Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform

Of all the State’s activities, incarceration – especially on a mass-scale – is probably one of the most brutal, disruptive, and inhumane. Of all the state’s activities, the census is probably one of the most… boring. But if we care about the former, we should care about the latter.

As it stands, the census counts prisoners as residing where they’re currently situated – the prison. That matters, because while prisoners can’t vote, they drive up the census numbers for the communities where they’re counted. Those communities (often otherwise very small) tend to see their prisons as major sources of economic opportunity, and will do anything to keep them there. What all this means is that the way the state takes its census gives wildly disproportionate power to those with strong incentives to block decarceration efforts.

John Pfaff’s Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform is filled with insights like this, illuminating the deep structural factors behind America’s mass incarceration problem. While Pfaff sees himself as something of a political moderate, it is exactly that kind of analysis that makes his book invaluable for radicals. It strikes the problem of mass incarceration at its roots, not only in drawing out our carceral state’s perverse incentives, but also through asking hard questions about the punitive impulse itself.

Pfaff seeks serious reform but takes issue with certain narratives common in reformer circles. To many, the “true causes of mass incarceration” mentioned in his subtitle are obvious – the federal government and its war on drugs, long sentences, and private prisons. That standard story is what Pfaff wants to replace with a different, better-informed picture – one focused on local governments, violent crime, prison admissions, and the public sector’s own set of incentive problems.

Even for Reformists, Ending the War on Drugs Is Not Enough

For libertarians and (more recently) progressives, ending the war on drugs seems like an obvious solution to mass incarceration. Of course, we should demand the immediate abolition of all legal restrictions on the sale, possession, and use of drugs. Putting people in cages for trading chemicals has no plausible connection to the state’s founding pretense of public safety. Even so, it’s simply false that the war on drugs is the main force driving mass incarceration in America.

It can’t be, because depending on where you place the war on drugs, it either starts too early or too late. It was well after Nixon that mass incarceration really took off, and, by the time we reached Reagan, it was already well on its way. Even at the state level, Pfaff shows the same problem; New York’s draconian Rockefeller Drug Laws, for example, were in place for ten years before that state’s incarceration rate surged.

Furthermore, whatever you think the percentage of people in prison is for drugs alone, you’re probably wrong. I certainly was. About three-quarters of prisoners are in state prisons, and only 16% of the people there are there for drugs. From 1980 to 2009, half of prison growth came from violent crime, with only 20% coming from drugs.

A few years before Locked In, Pfaff gave this critique of Michelle Alexander’s narrative in The New Jim Crow, which centers on the war on drugs. At the time, the Brookings Institution issued a reply, claiming that Pfaff’s critique only works if we’re looking at people in prison at any one time, rather than total admissions. This is especially problematic for Pfaff’s own narrative, which gives prison admissions more importance than sentence length. If we care more about the total number of people who’ve been affected by incarceration, as Pfaff does, perhaps the standard story is right in focusing on drugs.

In Locked In, Pfaff counters by taking an even closer look at admissions for drug offenses. When we distinguish between repeat admissions and first-time admissions, we find that the percentage of first-time admissions related to drugs is only 5% higher than the percentage of people in prison for drugs at any one time. So, it’s also false that the drug war is primarily responsible for the high number of unique individuals affected by prisons.

Moreover, ending the drug war wouldn’t even liberate everyone currently in prison for drugs. That sounds strange, but it’s because many drug arrests are probably pre-textual attacks on violent crime. In plain English, that means many people arrested for drugs were really arrested because the police believed they were involved in something violent but thought that would be much harder to prove. This is supported by the fact that drug arrests went up with violent crime. Similarly, we should remember that many people currently in prison on drug charges pleaded down with prosecutors from violent charges.

Of course, this is complicated by the fact that many people in prison for violent crime wouldn’t be there without the environment produced by drug prohibition. Pfaff acknowledges this point, but further complicates it with other possible counterfactuals. A world without drug prohibition, he says, could also see a spike in DUIs and other drug-related crimes, and the violence associated with black markets in drugs would just move elsewhere.

This might be because of my libertarian biases, but I thought Pfaff’s argument for this particular claim was one of the weaker parts of the book. Regardless, he’s right to say that if barriers to employment and upward mobility remain, even total drug legalization will not be a panacea for street crime. Beyond that, his argument for the larger point, that even total drug legalization would not reverse mass incarceration, remains persuasive.

