Cross: John Pfaff, Challenging Conventional Wisdom To End Overincarceration
October 5, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Fordham Law School Professor John Pfaff, whose scholarship has focused on the root causes of over-incarceration.
Q. Before you came to Fordham Law School, you held a John M. Olin fellowship (for conservative aspiring lawprofs) at Northwestern. And in addition to your J.D., you have a Ph.D. in economics from the University of Chicago. Your father was an economics professor – were you planning on following in his footsteps? Did you plan to go the academic route, or was it one of those things that just happened? Do you consider yourself a conservative lawprof? In an age of nigh-universal academic liberalism, has it led to any friction? Did you have a desire to try your hand in the trenches before the academy?
A. I didn’t head off to college intending to be an academic, at least not a social scientist. I started off thinking I was going to be a physicist. When that was clearly a bad idea, I shifted over to economics, though initially with the goal of becoming a foreign service officer. One summer internship in the State Department’s Office of the Middle East Peace Process later, and I decided that maybe being an academic economist was the way to go. And once in graduate school, I realized that law and economics seemed most interesting, so I applied to law school as well. So becoming a law professor sort of just happened, although it was probably always in the back of my mind as an option.
As for politics, despite my resume, I doubt I fall under the category of “conservative lawprof”: I don’t think of myself that way, and I doubt those who do would see me that way either. I’m certainly on the more conservative end within legal academia, and particularly so in the crimlaw world, but like the question says, that’s a fairly left-leaning bar. But I’ve certainly never really felt any sort of political friction. I mean, I get a lot of pushback all the time for what I say, but it never feels like it is due to ideology. That could be in part because when it comes to prison reform, I’m all over the ideological map, attacking public sector unions and defending private prisons one day, then arguing for more lenience towards those convicted of violence and against “personal responsibility” perspectives on crime that ignore racial and other structural barriers the next.
And no, I never had the desire to be a practicing lawyer. I did two summer associateships with a BigLaw firm in Chicago, and while they treated me great I realized it wasn’t the work I’m cut out to do. If the client’s case means digging into issue X, even when Y is a thousand times more interesting, you need to look at X. I want to follow Y, and academia gives me that freedom.
That said, before beginning the substantive part of this cross, perhaps I should make a disclosure. If I had gone into legal practice after law school, it would have been as a prosecutor. If I were to drop out of teaching and become a lawyer (and didn’t have to worry about how to feed three kids in New York City) I’d probably still be a prosecutor. Maybe one who wouldn’t get promoted too quickly, given my views, but still. I think that context is important, because in what follows I’m going to go after prosecutors pretty harshly for being the primary cause of mass incarceration today. It’s an argument contrary to my underlying political perspective.
Q. In numerous papers, interviews and posts at PrawfsBlawg, you’ve developed the theory that observers of the criminal justice system systematically misunderstand the reasons for America’s sky-high incarceration rate. What attracted you to this particular area of scholarship? Has it been difficult, disabusing people of received wisdom about the forces driving imprisonment? Have you experienced pushback, for instance, from people committed to reining in the War on Drugs, who may be inclined to see things like Obama’s commutations of nonviolent drug offenders’ sentences as more significant than they are? Is this a competition of causes? Do you take issue with those fighting against the War on Drugs that it is a bad thing, even if not the cause of over-incarceration ?
A. My interest in prisons began somewhat randomly. I was reading the Chicago Tribune one day over lunch in 2000, just as the dot-com bubble was bursting, and trying to think about what I should do for my dissertation. I came across a short two-paragraph article about how then-Governor Ryan was going to try to close a few prisons to save money as budgets tightened—but he wasn’t going to lay off any guards. That struck me as intriguing, and it made me start thinking about what really drove prison populations up and down. It ended up being a hard enough question that I wrote my dissertation on something else entirely, but once I started wrestling with the issue I couldn’t let it go. I think I’m something of a rarity in the legal academy in that almost everything I’ve written for the past ten years has been attacking a single question—what drove incarceration up?—just from various angles.
