Mass incarceration and your local prosecutor

For the first time since 1972, the number of people behind bars in American prisons and jails in 2015 declined slightly to 2.2 million, down from 2.4 million in 2010. That’s the good news.

Fordham Law School professor John F. Pfaff, however, warns in his new book, “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform,” that continued decline in prison populations will not come easily.

While he credits a decrease in the number of people in prison for drug crimes for the recent inmate decline, Pfaff stresses that “focusing on drugs will only work in the short run.”

He argues that the drug war, contrary to popular belief, is not the primary cause of prison growth. “About 200,000 people in state prisons and another 100,000 in federal institutions are serving time for drug crimes … [and] … Freeing every single person who is in a state prison on a drug charge would only cut state prison populations back to where they were in 1996-1997, well into the ‘mass incarceration’ period.” That reduction would be a big improvement, but it does not go far enough.

If ending the drug war will not, by itself, end mass incarceration, what will? We first need to acknowledge that mass incarceration is primarily a state and local, not a federal challenge. The burden is mainly on state and local officials to put into place reforms restricting the growth of prison and jail admissions.

The real culprit behind our out-of-control prison populations is our 2,000-plus out-of-control state and local prosecutors — including the Franklin County district attorney — who are able to coerce plea bargains and avoid trials in more than 95 percent of all cases they decide to prosecute.

“Prosecutors,” Pfaff tells us, “have been and remain the engines driving mass incarceration. Acting with wide discretion and little oversight, they are largely responsible for the staggering rise in admissions since the early 1990s … [and] … no major piece of state-level reform legislation has directly challenged prosecutorial power.”

Pfaff suggests a number of needed changes while admitting that they are a hard sell.

¯ Toughen the defense: Too few public defenders and other counsel for the indigent are available to properly represent defendants. Ensuring that all persons charged with a crime are well defended will level the legal playing field somewhat and limit the wide discretion prosecutors now enjoy in handling cases.

¯ Better data: There is too little available data to allow the public to meaningfully assess the performance of prosecutors. Are prosecutors, for example, using pleas when a dismissal is warranted or offering weak pleas to avoid an acquittal? These, and many more questions, need answers.

¯ Appoint prosecutors: In all but three states (Alaska, Connecticut and New Jersey), prosecutors are elected to office. How can voters cast informed ballots in the absence of public information concerning the performance of incumbent prosecutors running for re-election? Appointing prosecutors will both add professional accountability and lessen pressures on prosecutors to cater to suburban voters calling for aggressive prosecution of inner city crimes-often with adverse impacts on targeted neighborhoods.

¯ Guidance: Well-designed state guidelines are needed to restrain decisions that drive up prison admissions. Such guidelines could inform prosecutors when they ought to press charges and risk sending the defendant to prison, or diverting the accused to probationary treatment, or other options. New Jersey alone has imposed such guidelines on prosecutors.

Ultimately, ending mass incarceration will depend on a cultural shift in America to an alternate view of how we, as a society, deal with crime. Instead of branding persons convicted of a crime-even a violent crime-with an ever-lasting “offender” stigma, Pfaff suggests that states experiment with pilot programs seeking a better set of options, including graduated-release programs and early release for inmates over the age of forty or who have served more than fifteen years of a sentence.

“By showing the transitory nature of violent behavior, and by showing released people not acting like they did when they were younger,” Pfaff hopes that, “graduated release programs could subtly shift the public’s attitude about the permanence of violence.”

The author ends on this hopeful note: “The movement against mass incarceration had no option but to start where it did, focusing on drugs and other non-violent crimes.” But he maintains it is time to move on to the harder cases, and the time to start making that move is now.

Ronald Fraser, Ph.D., lives in Colden and writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Write him at fraserr@erols.com

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