Mass Incarceration: The Problem With the Standard Story

newyorker  |  So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.

 Pfaff, in making his case, points to a surprising pattern. While violent crime was increasing by a hundred per cent between 1970 and 1990, the number of “line” prosecutors rose by only seventeen per cent. But between 1990 and 2007, while the crime rate began to fall, the number of line prosecutors went up by fifty per cent, and the number of prisoners rose with it. That fact may explain the central paradox of mass incarceration: fewer crimes, more criminals; less wrongdoing to imprison people for, more people imprisoned. A political current was at work, too. Pfaff thinks prosecutors were elevated in status by the surge in crime from the sixties to the nineties. “It could be that as the officials spearheading the war on crime,” he writes, “district attorneys have seen their political options expand, and this has encouraged them to remain tough on crime even as crime has fallen.”

Meanwhile, prosecutors grew more powerful. “There is basically no limit to how prosecutors can use the charges available to them to threaten defendants,” Pfaff observes. That’s why mandatory-sentencing rules can affect the justice system even if the mandatory minimums are relatively rarely enforced. A defendant, forced to choose between a thirty-year sentence if convicted of using a gun in a crime and pleading to a lesser drug offense, is bound to cop to the latter. Some ninety-five per cent of criminal cases in the U.S. are decided by plea bargains—the risk of being convicted of a more serious offense and getting a much longer sentence is a formidable incentive—and so prosecutors can determine another man’s crime and punishment while scarcely setting foot in a courtroom. “Nearly everyone in prison ended up there by signing a piece of paper in a dingy conference room in a county office building,” Pfaff writes.

In a justice system designed to be adversarial, the prosecutor has few adversaries. Though the legendary Gideon v. Wainwright decision insisted that people facing jail time have the right to a lawyer, the system of public defenders—and the vast majority of the accused can depend only on a public defender—is simply too overwhelmed to offer them much help. (Pfaff cites the journalist Amy Bach, who once watched an overburdened public defender “plead out” forty-eight clients in a row in a single courtroom.)

Meanwhile, all the rewards for the prosecutor, at any level, are for making more prisoners. Since most prosecutors are elected, they might seem responsive to democratic discipline. In truth, they are so easily reëlected that a common path for a successful prosecutor is toward higher office. And the one thing that can cripple a prosecutor’s political ascent is a reputation, even if based on only a single case, for being too lenient. In short, our system has huge incentives for brutality, and no incentives at all for mercy.