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Conversations with Coleman
Deadly And Dangerous Prison Conditions | John Pfaff (Ep. 6)
01:12:18
Coleman talks to John Pfaff, author and American law professor at Fordham University, about criminal justice, the true causes of mass incarceration and how to achieve reform.
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Welcome to another episode of Conversations with Coleman. If you're hearing this, then you're on the public feed, which means you'll get episodes a week after they come out and you'll hear advertisements. You can gain access to the subscriber feed by going to ColemanHughes.org and becoming a supporter. This means you'll have access to episodes a week early, you'll never hear ads, and you'll get access to bonus Q and A episodes. You can also support me by liking and subscribing on YouTube and sharing the show with friends and family. As always, thank you so much for your support. My guest today is John Pfaff. John Pfaff is a professor of law at Fordham Law School. His work has been covered in the Economist, New Yorker, New York Times, Washington Post, National Review, Slate, and Vox, among others. And he has a J.D. and a Ph.D. in economics from the University of Chicago. John, thanks for coming on my podcast.
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Thanks so much.
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B
Before we get into your book, which is excellent and it's called Locked in, subtitled the True Causes of Mass Incarceration and How to Achieve Real Reform. Is that right?
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It is. I can never keep true in real street, but I think, I think that's right, yes.
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B
Just give us a little bit of your background. How did you get into studying criminal justice?
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Yeah, I don't have a great origin story for how I ended up here. I was always sort of, I think I saw that always sort of fast about criminal justice, just in general for reasons there's no clear reason. It's not good. No. I grew up as a, you know, in a middle class home, sort of the kind of place that sort of completely removed from any sort of real criminal justice contacts. I don't really have any personal experience with it, just find it always sort of interesting. I remember in grad school what drew me to prisons at least was when I was in grad school, sort of trying to figure out what I wanted to write about. I knew something about criminal justice, didn't know what. And I was reading Chicago Tribune one day and it was like some like no. 2 paragraph article on page B74 was just after the dot com bubble had popped and said how the governor was going to close all these state prisons but it wasn't going to fire any prison guards. And that just sort of struck me as there was just something interesting about that, but sort of just from a like what exactly is the policy there? And so I started digging into it and once you start and realize there's a really fascinating sort of empirical question there. Sort of, how did prisons grow? Why did they grow? Like, the research wasn't very good. And then once you start, so it's initially just sort of more of a statistical interest in the question. And then as I spent more time on it, you sort of get pulled into sort of the more human side of the story as well and sort of been there ever since.
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B
Yeah. Well, what I love about you is that, you know, unfortunately, the issue of criminal justice is politicized, and you can predict, based on someone's politics, what their views on the causes of mass incarceration are going to be, which is, on its face, suspicious because it should really be empirical. And what I love about you is you seem to have a strong bias towards the empirical rather than towards either political side, which is so rare and so refreshing.
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Ah, well, thank you.
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B
Yeah. So big picture question, why do we put people in prison in the United States? And is the moral logic of incarceration here different than in other countries?
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I mean, it's a tricky question to answer. I mean, even just taking the second part. Second question first, is the moral logic different at some level? Yes. Right. You don't get to where we are compared to where Western Europe is at, a different set of attitudes. I think it's more a question of where exactly those attitudes come from. So one distinction, I think that separates Europe from us historically, although that's shifting now, has been issues, are racial diversity. Right. And so, you know, there's a strong sense that one of the things that fuels mass incarceration is a willingness to treat people of color, especially black people, differently and less well, and so are willing to default as locking people up rather than addressing underlying causes. Europe doesn't have that problem as much because they're much more homogenous. And there's some. It's not strong, but there's some evidence suggesting that as Europe's immigration population has grown, their punitiveness has grown as well. Right. So is it a different attitude? Sort of. Right. But it's partly fueled by different facts on the ground. And depressingly, it seems that if Europe starts looking more like us, they seem to start acting a bit more like us. Less so, but more. Right. And so even that initial question, is it a different attitude? It's hard to separate out sort of underlying ideology from sort of how that attitude interacts with sort of demographic realities on the ground.
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B
And where do you stand on the traditional moral rationales for incarceration, which is to say deterrence versus retribution versus just Sort of keeping a person from committing crimes while they're in prison. At a basic level, why do we put a person in jail?
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Right. So I generally don't talk about retribution because either you sort of believe that or you don't. If you believe that doing crime means you must be locked up in these conditions you lock people up in, then there's really. You believe that and that's what you believe. I can't push that. So I tend to focus more on sort of the public safety side, I would say, for the retribution side. I think it's important to understand exactly that people understand where we are sending our people to. Right. That is, the conditions which we can find people. Is that really what all these offenses deserve? I think people don't fully understand what our prisons are like and how awful they really are. But putting that aside, my focus is much more on the public safety perspective. And my general take there is that whatever amount of deterrence and incapacitation and rehabilitation prisons provide, there are far more efficient and far less costly ways to achieve all three of those in almost every instance than prison.
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Yeah. And speaking to conditions just in the past few months, I think the Justice.
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Department.
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Threatened to bring a lawsuit against the state of Alabama because the conditions in terms of frequency of violence, frequency of sexual assault, and the virtual impossibility of preventing those scourges, the Justice Department charged it with violating the eighth Amendment, which bans cruel and unusual punishments.
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A
Right. I mean, there are some photographs smuggled out of one of the Alabama prisons, and no one picture. It's horrific to see what an inmate had actually. The person detained in prison actually cut into himself to scrawl in blood on his wall like, I'm depressed, need medical help, I'm being ignored. Because he had no means to communicate that. So he wrote it on his cell wall in blood. Or more sort of systemic. You have the Alabama lawsuit. Also you have California, which was one of the few states that sort of find itself in recent years under federal judicial oversight for these horrible conditions. And California basically admitted in court that their system was so over constrained and their medical services were so inadequate that that they had about one preventable death every six days. That translates to about 60 preventable deaths a year at a time when our execution System executes about 30 people nationwide. Right. So California's conditions were killing more than twice the number of people as sort of the entire nation's death rows combined. They're really horrific.
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And the fact that it differs state by state is a big theme of your book. Talk a Little bit about how our misperception of the. That is singular criminal justice system shapes how we think about it.