Pfaff emphasizes several times that the drug war is not trivial, and he strongly agrees with the crux of Michelle Alexander’s argument about the racial impact of mass incarceration. We just cannot avoid the harder conversations about violent crime.

Digging Deeper Than Private Prisons

Pfaff also breaks with conventional wisdom on private prisons, arguing that the role they play in mass incarceration is ultimately minor. First, there aren’t all that many private prisons – freeing every single person kept in a private prison would reduce the total prison population by only 7%. Second, all the perverse incentives within the private sector are just as present several times over within the public sector.

Before outlining Pfaff’s argument, I’d like to note that nothing I say here should be taken as a defense of private prisons. Like all prisons, they should be immediately closed, and if their inmates want them physically destroyed, they should be physically destroyed. Any and all profits held by private prison companies like the Corrections Corporation of America should be handed over as reparations to those who’ve been held behind their walls. It is morally indefensible to keep anyone in a state of slavery, and any business model built on slavery is an offense against human dignity. All that said, if we want to fight that slavery, we should realize that the thing itself, not just its privatization, is our real enemy.

Looking at brute political impact, public sector interests have been much more significant in driving incarceration than private sector interests. Guards don’t want to lose their jobs, and their unions are very effective at lobbying to keep them. Beyond prison guard unions, politicians in communities with prisons often (mistakenly) believe they bring economic benefits, and they will fight like hell to keep those prisons. The election of prosecutors by county brings us prosecutors who rode in on the votes of whiter, more affluent, and crime-scared suburbanites, who then primarily prosecute the less-white, poorer, and more actually-threatened by crime (but less punitive!) urban population. Endless seeming minutiae like the aforementioned census problems further add to these perverse incentives.

In addition to all that, fairly standard public choice problems, like widespread ignorance, also plague criminal justice politics. Voters are much, much more likely to be aware of and react to “false-negative” convictions (that is, people they think clearly should have been convicted and sent away but weren’t) than “false-positive” ones (that is, people they think clearly should not have been convicted and sent away but were). This is made worse by the fact that voters are often totally ignorant of actual crime trends or the efficacy of any given program but all-too-aware of salient, shocking cases.

For example, consider the infamous assault, armed robbery, and rape committed by Willie Horton while on furlough. The actual furlough program was a huge success in terms of its goals – 99.9% of inmates came back without incident. Horton was the minuscule exception, but that was still enough to cost Michael Dukakis the Presidency. Aware of this phenomenon, prosecutors, judges, parole boards, governors, legislators, and the like will care a lot more about preventing a Willie Horton than they will about being as lenient as the public wants in the abstract.

Among public officials, Pfaff puts the biggest emphasis on prosecutors. Their almost unlimited power in deciding whether to bring someone to trial, what charges to bring, and what plea deals to offer is typically overlooked. That it’s overlooked makes sense – because we also have almost no data on how prosecutors make their decisions. That absent data starts to look at lot more pressing once you know that roughly 95% of all cases never even go to trial, because they end with plea deals. Many of Pfaff’s proposed reforms – like better funding for public defenders – accordingly focus on better checking prosecutorial power.

Rethinking Violent Crime

A major part of Pfaff’s problem with the standard story is not only that it gets the causes of mass incarceration wrong but that those mistakes can lead to counterproductive forms of advocacy. Many reformers will argue that we need to end the drug war in order to free up resources and prison space for fighting violent crime. If Pfaff’s alternative to the standard story is correct, this can have the long-run effect of actually further cementing mass incarceration. This is not a hypothetical – when South Carolina lowered penalties for drugs, it coupled that with raising penalties for violent crime.

For Pfaff, one of the conversations we most desperately need to have is also the hardest: finding ways to restrain the punitive impulse against those convicted of violent crime. Obviously, this is much less imminently politically feasible than cutting back on the drug war. That said, Pfaff gives good reasons why non-retributivists ought to be less terrified of freedom for those convicted of violent crimes.

The most immediately apparent justification for incarcerating those convicted of violent crimes is incapacitation. If someone is an ongoing threat to other people, protecting the public is a pretty clear reason for locking them up. But notice that this assumes they are an ongoing threat. Therein lies Pfaff’s main problem with moving from this justification of incapacitation to incarceration.