And yeah, I’ve experienced a fair amount of resistance. Though people often credit Michelle Alexander’s New Jim Crow for linking mass incarceration to the war on drugs, the idea long predates that—I was reading books making that point15 years ago. The conventional wisdom is deeply embedded, and it will take a lot of time to shift it. (To be clear, I don’t think Alexander claims she first made the connection, but she’s frequently cited by others for establishing the link.)
To be fair, I’m not unsympathetic to the resistance. Once you write something down on paper, it becomes emotionally hard to admit it is wrong. If someone has been arguing for years and years that it’s longer sentences and the war on drugs, it’s hard to simply reverse course when one or two papers come along suggesting otherwise. In fact, I often couch my results somewhat tentatively—“it may be that…”—partly because our criminal justice data is so shoddy that saying anything with certainty is a fool’s errand, but also to give myself room to admit in the future that I may be wrong, or at the very least that things are more nuanced than I suggested at first. Confirmation bias is a monster. One big risk of having my ideas gain wider traction is that I need to make sure I remain open-minded towards valid criticisms of them—but that’s not the easiest thing to do.
And, yes, I think it is a battle of causes, but for a very specific reason. None of the things I criticize are wrong—longer sentences, the war on drugs, and private prisons have all likely made things worse. But there are other factors that have played much bigger roles yet get much less attention. If political capital, time, and popular attention were all unlimited, then by all means we should attack the drug war, long sentences, private prisons, and everything else. But none of these resources is bottomless, so we need to triage: attack the important things first, and then work our way down the list if we have the time and energy. Unfortunately, the lists of what people think we should be attacking and what we actually need to be attacking often seem to rank things inversely.
Q. Conventional wisdom has it that the War on Drugs is especially to blame for America’s prison population. You disagree, pointing to statistics showing that while nearly half of inmates in federal prison are there for drug offenses, a much smaller percentage (historically no more than 22%) of state prisoners, who make up 88% of the total prison population, are serving time primarily because of a drug crime. Instead, violent and property offenders are much more common, and violent offenders alone account for more than half of the growth in state prison populations between 1980 and 2009. How did our perspective become so skewed? What makes us look at federal prisons as if they were representative and ignore the bigger picture? Do we look to the War on Drugs because it’s appealing to think of prisoners as victims of unjust government policies? Do we need to contemplate the possibility that people who shouldn’t be in prison, or not for as long as they are, nevertheless did bad stuff? Where did the dominant narrative come from?
A. First, the easy question. Why do we look so much at the outlier Feds? Because they’re the feds, and the national media is going to cover the national story. Federal reform will always get more attention in the big papers and newscasts than the latest news out of any one state. This is true in legal academia too: top-tier law reviews will always prefer the “national” study to the local, even if the more-local study actually tells a more widely applicable story.
Furthermore, the Feds are much more likely to hand down those insane sentences that again grab attention: sentences like life without parole for a first-time drug deal are, by and large, distinctly federal things. Unfortunately, these accounts generally don’t go on to explain why the Feds are an outlier, or even that they are an outlier, so the Fed story comes across as “the” story, despite being anything but.
In the current reform effort, I think we’ve also focused on the war on drugs because it is the most politically salable argument: the left and the right, as well as the elites and the general public, all can agree that some low-level, non-violent types are better served outside of prison, and perhaps outside the reach of criminal justice altogether. The argument I thus hear so frequently is that we need to build coalitions around the idea of fixing things for the low-level, non-violent drug offender, then expand from there. That sounds great in theory, but it often seems to fail in practice. The rhetoric we use to pass laws to lessen severity for people convicted of non-violent crimes often throws those convicted of violence under the bus. States from Maryland to South Carolina (think ideological distance, not geographic) have passed reform laws that cut sanctions for non-violent crimes but raise them for violent acts—and, in fact, it seems frequently that the increased severity for violent crimes is the unavoidable “price” for the low-level reforms.
