10/30/19 John Pfaff

Century of Lies
John Pfaff
Fordham Law School

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.

Audio file



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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