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Yeah, I mean, that's a great point. I think it's realized that there's about four or five different overlapping systems. We have somewhere. We don't even know the exact number, somewhere between 16 to 19,000 separate police departments. And in most places, the police department. The police department reports to a police chief who's appointed by a mayor who's elected by the city or a sheriff who's elected by the county. Then you have a prosecutor and they're generally elected by the county and then. Which is a weird geographic border for them to represent. And then you have laws that are passed by legislators who are. I mean, they're kind of state officials, but maybe they represent like 17 towns upstate or like 17 square blocks in Brooklyn. Like they're kind of not quite state officials. And then you have a parole board that's appointed by a governor who's elected by the state. And so it's a very fractured kind of system. And the Fed sit on top of that. But they can't do much. They can give some money, although the impact of that money is understated. They generally can't enforce very much. They can only enforce federal crimes. And those are very narrowly defined. One of the more depressing things about Serial, I think it was the podcast Serial was that it created all this demand for a pardon. Everyone kept petitioning Obama to pardon this person. He eventually had to post something on the White House website saying, I can't. Only the governor of Wisconsin can issue a pardon for Wisconsin offense. It's just not what I can do. And none of these bureaucracies overlap with each other in a convenient kind of way or work together all that well. There's actually. Years ago, the DA for New Orleans was Harry Connick Sr. Jr. S dad. And he decided he was going to abolish plea bargaining or he's going to abolish plea bargaining to get around shoddy police work. So he's like, it used to be the police to bring you a bad case. This could be aggravated assault. But the police work is terrible. So they'd offer a deal like, if you plead guilty to this low level misdemeanor, we can sort of all put it aside, not deal with the police misconduct. And Connick said, I'm not going to do that. If it's a bad police work, I'm just going to drop the case altogether. So police, you have to do a good job. And when the first got reported, it was discussed sort of, this is a great effort to sort of undo bad plea bargaining to create more police accountability. And after Connick stepped down, they did sort of an audit of his office. They found it had done nothing. Right. That the New Orleans Police Department didn't care. Right. They were responding to the mayor and Connick senior responded to the county. Those are different jurisdictions. And NOPD basically said, we're still going to bring you terrible cases, do what you want. And so this idea that this is a coherent system where you can sort of move things around between various levels is pretty wrong. And each level is going to do its own thing for its own reason. I think another striking example that has a lot of bearing today is when New York State in 1972, 72, 74, passed the harshest drug laws in the country. The Rockefeller drug laws. They were brutal. And what's remarkable is that between 74 and 84, when New York State had the harshest drug laws in the country, the number of people in New York State prison for drugs went up by about 100 total. So for the first decade, we basically completely ignored the Rockefeller drug laws. Albany had passed these rules and I know Nelson Rockefeller had campaigned on them in an effort to distinguish himself from Goldwater and New York Police Department and the New York State, Manhattan, New York City, D.A. drive criminal justice in the state. They didn't care. Then from 84 to 94, 95, the number in prison for drugs goes up dramatically. So suddenly New York State in particular New York City started caring about the Rockefeller drug laws, but that's because they actually cared about crack related violence. And then as soon as the violence starts to drop, the number of people in prison for drugs starts to drop without any reform being passed at all. So you see these big legislative changes coming out of. We passed the Rockefeller laws, we reformed them, we basically abolished them. The actual number of people in prison for drugs is moving for reasons that are completely tied to New York City's internal politics and has almost nothing to do with what's happening in Albany. It's a very fractured system.
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Yeah. So we'll get to how prosecutors are really the key link in the chain that no one is talking about. But just for listeners, some basic context. The vast majority of incarcerated people in the United States are in state prisons, not federal prisons.
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Right. So we have about 1.5 million people in prison on any given day. And about 88% of them are in the states. About 12% are in the Feds. If you go down to the Jail population. We have about 750,000 people in jail at any given day, but about 10 million people who cycle through jails every year, of which probably about 5 million are unique individuals. About 5 million unique people cycle through our jails. Well over 90% of those are at the state, city, and county level. And for arrests, we make about 10 to 12 million arrests every year. And about 98% of those are by local or county or state police, but not by the. By the feds.
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B
So the subheading of your book is the True causes of Mass Incarceration. So let's just define mass incarceration for people, give a basic timeline. When did it begin, and when did our prisons begin ballooning? When did they peak? What's the story been in the past few years?
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Yeah. So mass incarceration is one of these frustrating terms that I don't know. When you go from low to middle to high to mass. Right. We kind of use to mean there's too many people in prison, which is true. And we should have fewer people in prison. Which is true. But what fewer means is unclear. Right. And for me, I think where that particularly matters is the state systems, again, which hold most of the people. Over half of all people in prison are there for crimes of violence. So when you talk about reducing mass incarceration, do you really mean dramatically reducing it, which means talking about homicide and rape as crimes you need to cut back on, or do you mean just cutting back on the drug and property offenses, which do something, but would still leave us with the world's largest prison population? Like, it's a nebulous term that I think people really do use in fundamentally different kinds of ways. And that can be kind of misleading in terms of the history of where we are. From the 1920s, when the data starts through the 1970s, our incarceration rate is higher than Europe's, but not by much. Around 100 per 100,000. It stays fairly stable. There's some bounces here and there, but it's roughly about 100 per hundred thousand. Europe and Canada, around 70 or 80. Like, we're higher, but not much higher. So in the 1960s, we see crime start to go up. And interesting, prisons actually start to go down as crime goes up in the 60s. And then around in the mid-70s, prison starts going up with the crime rate. We talk about sort of this explosion in prison populations, and that's not really true. It's actually sort of this just slow, steady, relentless rise from about 74 until it peaks in 2010. Although sort of rise is set in 2000 and kind of flattened out over the 2000s and starts dropping in 2010. One important thing to realize about that is that between 72 and 2010, all 50 states grew. From 2010 onward, only about half the states have declined. And about half of that decline has just been the state of California. Right. So. So the increase was this dramatic nationwide increase. And there's some variation across states. Right. But the entire country grew. This decline has been very much concentrated in California and then roughly across a bunch of other states. But about half the states are still growing. Yeah. So it's not nearly the same kind of systemic nationwide trend for the declines we saw for the increase.
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B
I want to flag one thing there. Isn't it true, I've looked at Bureau of Justice Statistics, that if you look by race, the black prison population specifically peaked way back in 2001 and has been declining since then, whereas the white rate kept on increasing throughout the Bush years and only started decreasing in 2010. Is that true? And if so, do you have a. Do you have a sense of why that is?
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Yeah, so that is true. I mean, it's important to put it in context. Right. The blackmail rate goes from around 2,000, I think, goes from around 2,800, 400,000 to around 2,400,000, which is still a rate of. A staggeringly high rate. Means 2% of all black men are in prison on any given day, and the white male rate goes from like 300 and something to 300 and something. Right. So. So the gap is still. Gap has shrunk, but it's still staggeringly large. We don't really understand what caused that decline to start earlier. I've started checking out a few things. I don't have anything concrete yet. It does look like, in general, the decline that we've seen even since 2010, in general, has been much. It's not really at states outside of California, which has this unique, weird history to it, we're not really seeing state declines. We're seeing county declines. Urban counties are sending fewer people to prison. Rural counties are sending more people to prison. And in some states, the urban decline outstrips the rural increase. In other states, it doesn't. And so the urban counties started declining sooner. And as a general matter, in many states, urban counties tend to have. Be more racially diverse. And so it seems like it's sort of tied to that general trend. But. And it seems like, you know, the more. The larger the minority population in the city, the larger its decline in incarceration for minority populations. And so exactly what's going on there isn't entirely clear, but it definitely seems to be a story of sort of much more local politics.
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B
What's the status of the hypothesis that the war on drugs is the main or a main driver of mass incarceration? And this hypothesis was most importantly popularized by Michelle Alexander's book the New Jim Crow. So what's the status of her thesis?
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Right, so in terms of simple numbers, the percent of people in U.S. prisons for drugs was around 5% or 5 or 6% in 1980. It peaks at around 20% in 1990. And then since then has declined to around 15% today in the state systems. And so it was never the dominant driver. And it's even more complicated than that for two reasons. One is that it's important to understand what we mean when we call someone as being imprisoned for drugs. What that means is that is the most serious offense for which they are convicted. It doesn't tell us anything about their arrested for or why they went to prison in the first place. So you can imagine we know there's some number of cases, we don't know how many. Someone who say, gets arrested for domestic abuse, he has heroin on him at the time of the arrest, his partner won't testify against him. And so the DA's decided that rather than try to force through a difficult aggravated assault charge with an uncooperated victim, we'll just charge make. If you just plead guilty to the heroin, we won't charge you for the aggravated assault, but we're still gonna demand prison time for the heroin because of the assault. And so you show up in prison as a low level nonviolent drug offender. But you're there because of that. Either that contemporaneous violence or prior violence on your record that we can't see. And so some fraction of that 15% aren't really there for drugs. We just don't know what that is.
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B
Do you have any sense of where it might be?