The leap towards incapacitating with incarceration assumes the person convicted of violent crime is a “violent criminal.” This is a term Pfaff avoids, because it takes violence as inherent to the person, not the circumstances of their action, and attributes it to something wrong with their very nature. Pfaff shows that the evidence for this view of violent crimes and the people who commit them is wanting.

Violence is a phase, not a state. Several factors like age, family status, and employment opportunities have significant impact on one’s propensity to commit violent crime. One of the darker ironies of this is that many people facing long sentences through three-strikes laws are aging out of violence just as they get sent away on their third strike.

Deterrence arguments are on shakier ground than they seem in the public imagination. Attempts to increase deterrence with harsher sentences, for example, are infuriatingly at odds with the correlation between crime and present-mindedness. In other words, the more likely you are to commit crime, the less likely you are to care about how long a prison sentence is.

Deterrence justifications for automatically imprisoning everyone convicted of violent crime also overlook the fact that much of what matters for deterrence has nothing to do with prison. Prisons do deter, but policing does so a whole hell of a lot more[1]. Even past the initial encounter with cops, there’s the shaming and other social disruptions that can occur very quickly from just an arrest.

Incapacitation and deterrence can also be positively damaged by incarceration. Prison can backfire and foster all sorts of criminogenic effects, like losing employment (which will be even harder to find after release) and breaking up families.

Focusing too much on all that, though, can also be a problem for Pfaff. He frequently bemoans current paradigms that treat public safety as an all-encompassing goal for which trade-offs should never be questioned. Mass incarceration’s impact is far and wide and cannot be judged purely in terms of public safety and financial cost. It rips years out of people’s lives, and that shouldn’t be done lightly. Even for people who don’t care about those who’ve committed crimes, it corrodes communities and leaves dependents helpless. Even if ending mass incarceration caused crime to go back up, Pfaff thinks we should very seriously consider the possibility that it might be worth it.

What All This Means for Anarchists & Prison Abolitionists

Pfaff is by no means an anarchist, nor a prison abolitionist. Yet his book should be of special interest to those of us in those milieus. It is all too easy to get trapped up in a standard story of mass incarceration that better fits the overall narratives of progressives and moderate libertarians.

We should not fall for the idea that private prisons suddenly introduce perverse incentives into a previously angelic arrangement of civically-minded people tuned towards divine justice. The state itself is caked in webs of rent-seeking and hidden Hobbesian conflict, and we should expect the same of its carceral functions.

Pfaff’s work also gives us more reason to take anarchism seriously as a way of judging real world politics, not a merely a theoretical exercise. For the state is often worst when acting purely within the bounds of its nightwatchman functions. Prisons do grow off laws (like the drug war) that have no basis in any variety of libertarianism, but they grow much faster off ruthlessly enforcing punishment in places classical liberalism has traditionally taken for granted. As radical liberals, we must more frequently question those assumptions.

Pfaff explicitly dodges questions about retribution. That makes sense. Retributivism entails that it doesn’t really matter if punishment is necessary for incapacitation or deterrence, it just matters that people get their just deserts. Strictly moral justifications for punishment are insensitive to the kind of data he draws out, or, at least, showing how the two relate is more complicated than just running regressions.

However, his own analysis also gives us reasons to think we can’t just skip those questions. We have to ask them, and we have to focus on them. We have to present an alternative framework for what justice means and what it looks like. One focused not on expressively destroying the lives of those who’ve done us harm, but on restoring moral relations and getting restitution for victims. This means pressing that framework not only in the comfortable cases, it is also in the uncomfortable ones. The ones where it looks really bad to be a prison abolitionist, where real people have suffered very real harm, and people of good will are feeling very real outrage for real reasons.

If we can’t do that, we won’t have any hope for more modest goals like reversing mass incarceration, let alone abolishing the practice. If violent crime starts rising again for an extended period, it’s going to matter what kind of cultural attitudes are in play, and whether people think letting the guilty walk free is a miscarriage of justice.

Taking Pfaff’s lessons to heart is a perfect start for getting prepared.

References

[1] I don’t think this serves as a sufficient reason for skepticism towards abolishing the police, at least not for market anarchists, but that’s a subject for another post. In short: that policing deters well, tells us little about whether that deterrence could be provided in much more effective and less morally problematic ways, especially when potential alternatives are kept back by the state’s jealous legal monopoly on violence.

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