And there are real costs to this rhetorical and political approach. A recent survey in Vox found that 60% of Americans—including 55% of liberals—are unwilling to cut punishments for those convicted of violence, even if those up for release pose a low risk of reoffending. Our unwillingness to accept that real prison reform will require lower punishments for violent crimes is, sadly, as bipartisan as the effort to reform things. (That same survey reported that about 60% of Americans, here uniformly across ideological affiliation, thought that about half of all prisoners are serving time for drug crimes; it’s a deep-rooted misperception, and I think the Fed focus has played a huge role in that.)
Q. Even if the War on Drugs isn’t directly responsible for the incarceration rate, could it be a major indirect factor? Between gang wars, the run-on effects of criminalization and the way a (drug) conviction makes it hard to live life free of further run-ins with the law, is it possible that a significant percentage of violent crime convictions are rooted in that misguided federal project after all?
A. So I’ve written an entire paper on this, as well as an entire chapter in my forthcoming book (I waited four question to plug it: I call that restraint); these are not questions that are easy to answer concisely. The main complication is that compared to a world with a war on drugs, the world without it would have more of some crimes and less of others, probably for a net decline, but not nearly as much as many would hope. In her fantastic book Ghettoside, LA Times journalist Jill Leovy argues, fairly convincingly, that the murder rate may not be that much lower in the absence of prohibition, since murders that take place over drug deals gone sour would simply be caused by some other source of friction. And Mark Kleiman has pointed out that capital-P Prohibition certainly led to an increase in Al Capone-style murders, but a decline in more-generic alcohol fueled deaths.
Drugs may be cheaper without the war on drugs (although that would be more likely under legalization than decriminalization), so some people would stop stealing to pay for a now-cheaper habit, but others would abuse more and may find themselves poorer than before. And on and on. And while there are a lot of drug convictions and drug arrests out there, they remain a fairly small fraction of the overall story. Between 1980 and 2012, for example, we made 43.2 million drug arrests. That’s a really big number, but it comes to under 10% of the 444.7 million total arrests—almost half a billion—made during that time.
Don’t get me wrong. Almost all of those 43.2 million drug arrests were for possession, so there are a lot of people (less than 43.2 million, since the 43.2 number treats someone arrested twice as two arrests, but a lot) who have criminal arrests records, and possibly conviction records, for low-level behavior; many of them are for pot, which is even harder to justify. Getting rid of these arrests and their collateral costs would be a good thing. But we shouldn’t oversell the magnitude of the impact that would have on the population of people with criminal records more generally.
Regardless of all that, I have to take particular issue with the claim that the War on Drugs is a “federal project.” There is no one war on drugs. Every state declared “war” at a different time—New York, for example, passed the Rockefeller Drug Laws in 1973, well before Reagan’s 1982 speech. And even that tells too-high level a story. Each county declares war at different times. While NY passed the Rockefeller Drug Laws in 1973, by 1984 the total number of people in New York prisons on drug charges was lower than it was in 1973. Between 1984 and 1996, the number in New York prisons for drugs soared, only to start falling in 1997, long before the Rock reform laws of 2004 and 2009.
The local DAs were mostly doing their own thing, ignoring the Rock laws when they were first adopted, and then pulling back before they were reformed. Or at least some of them: the decline from 1997 onward was driven by the New York City DAs, who cut back on sending people to prison for drugs, even as counties in the rest of the state have continued to send more and more. Telling federal, or even state, stories often eliminates the very source of the trends, which tend to be much more local. I bet there is often as much, if not more, heterogeneity within states as across them.
Q. Another conventional explanation focuses on the trend towards stricter and less flexible sentences, as expressed in the Sentencing Guidelines and the large-scale enactment of federal and state mandatory minimums beginning in the 1980s. To rebut that view, you point to statistics purporting to show that the average sentence served hasn’t actually changed that much in 30 years. Even so, crime is down massively since the 90s, but the incarceration rate continues to grow. The implication is that people are being sent to prison for less-than-horrible offenses, so shouldn’t we expect sentence length to fall? What role has parole, including the expansion of access in various states starting in the last decade, played in holding sentence lengths down? And what about the federal system, where you’re guaranteed to spend 85% of your sentence behind bars?
