Crime and Punishment

Over at Vox.com, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013.

Focusing on those sentenced to prison (i.e., for more than 1 year) is an appropriate measure. As Lind points out, the data for jails (less than 1 year) is inconsistent. But more than that, if we are concerned with the long-term incarceration of our people, then prison’s where you find it. These are the people who have been locked away. The people whom we’ve decided deserve to have a chunk of their lives taken away, in retaliation for something they did.

The chart is stunning:

Imprisonment is relatively rare until the Great Depression, when it nearly doubles. The new rate stays fairly consistent through the Roosevelt, Truman, and Eisenhower years. Not sure about JFK, but under Johnson and Nixon it dips slightly. It goes back to Ike levels again under Carter. Then it jumps like mad under Reagan, Bush, and Clinton, spiking more than 600% from 1980 to 2000. It seems to have leveled off a bit under Bush II and Obama, but it’s now staggeringly higher than it ever was before.

Before getting into the reasons for it, for what’s going on here, I rummaged through the data to see whether there’s been a similar spike in crime — or perhaps whether the incarceration has lowered crime by keeping the criminals off the streets. Here’s what I’ve found:

So we’ve got property crime (stealing stuff, mostly) driving the majority of offenses. Violent crimes (murders, rapes, assaults, etc.) aren’t really changing the shape of the curve, though they do amplify it.

Let’s see how this matches with the imprisonment rate (I also used BJS data, but a different raw data set than Dara used, that had different values in some places. Where Dara’s BJS data differed, I relied on Dara’s set for consistency. Any BJS data folks are more than welcome to offer corrections):

Here’s the prison rate by itself:

And here it is superimposed on the crime rates for the same years:

Well, it’s hard to see any correlation between crime and imprisonment here. Crime seems to have gone up and down regardless of what imprisonment was doing. Shooting up during the slight dip and recovery from 1960 through 1979. Plummeting for about 5 years of gently rising imprisonment rates. Rising sharply again almost to the 1979 high over the next 8 years, while the imprisonment rate shot up even faster. Then dropping fairly steadily ever since 1992, while imprisonment continued to shoot up and finally stabilize.

I’m sure some of the incarceration may well have led to some of the drop in crime for a variety of reasons, but the relationship just can’t be as tight as one might hope. (Hoping, of course, that we haven’t been as crazy and unjust a society as this makes us look.)

But heck, I left something out. Drug crimes, right? That’s the ticket! The war on drugs must be what drove this!

Here’s the graph for drug crime during the imprisonment spike (coincidentally the only years for which I could find raw data):

Well, hell. Incarceration’s not driving that down, for sure. And it’s not rising nearly enough to counter the drop in other crimes. In fact, prisoners incarcerated for drug-related crimes have been going down steadily since they peaked at 22% of the prison population way back in 1990. It is not the war on drugs that’s driving this.

It’s clear that it’s not rising crime that’s causing rising prison populations.

Could it be that prison population is going up because people are being incarcerated for longer periods of time? In other words, those who go away stay away, and the few new people each year just make the numbers go up? Sort of like Antarctica gets almost zero precipitation, but what it gets sticks around, which explains its super-deep snow pack?

Let’s see:

Crap, I don’t have enough data to make a meaningful graph. The last time the BJS ran the numbers, it was 1996. The average felony prison sentence in state courts was 62 months (a hair over 5 years) and in federal court it was 78 months (6 and a half years). The national average was 63 months (because the vast majority of crimes are prosecuted at the local level, very few federally).

If we say that the sentencing numbers haven’t changed significantly since then (a reasonable supposition, by the way), then the antarctic snowpack theory just cannot explain the rising prison population. The vast majority of prisoners don’t get locked away for more than a few years.

So if crime isn’t going up, and sentences aren’t going up, then how the hell do we get so many people in prison?

An interesting take on this was posted over at Slate last year. In an interview titled “Why Are So Many Americans in Prison: A Provocative New Theory,” Fordham law professor John Pfaff says it’s the prosecutors who are to blame. Fewer people are getting arrested, but prosecutors are sending more of those who do get arrested to prison than ever before.

This makes sense to me. I’m not thrilled with his political explanation of the phenomenon — that DAs want to get reelected, so they want to look tough on crime and charge more things as felonies. I don’t think that can possibly be all of the explanation.

It is absolutely true that DA’s offices get their budgets from politicians, and politicians base those budgets not on the effectiveness of the office as measured by a drop in crime, but rather on the more readily-counted number of felony indictments and convictions. So there is absolutely a base (in all senses of the word) drive to get indictments to justify the prosecutor’s offices’ own existence. Plus, to some extent perhaps, the drive of the guy on top to get re-elected.

But those higher-level policy considerations aren’t doing the prosecuting. That’s the young line Assistant DAs taking the cases and making the decision of what to do with them. Guided (often directed) by their managing chiefs, none of whom are elected officials. These are lawyers, not politicians, making the decisions.

At the individual prosecutor level, ADAs are deciding to prosecute cases they wouldn’t have bothered to take years ago. Where prosecutors once exercised their discretion and good judgment, they now are more likely to prosecute a case simply because they can.

Also at the individual prosecutor level, ADAs are deciding to prosecute cases as felonies that they previously would have let go as misdemeanors. This may well be due to the requirements of their higher-ups, wanting to inflate their numbers. But there is also a personal incentive here, as well. With crime falling, there are fewer and fewer chances to try big cases — the stuff that prosecutors (for the most part) want to do. It’s where the fun is, the challenge, the hard work. It’s where it all happens. In many jurisdictions, it’s the path to advancement, as well. If you’re not trying felony cases, there’s a sense that you’re not really doing your job.

So when there aren’t enough felonies to go around, there’s a strong incentive — politically and personally — to make enough.

Where Pfaff sees little hope in reform at the political level to get elected DAs who’ll lower the indictment numbers, the real reform is in reducing headcount among the line assistants. Keep the supply relative to the demand. If there’s not enough crime to go around, instead of manufacturing some way to justify their existence, offices should just get leaner. It’s hard to do, but a lot easier than changing who’s getting elected on a county-by-county basis.

That said, although I think Pfaff’s idea is noteworthy and brilliantly insightful, I haven’t given it enough consideration to tell if he’s right or not. One thing I do not have is data to back it up one way or another. All I have is my own prior experience as a prosecutor for almost 10 years, and my anecdotal discussions with my friends who are now bureau chiefs and such, and with others at leadership levels in prosecutors’ offices around the country (all of whom shall of course remain nameless). Until I have some data, I’m just going to call this one a good theory, and leave it at that.

But what do you think? Give us your ideas in the comments.