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None whatsoever. The other thing to realize also is oftentimes it seems like there's something somewhat very pretextual about the use of drug cases. So if you look at that trend in drugs, that spike in New York state talk about from 84 to 94 and then starts to decline. That spike in drug cases correlates almost perfectly with the spike in violence that came in the wake of crack markets. And its decline comes basically the time that violence started to decline. Which suggests at some level we were using these drug cases as a Way to get at violence. And you might object to doing that. Right. Either charged a person with homicide or not. Don't use the crack possession to get the person you might vaguely suspect is guilty of something more serious. But it suggests that the story is still more intimately tied to violence. What's particularly fascinating is over the 1990s and 2000s, as violent crime has gone down, as serious violence has gone down sharply, you think that would be the time that we would focus even more on drugs. Right. Because there's less violence, we have more police, less violence, there's more resources to dedicate to these more discretionary offenses. What we see actually is that at least when it comes to prison populations, the number of people admitted for drugs actually falls. The share of admissions goes down for drugs, it goes up for violence. Violence's share of prison populations grows. For both admissions and total population, we actually concentrate much even more on violence as violence is going down than we do on drugs. Which again points to something more pretextual about drugs. And so it's not irrelevant. Right. There are 250,000 people in prison on drug charges, many of them probably just for the drugs, not for this underlying violence. There are even more who have drug addiction problems that we don't treat because we take a punitive attitude to drugs rather than a medical attitude. Right. If anything, where it matters is not the drug incarcerations. It matters in that there's lots of other non drug crimes which have drug abuse at their heart. And we remain very firmly committed to not treating that as a public health problem. If the war on drugs matters, it's much more in that attitude than the actual arrest and incarceration of people for drug crimes.
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B
Do you have a strong position on whether we should decriminalize or legalize or neither?
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So certainly for marijuana, I think we should legalize. I defer to the experts in the field that legalization doesn't mean some sort of full libertarian, nothing, non regulatory approach. Right. Like there's a lot to be said for regulating. No, we regulate the use of alcohol. I think we probably, if anything, I think most public health people think we underregulate drinking. Right. So the same argument can be made for marijuana. I also know the people who study this much more closely than I do from a very specific legalization perspective. Do note, I think, correctly, that most of our research on marijuana's impact is based on research from the 70s and 80s when marijuana was much less potent than today. Right. And that's not an argument for criminalization, but it does mean that we don't fully understand the physical health sides of it. And any sort of narcotic substance has some potential for risk. But I think using criminal justice to regulate it is not the right approach. Do we apply that to meth, lsd, crack, heroin, cocaine? I mean, there's an argument that we could treat them in a much less punitive approach. I think that's a much harder political step to make and I think the public health implications are less clear. But I think it's certainly, I would certainly be in favor of seeing where the research points on sort of non criminal approaches for even the harder stuff.
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B
So the true causes of mass incarceration, one of the false causes in your view is the war on drugs. Although there is much to change about the war on drugs.
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Yeah, I wouldn't say false. I think, I think the way I try to frame what I'm saying is that the things I'm criticizing, they all matter, right? There is a war on drugs. We take a punitive attitude towards drugs instead of a public health approach. And that has real cost to it. And it's not just there's something else that matters more. It's that by focusing on drugs, we actually actively undermine focusing on the other thing, right? And so it's that each of the things I criticize, I criticize the war on drugs, I criticize our look on public prisons, I criticize violence, drugs, our focus on sentencing rather than prosecutors in all cases, drugs, private prisons, sentencing, they're all bad. They're all things we could do better, but by focusing on them, we ignore something. So violence for drugs, for example. My real criticism with drugs is that there's actually a survey that FOX did. It came out just in my book, was like about to go to print. So the editors wouldn't let me destroy the page counts to put it in. They did this big national wide survey and sort of what do you think about criminal justice? They broke it out by liberal, moderate and conservative. So one question was do you think a majority of people are in prison for Drugs? And about 65% of all people said yes. Majority of all three groups said yes. About half are in prison for drugs. When it's really 15%, not 50%. That's a problem, but you can address that. Then the question that I think is connected to that that's so problematic was one of their next questions was for someone who's been convicted of violence but poses little to no risk of reoffending, should we punish those people less? In about 60% of liberals, about 70% of conservatives said no. Right. And what I think has happened is that we've convinced ourselves that we can decarcerate by just focusing on drug and property cases. And so we don't have to talk about the difficult violence cases. We don't have to talk about how do you handle murder and rape and aggravated assault and armed robbery. And so it's not that we talk about drugs and don't talk about violence. We talk about drugs in a way that makes it hard to talk about violence. Right. We often draw this distinction, nonviolent versus violent. Even though people cross those lines all the time, we frame it as nonviolent. People deserve some sort of relief. Violent people don't, which is there's a whole host of problems even framing it that way. And so my concern is that, yes, the war on drugs is bad, and it's had bad implications, and there are too many people in prison for drugs. We have to talk about that in a way that doesn't throw the violent crime issue under the bus.
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B
Yeah, I like the way you bite the bullet on this issue, because I think most people agree definitely on the left and increasingly on the right, that we have too many people in prison. And actually changing that requires taking a different attitude towards even the worst offenders. Perhaps not the worst of the worst, but people who have assaulted people. You know, it's possible that we're actually being too punitive with those people. And that's the hard conversation, the easy conversation is to say, let people out of prison who got caught with a little bit of weed on them. That's easy and true.
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Right.
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But there's this harder conversation that it's distracting from.
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Right. And in fact, I would say for weed, about 1% of the prison population is in for weed. Right. No one's in prison for weed. Jail might be slightly different. Pretrial detention, misdemeanors, but felony prison sentences, no one is in for weed. And, you know, and you know, we have to talk about the worst of the worst. 25% of our entire prison population is just murder, manslaughter, and sexual assault. Right. That 25% alone gives us an incarceration rate that's higher than most European rates for all offenses. And so if we really want to, like, cut 50, cut 60, cut 70%, which is, if we aspire to sort of get back to where we were in the 70s, we have to let people out for murder and for rape and for armed robbery, like, for real crimes. You know, if you look at the people serving the 10%, longest sentences, 95, 98% of them have been convicted of a serious violent crime. And as the more and more, the longer and longer for prison, it gets closer. More than half of them are in just for homicide, like we have even. And I appreciate that the person today sitting down with a legislator in Texas or Kansas can't pass the push for like, no, the let murders out early bill. But I view my job as sort of the one and other, like, sort of people who aren't lobbying day to day to try to push that Overton window a little bit. So we actually really start actually talking about violence.
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B
Yeah. Do we incarcerate people for too long in the United States?
