and was convicted in which he received a life sentence with parole, but still a life sentence. The Supreme Court said that was totally fine. They can make these incredibly coercive deals. They can also use where you are as (UNINTELLIGIBLE) especially for misdemeanors. They have a defendant who couldn’t make bail (UNINTELLIGIBLE) than the D.A. can tell him to plead guilty to this and you get to go home today. It is a huge incentive for someone to plead guilty to something they might even be guilty of just to get out of the hell hole like Riker’s Prison. All of this is subject to almost practically no review whatsoever and as far as my data suggests what really drove prison growth in the 90s and 2000s that I have data on prosecutors really wasn’t longer sentences.

It wasn’t growing arrests – arrests actually fell during the 90s and 2000s as crime went down. What really changed it even if the number of arrests went down, the number of felony cases prosecutors chose to file went up so they were choosing at an office level to be more aggressive and that played a big role in causing prisons to keep growing steadily even as crime went down over the 90s and 2000s.

DOUG MCVAY: Wow. There is actually a contested prosecutor race where I am now living. That is not exactly common I guess.

DR. PFAFF: I would say that ten years ago it was pretty much unheard of. Almost no D.A.s ran contested and the D.A. almost always won. Within the past eight or nine years you have started to see a much greater interest in these races and you have seen pretty hard fought races, lots of entrants, particularly in urban counties. I think one of the things that changes our conception of criminal justice is that a lot of them ask questions like why is New York State different than Louisiana, why is Tennessee different than Ohio? From a criminal justice point of view this is actually not the right way to think about it. One of the longest sustained decarcerations in the country has actually been New York. Unlike the rest of the country we started declining in 1999, so you have an almost two decade long decline that we have been experiencing. Our prisons have shrunk by about 25,000 people since their peak of about 75,000 to around 50,000.

What is fascinating is if you look at the period ‘99-2010, New York State as a whole did not decarcerate. Look at the county in 1999 and ask how many people from your county were in prison 1999, and how many people in your county were in prison in 2010? Of the 60 some counties in New York State, only four were sending fewer people to prison in 2010, than in 1999. It just happens to be that those four counties were Brooklyn, Bronx, Queens, and Manhattan so they drove the whole state down but New York State didn’t decarcerate.

New York City decarcerated and the rest of the state got overwhelmed by our outsized importance. So what we are seeing today is a general, rough decline in state prison populations. It is uneven and about half the states have shrunk but what is happening is that it is mostly urban counties that are shrinking and rural counties are getting harsher. So when we say a given state has declined often is what you see looking at the map is that it is less that the state has declined, it is that the urban counties have shrunk faster than the rural counties have grown.

What we have seen in prosecutor elections is a rise in progressive-minded prosecutors, but mostly in urban counties. The politics of that is very much framed around urban issues of racial justice, racism, and classism baked in to the criminal justice system, which is what resonates in Baltimore, Chicago, Boston, St. Louis, Brooklyn, (UNINTELLIGIBLE) and Queens. We are seeing these positive progressive victories.
I think there is a way to talk about progressive prosecution in rural America, but it is going to be framed in a radically different way that doesn’t speak to issues of racism because these counties tend to be very racially diverse but more to destroy the anxieties of poor, working class white America which tends to make up these increasingly punitive counties. Ten years ago there was really nothing – the trend we’ve seen lately is a rise in progressive D.A. movement in urban counties and urban counties tend to have most of the people, so that is a good place to start. It is not spreading to rural America they are actually getting harsher and harsher. I think there is a growing effort to try and figure out how to translate less punitive arguments in a way that resonates with more racially homogenous, more conservative rural America and I think there is definitely a way to do that we just haven’t done a lot of it yet.

DOUG MCVAY: And that is it for this week. That was Part 1 of my interview with Professor John Pfaff. He is a Professor of Law at Fordham Law School. Dr. Pfaff is also the author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Part 2 is going to be great and we will have that next week. For now, that is it. I want to thank you for joining us.

You have been listening to Century of Lies we are a production of the Drug Truth Network for the Pacifica Foundation Radio Network. On the web at www.drugtruth.net. I have been your host, Doug McVay, editor of www.drugwarfacts.org. The Executive Producer of the Drug Truth Network is Dean Becker. Drug Truth Network programs are available by podcast, the URL’s to subscribe are on the network homepage at www.drugtruth.net

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