Through the years I have gotten to know John Pfaff a Professor at Fordham Law School.

He has a new book coming out that I hope gets widely read.

Most of what you read, even from the liberal press, on mass incarceration is objectively false.

It is NOT true that the rise in incarceration is primarily a result of the drug laws.

The “For Profit Prisons” have little to do with the increase in incarceration.

What is the problem?  A good summary:

Pfaff’s major data epiphany was that, during the 1990s and 2000s, as violent crime and arrests for violent crime both declined, the number of felony cases filed in state courts somehow went up. A lot. “In the end, the probability that a prosecutor would file felony charges against an arrestee basically doubled, and that change pushed prison populations up even as crime dropped,” he writes. Pfaff suggests several explanations for this. There were tens of thousands more prosecutors hired across the country in the 1990s and aughts even after the rising crime of the 1980s had stalled out, and the position of district attorney simultaneously became a more politically powerful one. Prosecutors’ discretion, always great, was expanded by courts and legislatures. And public defenders, stuck at the same or lower levels of funding, have not kept up with the growing caseload.

As a prosecutor I saw the problem, and have talked with Pfaff about it.  Prosecutor’s have become increasingly risk adverse over time.  No prosecutor wants the story of a person they undercharged and who subsequently commits a violent felony in the paper.  It is how careers are ended.

As the rate of crime exploded in the 80’s and 90’s, the result was prosecutors were overcharging defendants.  

Let me take an example from my own career.  I had a case of a 17 year old who held up 3 convenience stores with a gun.  He did not fire the gun, but a bipartisan law had passed mandatory minimums for a certain class of felony where a gun was used.  As a result this person did 13 years before he saw a parole board.

In retrospect I could have lowered the charge and avoided the sentence, but the thought didn’t occur to me until before sentencing and the DA would not have agreed to it unless I made a compelling case.

As Pfaff has shown in his data, this is precisely why the prison population increased so dramatically.

Really reducing mass incarceration means dealing with how violent crime is sentenced.