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A
From a public safety point of view, absolutely. In fact, one thing I push back against is the use of this term violent offender. It's a really dangerous term and very hard to kick. In fact, in my book, I say don't use this term. And every time I do a round of edits, I find that I snuck it in somewhere without even thinking. And the reason why I don't like that word is it suggests that violence is a state. This person is violent, that person is not violent. And that's just wrong. Right. We know the fact that people tend to age into violence but also age out of violence. Right. That someone in their 40s is less violent than someone in their 20s. Their. Their hormone levels have changed. They, they're wiser, they're calmer, they're older and slower. Right. Even if I was just as violent now as I was in my 20s, like, everything aches and hurts now. I'm 44. I move slowly. Like, it's just. Life is painful now. I don't want to get in a fight and I'm tired. I just want to go home and take a nap. And so the stack of research on this is miles high, that people age in and age out. And we tend not to acknowledge that. In fact, someone told me what's in Pennsylvania, the median age at which we imposed the third strike for that life without parole, not that of those serving which the actual judge says now you're going to go to life is 40, which is right when you're no longer that person that you were before and at an earlier age. Conversely, we're really bad at predicting who at 18 is going to offend until they're 40. Upfront, we don't know who's going to offend for a long period of time, who's going to offend for a short period of time. And once they get older, and finally have all that data on prior records. That's just about the time they're going to stop being that person and start aging out. So yeah, from a public safety point of view, these long sentences provide no real benefit. It's worth pointing out just the attitudinal difference we have between other countries. DC right now is debating how to address this resentencing law they have. And the law in the books right now says that if you're convicted of a serious crime when you're 18 or younger and you've served at least 20 years of your sentence, you can petition to be re sentenced, which might give you a better shot at parole. The reform law they're trying to pass is shift the cutoff from 18 to 24 and change the amount of time spent in prison from 20 years to 15. That's it. Even the Washington Post editorial board came out against this saying people have only served 15 years. Right. This is problematic. And so I looked it up and in 2012 in Germany, which is the last year I saw data for it, there are exactly 96 people in the entire country who've been sentenced to more than 15 years in prison. They could write each of their names on a single piece of paper. Or in the Netherlands, 98% of all people who go to prison are out within four years at tops. Most are out within six months. And so this idea that, well, if we don't lock you up for 30 years, that's not going to work. It's a very American thing. Another example is in Finland. Finland or Norway can never keep it straight. There's Anders Brevik. One of the worst mass murders in world history. He murdered 75 people, including 60 kids at a political camp on an island. He got the maximum he could get, which was 20 years with pro eligibility in 10. He faces lifetime confinement on a protective basis. But that's sort of annual review. But his criminal sentence was maximum of 20 parole and 10. And most of the victims families said they were okay with that. They didn't need his life just completely locked up forever. They were just used to these lower sentences and that was viewed as okay. We are just. Our sense of what is required is profoundly more punitive than any sort of data suggests and than any other most other countries in the world even think is necessary.
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B
What's your view of private prisons and the so called prison industrial complex?
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A
Right, So I think first when talking about privatization we want to separate out two pieces, right? There's the actual like core civic Geo group, right. Who actually run the facilities, right? Actually open prisons, run prisons, manage prisons. And to put them in perspective, they hold about 8% of all prisoners are held in these private facilities. About half of those, about half of all private prisons are held in just five jurisdictions. And there's no evidence that those jurisdictions saw any different outcomes than ones without private prisons. We spend about $3 billion a year in sort of the revenue that they take in. So amount we spend giving them is about $3 billion a year in comparison of the 50 billion we spend on state level corrections every year. About two thirds of that, about 30 to 35 billion of that is wages that go to public sector employees. So the private prisons make about 3 billion in revenue and about 300 million in profit. The public sector is making $35 billion just in wages. And so the political demands are going to be much stronger coming from the public sector than from the private sector. New York State, for example, New York State's actually an interesting case because we actually have the longest sustained decarceration in the United States. New York and New Jersey both started shrinking in 1999, solid decade before the rest of the country. New Jersey has the largest percent decline during the time. New York City has the largest total decline. We shut about 25,000 prisoners since that time. Yet during that same period, with no private prisons in the state at all, at the adult level, our prison budget rose by almost a billion dollars. And we couldn't close a single prison because the guards lobbied really hard to keep these public prisons open. Right. They have a very vested interest. Oftentimes being a prison guard is actually a horrible job. The levels of like suicidal ideation amongst prison guards, it rivals that of combat veterans who have seen active combat. It's a terrible job, but oftentimes it's the only job in that committee. And they're going to fight really hard to keep the one decent middle class job there as well, the legislators who have these prisons. And so the private sector there doesn't do much. I think it's also worth noting that you can't get into the private prison until you've gone through the entire public system. Right. You need a public police officer to arrest you, you need a public prosecutor to charge you, you need a public judge to send to you. Your charge gets sent to a publicly run do Department of Corrections. And then they decide at the last step to send you either publicly run or privately run facility where the private contract is being signed by public officials. Right. So it's not like we sort of privatized Corrections. Right. It's that we sort of paid that last step differently. The other piece that we talk less about, more so now, but less so is not the people running the prisons, but the private contractors inside the prison, people who run the phone system, the people who run the commissary. Right. And there maybe there's a bit more to be concerned with. Right. They charge incredibly exorbitant prices for, like, deodorant or phone calls. They're trying to make a profit off that in ways that perhaps impact the prisoners lives in a much more immediate kind of way. Still, they're a relatively small player. Like, we talk a lot about, you know, these sort of the private healthcare systems that do a terrible job in. In prisons, and they do. But still, a majority of all prison health care is provided by the public sector. And plenty of those public sector health care systems are also terrible. The California system that was killing six people every day, entirely publicly run. Right. And so again, and there's no real evidence that the privates and the public one's any better or worse than the other. Right. There's some studies point one way, some studies point the other way. On average, the sense is that there are really good public facilities and horrific public facilities. They're nightmarish privates. And actually, some people say the best prisons they've ever seen have been privates. In Florida, for example, for years. They've changed their website now, but for years, the state Department of Correction had a FAQ page like 10 facts and myths about Florida's Department of Corrections. And myth number one, the very top thing I think they wanted to make sure you definitely saw was, don't worry, our prisons don't have air conditioning. Here's a limited number of places we have air conditioning. Don't worry, we're not spending money to keep Floridian prisoners air conditioned. And then a really small print at the bottom, they say, except all of our private prisons are fully air conditioned. So apparently in Florida, it means actually people being sent to prison would fight to be sent to private prisons because they actually would get air conditioning. And, you know, in places like Texas and Florida, people die every year from heat exposure. Right. And so this idea that there's these horrible privates here and these much better publics there, the publics are terrible, too. And it's kind of a distraction.
- [34:16]
B
Yeah. So the thing that's not a distraction that we should be focusing on much more, according to you, is prosecutorial discretion. What does that mean and why does it matter? And how do we know that it's the main driver of mass incarceration.
- [34:32]
A
Yeah. So what I discovered, and this is one of these times where I was surprised by my own results, is as sort of looking at most studies, trying to understand prison growth, look to sort of trends in crime, trends in arrest per crime, and then they look at trends in prison admissions per arrest, and that always seemed to be really important. But prison admission per arrest is really strange because to get to prison admission, you have to be not arrested, but you have to be charged. And they have to be convicted, they have to be sentenced, they have to be admitted. And they skipped over. They allotted all those steps together, and they did that because we don't really have data on prosecutors at all. So they couldn't really see it, so they sort of jumped over it. And so I came across this data set that looked at actually felony cases filed in court. That's something prosecutors completely controlled. And it ran from like, 94 to, when I looked at it, around 2007, 2008. So this really fascinating period of time where crime was going steadily down, arrests were going steadily down, and prison populations are going steadily up. And what I found is that crime goes down, serious arrests go down, felony cases go way up. And then admissions kind of stay in lockstep with felony cases. Right. So the chance that you go to prison once they file a felony charge against you doesn't change. But the chance that your arrest turns into a felony charge practically doubles. And so that suggests something that the prosecutors are doing. They had this shrinking pool of arrests, and they were sending an ever larger number of them into felony court. And that explains a huge chunk of the prison rise over the 1990s and 2000s. The amount of time spent in prison, at least outside of homicide, doesn't rise that much. But this admissions part rises, and it rises because of the da and we don't really fully know why yet. In some ways, I think the most interesting explanations are probably the most boring. That's a common theme to my work, that the boring stuff matters the most. I think it matters the most because it's boring. It's allowed to persist.
- [36:24]
B
Yeah. I think there's also the story about. So you're describing these kind of four links in the chain, deciding whether someone goes to prison and for how long. One is the police arresting you.
- [36:37]
A
And that goes down. Well, first you need crime, right? You need the crime to happen.
- [36:40]
B
You need the crime to happen.
- [36:41]
A
And that goes down over the 90s and 2000s.
- [36:42]
B
And then there's whether or not the cops are arresting most crimes and the.
- [36:46]
A
Chance of being arrested stays the same. So that the roughly the same. So the number of arrests goes down, so fewer.
- [36:50]
B
We know that link in the chain is not causing mass incarceration. Then there's a second link which no one even thinks about. Well, first there's a third and fourth link which is whether you get convicted of a crime.
- [37:01]
A
Right.
- [37:02]
B
And for how long, both of which people think about. But there's this sort of invisible second link which is probably a public prosecutor deciding whether he's even going, he or she is even going to press charges. And that's the thing that has changed most in the past 30 odd years.
- [37:21]
A
Right. Or at least I can see it changing from the 90s to the 2000s. I don't know what's going on in the 80s. I just don't have data going back that far.
- [37:30]
B
I think the problem, one of the reason is that that has no traction is that doesn't have a clear political implication for either side. So people just ignore it because, you know, there's, it's not a fun thing to talk about. It's sort of wonky, but it's a huge issue.
- [37:50]
A
Right. I think it's lots of things, I think it's that, I think it's. We just don't gather data on what prosecutors do. So the numbers just aren't there. And so we tend to overlook the things. We don't count someone else. This guy, David Sklansky at Stanford has argued, I think there's a lot to this, that what we ask prosecutors to do is very complicated. Police have a very simple job and after conviction, judges have a very simple job or prosecutors. We ask them to do a lot. They're both, I mean, unique amongst lawyers in the United States. Prosecutors take a completely different oath. Ethical obligation, Right. For every other lawyer in the country, your ethical obligation is to represent your client as aggressively and forcefully as you can. Prosecutors, public prosecutors take an oath to do justice, right? Their goal is not to just their ethical obligation, regardless of what their political, their employment goals are, but their ethical obligation is not to get a conviction, do justice, which is this much more amorphous, harder to pin down kind of thing. And so, yeah, so we've overlooked them. And I think we also though overlooked them just because we didn't have data on them. So it's hard to see what they were doing. And so now that we see it, I think we've seen this greater attention now being paid to prosecutors. And to be clear, people, well before my work Understood prosecutors were hugely important. I think it was just we didn't quite see how starkly important they were and where in particular their decision was driving. It wasn't that they were choosing to impose longer sentences. They're choosing to push more arrests into the felony system altogether. I think that was the part that was somewhat surprising to see, you know, as to what has changed, the best thing I've been sort of the most. There's a lot. But the piece of strike me as perhaps being the biggest is kind of weird result I've seen is that between 1970 and 1990, as crime went way up and as arrests went up and as the system started doing more, we didn't really hire that many more like line assistant DAS. It goes from like 17,000 to 20,000 nationwide. From 1990 to 2007, as crime goes down and arrests go down, we go from 20,000 assistants to 30,000 nationwide. So we hired three times as many as crime is going down. And while we don't have any good metric of DA productivity, every sort of proxy I can use sort of tells the same story, which is that the average ADA sitting at her desk today is no harsher than that same ADA in 1990. We just have 10,000 more of them. Right. And if we make 12 million arrests and admit 600,000 people to prison, like, you can always find a case to charge to keep your numbers up so you justify your position. Right. And it's sort of this bureaucratic story, which in many ways, I think drives home. I think what's in many ways, I think an underappreciated point is that you can, and I do talk a lot about all these policy failures, like these structural breakdowns that drive it, but in many ways, it's an ideology. Right. We chose to pump money into prosecutor offices to help them hire more assistants even as crime went down, rather than putting that money somewhere else. And so as much as that's a policy failure in sort of the short and sort of the narrow approach, it's actually, I think, a big, more broad indicator of a broader sort of political moral decision that drives the process.
- [40:52]
B
So a very interesting part of your book was the comparison of how much we invest in public prosecutors compared to how much we invest in public defenders. And part of the story is not just that we hired way more prosecutors even as crime was plummeting, but that their relative advantage compared to public defenders is pretty immense. Talk about that a little bit.
- [41:21]
A
Yeah. And so I would say I have no idea if that relative advantage has grown or Shrunk. Our data on this is so thin. I just know that as around the late 2000s, which is the last time we have good data, it was big. And so at the simple numbers we spend at that, in around 2007, 2008, we were spending around 6, 6 or so billion dollars a year on prosecutors, and we're spending about $4.5 billion on all forms of indigent defense. So, public defender office, so state. There's a huge variation in how states and counties do it. Some states have, like, formal public defender offices. Other places the courts will just appoint lawyers and pay them to take on cases. You have places like New York City where we have public defender offices, but they're actually private groups contracted with the city. So, no, Brooklyn Defender Services, it's not actually a government agency. It just has a government contract, but are basically like public defenders. And so. And these indigent defense lawyers, whether the public defenders or appointed counsel, they represent about 80% of the people who are facing prison time or serious jail time, right? So they take on almost all the cases, qualify as indigent. And so you start off initially with this budget gap. About 4.5 billion on one side for the Defenders, about 6 billion for the Prosecutors. But the real gap is actually far bigger than that. There's actually a report, the study I saw looked at just North Carolina, because the North Carolina Office of Engine Defense did the study, because in North Carolina, the DA budget and the public defender budget were the same. And the public defender, the DA's actually said they objected to that because they have to handle 100% of all criminal cases. And North Carolina works out that the public defenders handle about 50 or 60%. And so in some ways, they thought budget parody was unfair to the prosecutor, not to the public defender. And what the Office of Indigent Counsel found was that, well, hold on a second. They said, you know, when you. The DA want to do an investigation, you call the police and the sheriff and they do it for you for free. When the public defender wants to do an investigation, they have to hire an investigator to do it. When you want a sample DNA sample tested, you send it to the state lab that does it for free. The public defender has to send it somewhere and pay to get the sample tested. If you add in all the free services, the prosecutors get that the public defenders don't. It goes from being parody to the prosecutors having a budget triple that of the public defenders. And so in many ways, the numeric gap doesn't begin to tell the story of the actual reality gap between resources.
- [43:45]
B
They have and you tell one among many heart wrenching stories. I think it was South Dakota, but there were perhaps a few states like this where if not most, where if you're poor and you're accused, arrested for a crime and you didn't even commit the crime, or you have a good public defender gets you off, you have to pay for the public offender's time. And if you can't pay it, that's a crime.
- [44:10]
A
Right.
- [44:11]
B
I mean, that sounds like it's a paradox.
- [44:14]
A
Yeah. So you have to pay. There's some sort of fee associated with public defense in 40 some states. In some cases it could be like you have to pay a fee to apply to be considered indigent.
- [44:26]
B
And by the way, you have a constitutional right to a public defender.
- [44:30]
A
Right.
- [44:30]
B
So then you are sometimes forced to pay for that constitutional right.
- [44:33]
A
Exactly. Or to pay to see if you qualify to have the state fulfill it for you or not. Or pay for it once it's provided. Because the Supreme Court opinion, Gideon basically says you have this right, but doesn't lay out exactly what that means. Right. They sort of tell the state you have to provide it, provide no other details about how to provide it. And they've never really been willing to address that issue substantively ever since. There have been Supreme Court cases about the quality of injured defense. But they always focus on sort of this. It's called the Strickland Standard. It's about like, is the representation in this case sufficient or not? They never address these broader structural issues like how should states fund it. So in 40 some states you have to pay. Maybe it's a filing fee, maybe it's like South Dakota, you have to pay by the hour. Some states you can waive it. Some states they can't. And then in South Dakota is a particularly egregious case where they then make, I think it's like 80 bucks an hour for your public defender, and then you have to pay it even if you're acquitted. And failure to pay itself is a crime. Not every state is that bad. No. But yes, we make it very, very hard to actually exercise this right. And we tend to systemically underfund the offices, so they tend to be kind of overwhelmed kind of all the time with just ridiculous caseloads. It's a very. It's not a right we've consistently taken seriously at all.
- [45:52]
B
What's your opinion of cash bail? There's a big push to get rid of it in many places. What's your take?
- [45:58]
A
Yeah, I Mean, as a general matter, you know, I think cash bail oftentimes is used in particularly abusive kinds of ways. Now, when you impose a $10 cash bail on someone, you're basically trying to lock them up for being poor. That's the only reason a $10 bail can possibly mean. And so I think a move away. And sometimes you hear places say that we are the only country that has cash bail. Us in the Philippines. That's not true. US and Philippines are the only country that have the private sector involved in cash bail. Other countries have it, but it's entirely run by the judiciary system, not by private. Private actors have no say in it. I mean, I think moving away from cash bail is important. I think it's also important to think about what we replace it with. Right. And so that's been the big controversy in California. They just passed this big bill law reform. They've abolished cash bail, but in the process, they've also expanded the ability of judges to detain people pretrial with no chance of getting out whatsoever. Right. So it's possible that in abolishing cash bail, they're actually going to increase the size of the jail population. Right. And I think it's important to remember when we impose bail, this is something we're putting on people who are presumed to be innocent. Right. And even three or four days in jail, you lose your job, you can be, you know, income hits start appearing, you can be physically or sexually assaulted. Right. There's a lot of costs that come from this on people who are legally supposed to be innocent. And I think, you know, we tend to over rely extensively on jails as a way of detaining people. We assume that, well, if we don't lock them up, they won't show up at trial. But the evidence suggests that's just not true. In fact, someone. I haven't seen the underlying report, but someone claimed that there's a study in New York showing that people not detained showed up at court more regularly than those on Rikers because Rikers is so incompetent they actually couldn't get people to their court dates. So you're actually more likely to show up at your trial if you're not detained than if you are in New York City, apparently.
- [47:49]
B
I mean, that suggests that we should just get rid of it. Get rid of pretrial detention wholesale.
- [47:54]
A
I think there's a lot to be said for that, especially in a place like New York State. States vary, but New York State, legally speaking, you cannot be detained pretrial based on Riskiness, it's only about likelihood of appearance. And so maybe there's some extreme egregious cases. Like maybe you think there's no way you can keep a Manafort or someone like locked down if you don't. But no, 99% of the cases, they're not going to go anywhere. Most people have a lot of places to go they're not going to run. And there's plenty of other intermediate steps where one can try to attempt to use that. They're probably far more efficient and far less efficient.
- [48:29]
B
It almost seems like the logic is backwards. Like with poor defendants, you shouldn't keep them in jail pretrial. But with very wealthy defendants that are going to flee to Mexico or somewhere that doesn't extradite, that's exactly the case where you want to, right?
- [48:45]
A
Yeah, that's probably true. And I think you can see how that plays out, I think, in the way we covered this effort to bail people out from Rikers last year. So last year, around October, November, the RFK Human Rights Fund said it was going to bail out every woman and person, child under 18 from, at that point Rikers. The 18 year olds there got moved to another facility. And when they announced this, a huge protest erupted from the law enforcement side. The New York Times had an article, it's like 18 paragraphs long, so it's not like a little Square Squibb thing. Talking to police officer. No, police chiefs. And talking to all five prosecutors in New York City. He was talking to public defenders. What was remarkable about this debate is the police, the DAs and the public defenders, their entire debate was about safety issues. This is gonna make things more violent. This is not gonna make things more violent. These people pose a risk. They don't pose a risk. Two things that never came up in the entire article. No one pointed out that even the public defenders didn't point out that that discussion was inherently illegal. Right. That dangerousness is not something you're allowed to consider in New York State. And so the very fact that the DA's were saying dangerous people will be released meant the DA's were all publicly admitting that they take dangerousness into account when they're not allowed to do that. No one commented on that. But more important is that the debate was entirely about what did this bailout mean to me and us, right? The people outside the system. No one, not a single person. Even the public defenders, at least they weren't quoted. Maybe they said this, but they weren't. It didn't make the article talk about what Would it mean to this mother to be home with her kids for a month? What would it mean for this 18 year old to be able to go to high school for the next couple weeks to be home with his family over like Thanksgiving or Christmas, like their lives didn't matter. Right. And then you get to the end of this bailout and they said they're bailout 800 people. They only bailed out like 200. No one quite knows what happened. And you have this another like 18 paragraph article about bailout. And the entire theme of this article was look like nothing went wrong. We bailed out 200 people and there was like one misdemeanor re arrest and everyone else was fine. So I guess we're all okay. And again, no one said, like, what did it mean to these people to be home and off rikers for like a month or two months, or to be home just in general, like they just didn't exist. And to me it was really striking. Like we had this whole discussion with bailout and no one talks about what the bailout means to the people bailed out. And I think it's microcosm. So how we think about like the people in the system, they're not there, they don't really exist. And it allows us to do, I think, really horrible things as a result.
- [51:11]
B
So one of the most interesting points in the book was about this sort of seemingly again wonky issue about the census and how it interacts with Republicans and Democrats. So how are prisoners counted in the census and how is that used by Republicans and Democrats?
- [51:32]
A
Right. So it's an interesting question to ask if someone's in a prison, where do they live? Do they live in the prison or they live in their last known address? And it matters when it comes to how we draw our legislative districts. And so in two states, people in prison can vote Maine and Vermont. In the remaining 48, they cannot. And in 43 of those 48 states, they count as living in the prison, not as living where they came from. In the other five states, it's five now, might be sick soon. They count as living at their last known address before being incarcerated. That matters because across the country, our prisons tend to be located in more rural areas. So they're located in whiter, more conservative, more rural parts of the country. But they tend to be, they tend to hold disproportionately black and brown people who tend to lean Democratic and who tend to come from more democratic urban areas. But they can't vote. Right. So it is. And you Know, I use this term intentionally. It's like a five fifths compromise, right? They cause five fifths of a person with zero fifths of a vote. And if we've effectively transferred about 1.5 million people from more Democratic areas to more Republican areas where they count for representation but have no say in what happens there. And there are studies, it's clear that all across the country, there are state legislators, Republican state legislators who are holding onto power entirely because of the prison in their district. There's actually a fascinating map. Someone did the census where they did a racial map of the census where each dot represents a person and they color code it white, black, Asian, and Latino or other. And you can literally basically see prisons from space. Right. You know, blue dots are white, green dots are black. And so you see all over the country, there's these areas of sparse array of blue dots and then this bright green box in the middle of it. Right. And that's the prison. And so one study from Pennsylvania, for example, found that if you were to count people as living at their last known address, not in the prison, at least five legislative seats would shift from rural Pennsylvania back to Pittsburgh and Philadelphia. And those five seats almost certainly swing from Republican to Democratic. Right. And so it's not surprising the five states have gotten rid of what this is called the prison gerrymander. And the five states that repealed it are California, New York, Maryland, Delaware, and now Washington state, with New Jersey coming along probably next. All five of them did it when the Democrats controlled the Senate, the House, and the Governor's mansion. It's the only way it can happen, because otherwise it's Republicans voluntarily undermining their electoral chances. And of course they're not gonna do that.
- [54:10]
B
Yeah. When I read this, I actually also thought of the slavery analogy. And I think I have cred at this point as someone who wouldn't reach for a slavery analogy, Willy nilly having testified against reparations for slavery in Congress. But it really is analogous, not in the sense that prisons are the same as slavery, but in the sense that, you know, like these people can't vote, but are being used in place by politicians whom they overwhelmingly would not vote for if they could vote.
- [54:43]
A
Right.
- [54:44]
B
Which is really bizarre and not often talked about in the conversation about gerrymandering in general.
- [54:49]
A
No, no, it's not. And it's starting to get some attention now. The fact that both New Jersey, Washington, just this past year, New Jersey, I think coming up there is some attention, but it does take this Democratic trifecta to fix It. And those are definitely not common in the country these days. Yeah.
- [55:06]
B
So that kind of leads into the question, are you aware of the documentary the 13th by Ava DuVernay? And I guess the larger narrative that the criminal justice system is racially biased, There are versions of this. They're like the strongest possible claim is that it's almost conspiratorial. And then on the other side, some people believe there's no racial bias problem whatsoever. Where do you stand in that spectrum?
- [55:42]
A
Yeah, so I would say I kind of. So there's a book by this guy, Michael Tondrew. The title, I think is really powerful, which is called Malign Neglect. And his opening premise is that oftentimes our laws might not be passed with specific desire to bring about racial harm, but that once we realize that's what they're doing, we don't care about it. And I think there's a lot to be said for that. Right. That the system of sort of city, police, county, da, state, parole, state, no parole boards, there's no one actually running this. There's no one in charge. And so we will say the system does what it's designed to do. My response is it wasn't really designed as a whole to do anything. It's a patchwork of sort of poorly designed things that have changed over time for various idiosyncratic reasons. But I think to catch that once we see the very specific racial harm they're doing, we could fix it. And we don't. And we don't because we're kind of fine with that. Right. And so it's less like a top down. We designed it to be malicious and more of a bottom up. We see the malice and we're fine with it. And so we let it persist. And we actually might appreciate it once we see it, but it's not necessarily intentionally top down designed for that. So, I mean, that's sort of where I come in, sort of the conspiratorial part. I think race plays a huge role. I think that the best part of the 13th, the second half of the 13th, that I struggle with, because it basically blames private prisons, the federal system, and the war on drugs, which are the three things I say don't matter. But the first half of the third dance, I think, is hugely important because that's where she actually brings in this idea of a certain. There's this professor at Harvard, Khalil Mohammed, who has this book called the Condemnation of Blackness. And his theory, and I think it's right, is that we tend to view failures in the black community sort of when a black person does something wrong, you can see that Islam as well, right. That's a community failure. Right. There's something that that person's crime reflects a broader systemic social failure of the group he comes from, which we don't do. The white people. Right. White mass murderers are lone wolves, right. Islamic someone who's Muslim in a mass murderer is clearly a terrorist. Right. And when a black person commits a crime, it's a signs for a black communal failure. When a white person commits a crime, it's like individual pathology. I think to me the most striking example of this was when Dylann Root committed mass murder. Right. Clearly racially driven hatred in South Carolina. Some either like Newsweek or Time or something that said like no, somehow he was self radicalized. Right. It wasn't there some sort of broader environment that would cause a white person to instill his incredibly vile racist attitudes. It just sort of happened to him somehow. Right. Which was if someone, if someone, if instead of being Dylann Root he'd been done as been a Muslim shooter. Like we talk all about sort of the communitarian implications for how we ended up like this.
- [58:26]
B
Right.
- [58:27]
A
And that does play a role, right. Like we tend to react in a much more heavy handed way towards those social pathology amongst minorities because we tend to view it as a systemic collective failure in a way we don't impose it on white people. That said, if we were to view white men as their own country, their incarceration rate would still be higher than most European countries. Incarceration rates. Right. We are incredibly brutal to everybody. Right. But you know, it's 300 per hundred thousand for white men. It's 2,000 per hundred thousand for black men. Right. It's still orders of magnitude practically different. And so it matters. I think it's just important to think care of exactly how it matters. I think when you sort of see, I think the power the condemnation of blackness hypothesis is, it helps us understand exactly sort of some of the less conscious ways in which race is playing a really powerful role.
- [59:16]
B
I think I would agree with his diagnosis that we're more likely to view a crime by a black person as a general problem with the black community. And I'm certainly open to that. Racism is part of that reason. But isn't it also, I mean when you're talking about the differences in crime rates between white communities and black communities, there's a level of crime at which it becomes cogent to talk about it as a community level problem. And there have been times. I mean, certainly perhaps not as recently, but still perhaps in some places in St. Louis and south side Chicago, where it actually makes sense to talk about it as a community phenomenon. More so just because we're talking about an order of magnitude more homicides than in white communities.
- [60:09]
A
Right, sure. It's a question more of try to, once we see that, what lessons do we take away from that? Right. You can view it as sort of cultural failure. Right. Or you could view it as there are other broader outside reasons that have caused the social pressures that exist inside those communities. Right. And so, you know, we tend to use, you know, Chicago is this reference, or a general sort of black community cultural failure, not like, let's try to understand why it's happening. Right. And so, yes, crime is certainly concentrated in racially problematic ways. Although it's also, if you look at the National Victimization Survey, the actual gap in terms of violent victimization between whites and blacks is actually not all that much different, statistically speaking. So the homicide rate is hugely different. The actual underlying non homicide violence rate in the survey at least is actually much closer than that narrative suggests. But the question I think becomes, what do you do with that fact? I think too often this is the Jim Foreman locking up. Our own theory is that we can view it as sort of a broader social pathology that is unique to black communities or understand that those communities have been systemically underserved for so long that a white community with those kind of pressures would act in the exact same kind of way. I think oftentimes we don't make that connection. We view that East New York needs policing because there's something wrong there. Park Slope doesn't, because there's something right there and we don't understand. Well, that's because Park Slope has all sorts of resources that East New York does not have and that if you took someone from Park Slope and dropped them to spend a whole lot in eastern New York and flipped it, their lives are going radically different directions.
- [61:43]
B
Yeah. A few rapid fire questions. What do you think of the ban the box initiative?
- [61:49]
A
So it's not a topic I've studied closely, which is.
- [61:51]
B
And maybe just describe it.
- [61:52]
A
Yeah. So ban the box. Is this idea. Lots of places require you to check a box. Like, have you ever been convicted? Have you ever. It varies. Have you ever been convicted of a felony? Have you ever even been arrested for anything other than a parking moving violation? Some sort of permanent indication of your felony record? And so is this push to say, okay, let's ban the box so that on the upfront application, you don't have to put that down and then at least get your foot in the door and you can try to make the case for yourself rather than have it be an exclusionary rule from the jump. And the reason why I stress I don't study closely is the results here are actually kind of complicated. And there's a tremendous amount of debate right now amongst criminologists and economists about what happens. But there's been some studies suggesting actually that banning the box has made things worse for, for black male applicants. Because before, without the box, employers go back to using race as a proxy or criminality. Right. And so in fact, black employment drop. Black applications actually drop because, well, I don't know who is a criminal who has a record who doesn't. So I'm just gonna assume all black men do. So I'm not gonna hire any black.
- [62:49]
B
Men or all black men from a certain neighborhood who talk a certain way.
- [62:53]
A
Right.
- [62:53]
B
Cause I mean, like even in the highest crime neighborhoods, most black men are not committing crime.
- [62:58]
A
Right.
- [62:58]
B
But they might talk similarly, dress similarly to black men who do.
- [63:03]
A
Right.
- [63:03]
B
So if you ban the box, it could turn out to be the case that the employer really wants that information to hire someone who might fit the profile of a black male criminal, but has no record.
- [63:15]
A
Right. And so they just.
- [63:17]
B
So they assume that anyone who looks that way, who is okay.
- [63:22]
A
And I would also just add that even if I get the ban the box, there have been these fascinating studies, for example, that have shown that actually know that criminal records have a very asymmetric impact. So these are these audience. They'll send out resumes to people with either very black sounding names or very white sounding names. And what they find is the fact that a white sounding name that admits in this cover letter that it has a criminal record is more likely to get a callback than the resume of a black sounding name that doesn't have a prior record. And so the implications of this are, again, there's a strong racial issue here, but the actual data is right now it's a big issue of debate is making things better or worse. And it's not clear yet.
- [63:58]
B
How do you view the 1994 crime bill 25 years after?
- [64:06]
A
So we love to blame the 95 crime bill for either causing or accelerating or playing a big role in driving mass incarceration. It didn't. And so when we talk about it driving mass incarceration, what we're talking about is this one. The 94 bill is this massive sprawling thing it did all sorts of stuff. No, it had the assault weapon ban, the Violence Against Women act. It created 60 new federal death penalty cases. It even changed the amount of data that the DMV could release for driver's licenses involving, like, abortion protests. It was a huge, expansive bill. But one part of it, this thing called the Violent Offender Incarceration Truth in Sentencing Grant voitis offered states $10 billion, up to $10 billion total over six years if they pass these really tough sentencing laws. That money could be used to build out prison capacity to hold people longer for violent offenses. And that's the part where people say this caused mass incarceration. The feds gave the states $10 billion and then prisons got bigger and worse and everything. Not true. To start, they actually, the feds came back after the program was done and asked the states that took the money, like, how much did this money actually matter to you? And all. But for most, a majority of states took no money. Of those that took the money, all but four said it didn't really matter all that much. And only four states said the money actually made a big difference. They offered 10 billion. The states only claimed 3 billion. They actually left $7 billion in free money sitting on the table. Right. It just didn't matter. And here's where. Here to me is the really fascinating part about why this 94 bill story gets everything wrong and really distracts us. If you look at the annual change in prison populations over the 1990s, it slows the entire time. Every year more and more people go to prison. Every year in the 90s, but every year fewer and fewer people are going to prison. And in fact, in 2001, no one really notices this. The number of people in state prison actually fell. Feds went up, but the states fell by a very patriotic 1,776 people between 2000 and 2001. And to me, this actually gets at how much mass incarceration is really a story of politics, not policy. So over the 90s, crime is going down. Over the 90s, another thing we observe is that Gallup, he's asking this question, actually, let me dial back. So the important thing, just the 94 bill, it just didn't have a big impact. The states kind of ignored it and prison growth actually slowed over its entire history, and so its actual impact was much less. If we care about 1990s era crime bills, what we should really be talking about is the Anti Terrorism and Effective Death Penalty Act AEDPA and the Prison Litigation Reform act pla, both of which are passed within about a year of the 94 crime bill, both of which make it really hard to complain about things in federal court. And that's really where the feds matter. Right. So it's a big distraction. But that that decline over the 90s actually tells a much more fascinating story. And to see, I want to jump ahead to the 2000s. To start, there's this very common claim people make, which is true, which is that over the 2000s, crime has kept going down. But a majority of Americans, somewhere between 65 to 75, 75% of Americans say their crime is going up every year. And so the theory, they say, is, look, there's this general disconnect between crime on the ground and what people think.
- [67:16]
B
Right?
- [67:16]
A
And that's why crime policy is so bad. Everyone thinks crime is going up, crime is really going down. This is terrible. And that's true. Now swing back to when that Gallup poll starts, which is 1993. In 1992, 1993, about 85% of Americans say crime is going up. And that's right. Like crime was peaking in 91, 92. Everyone thought crime was peaking. And then over the course of the 90s, as crime, serious crime goes down, the percent of Americans who say crime is going up, that goes down too. 85, 80, 75, 70, 65, 60. In 2000, 48% of Americans say crime is going up. We've learned as crime went down, we as a Country learned in 2001, it drops to 40% of Americans say crime is going up and the state prison populations go down. Right. We actually, in the course of a decade, had kind of brought this giant lumbering system to a halt. Right. We'd actually learned that crime was going down. And Even despite the 94 crime bill, prison growth had slowed. And finally in 2001, not only is a solid majority of Americans aware that crime is down, but prison state prisons actually shrink. And then in 2002, the percent of Americans say crime is going up jumps like 70%. And the prison state prison populations shoot way back up again. It's 9 11, right. That response to is crime going up? It's not actually about crime. It's about sort of the politics of fear that came in the wake of 9 11. And people were just afraid of life in general. What's fascinating is that the Gallup has another parallel poll they ask which is, is there any area a mile from your house that you're afraid to walk in at night? So the way of getting at not is like, crime going up like, is crime in your neighborhood going up? And what's interesting is in 2001, you don't really see a big jump in that. Right. We understood even in 2001, 2002 that our neighborhoods were safe. And that doesn't change. After 9 11, I still had that same commute. I still know what's safe or not. But the country is suddenly terrifying to me. And because the country's terrifying to me, all of a sudden, I just want to crack down on things and be harsher. And it's not until after the 2008 financial crisis that we see another drop. Right. Something sort of knocked us out of that, like, fear. Right. And again, what's really striking with the 2008 crisis is that the whole way we sort of brought the Republicans on board, they joined this reform coalition, was like, we need to save money. Right? We're spending too much. Budgets are shot. Let's cut prison spending because prison's expensive. We spend more on prisons now than 2008. We didn't cut anything. We don't have to cut anything. Prisons are not that big a share of state budgets. Right. It was all about changing the political conversation about punishment. And so I think we focus on the 94 crime bill. And in many ways that that fundamentally misses what happens. Right. There was this political shift, and it's 911 that really derailed us from heading in a positive direction.
- [69:56]
B
What final question here. What are the most important reforms we can make that people aren't talking about?
- [70:04]
A
I mean, I guess from a purely policy point of view, I would say it's reining in this, what we call what can be called sort of the prosecutorial free lunch. Again, it's this idea that the system wasn't designed in any coherent way. So here's the thing about prosecutors, is that they're county officials and they're paid for out of the county budget. Jails, where we hold people convicted of misdemeanors, they're paid for out of the county budget. And probation, where misdemeanors that don't go to prison, they're paid for out of the county budget. But prison, where you send people convicted of a felony, that's paid for out of the state budget. And so if you're a prosecutor and you can choose misdemeanor or felony, it's actually cheaper for you to charge them with a felony because that takes them off your financial books and puts them on the state's financial books and seems really technical. And intergovernmental budgetary transfers are Not a really fascinating topic to talk about. But like I said earlier, California has driven the 2010 decline from 2010, 2014, or 15. Fully half of the nation's decline was just the state of California. And California did a lot in 2008, 2009, in response to some litigation. But one of the things they did was they told the counties, for this broad category of offenses, you can still convict them of a felony, but you have to house them in county jail and you have to pay for them. And all of a sudden, they stop putting them in jail. Right. Because when they had to pay for it, they didn't want to pay for it. And other proposals elsewhere in time where they've done that with the juvenile system, you've seen the same thing. If you make counties pay for punishment, they stop punishing. And so I think for a simple policy fix, other than the underlying ideological issues, just reining in that free lunch for punishing people would be a big one. And it strikes me as one that should be sort of bipartisan, popular right for them. For more liberals, it reigns in harshness. And for conservatives, shouldn't you be concerned about a government actor who has free access to a giant government budget? That seems like sort of the classics of Republican nightmare. Right. Like a powerful punitive government official who has no resource restraints to do anything he wants. That should get both sides, I would think, on board. Yeah.
- [72:09]
B
Well, John Pfaff, it's been great.
- [72:12]
A
Thank you so much.