A. Let me start by saying that I don’t think my argument against longer sentences applies nearly so well to the Feds. Sentences are substantially longer in the federal system, and people serve a bigger chunk of them. My focus is on the states, which hold about 87% of all inmates, and which look nothing like the Feds. (I would wager that the two states that look least like each other when it comes to criminal justice have more similarities with each other than either does with the Feds.)
So yes, I think we oversell the importance of longer sentences. Not everyone agrees, and I think the point you raise about less-serious offending is a major bone of contention. If I were looking at broad categories like “violent crime” and “property crime,” this would be a serious concern. If murders are down and prison admissions for violent crimes are up, it seems likely that we are committing more assaults and fewer killings, and then stable time served is really masking increased toughness. (This is a common problem in statistics called Simpson’s Paradox.) However, as I show in the book (but not elsewhere, so I have nothing to link to yet), if we restrict ourselves to the 2000s, when sentencing data gets a lot better, time served is pretty flat even within specific offense categories (like aggravated assault, blackmail, firearm law violations, etc.). It’s still possible that the crimes we are charging even within each category are getting weaker, but that is less likely—or is happening to a lesser degree—than if we were looking at broad groupings like “violent crime.”
Second, we’d like to think that prosecutors have always triaged cases based on importance, so the most severe cases have always been the ones prosecuted first; if true, this would imply that falling crime plus rising convictions and prison admissions must mean more-marginal offenders are being locked up. But there’s at least anecdotal evidence that prosecutors may favor provability over importance, and those are not always perfectly correlated. So the severity of those being charged in lower-crime/higher-punishment times need not be less than in higher-crime/lower-punishment periods.
This is particularly feasible given how much “slippage” exists in criminal justice. Only 13% of all reported index crimes result in a prison admission, and only 1% of all index property crimes. A total of 10% of arrests for violent crimes and 8% of arrests for property crimes produce admissions. So it’s quite likely that prosecutors have always had a deep pool of fairly-equally serious cases to draw from, even as crime drops. (The answer to the next question will support this idea even more.)
Q. The actual culprit, you contend, is prosecutors’ newfound willingness to drop the hammer on defendants and file felony charges where a misdemeanor would once have been fine. Why is this happening? And how does this square with other contentions, such as prosecutors using excessive felony charges as a bludgeon to compel plea bargains? Is this just a gambit for prosecutors, or do they sincerely want to see every defendant put away forever? Why do prosecutors today see a decade of imprisonment as necessary when a few decades ago, probation was thought sufficient?
A. So first, here’s my argument, in academic form as well as a more readable version. Basically, it’s this: as crime dropped, we had fewer arrests, but a larger and larger fraction of those arrests turned into felony cases. Once felony charges were filed, the probability a case ended in a prison admission remained flat, as did time served. In other words, over much of the crime decline (my data ran from 1994 to 2008), the biggest change we see, by far, was this increased toughness by prosecutors when it came to filing charges.
Why did this happen? No idea. None. I have no solid evidence to point to.
This is because prosecutors provide us with no data at all about what they do. We have the Uniform Crime Reports, the National Crime Victimization Survey, the National Prisoner Statistics, the National Corrections Reporting Program: rich datasets on crime, arrests, and prisons that, whatever their flaws, give us a good sense of what is happening with crime, police, and prisons. But for prosecutors, the most powerful actors in the system? Nothing.
So all I have are some theories. Here are two. Between the 1970s and 1990, as crime soared, the nation hired an additional 3,000 prosecutors, bringing the total up to 20,000 from 17,000. Between 1990 and 2007, as crime dropped, we hired 10,000 more prosecutors, three times what we hired when crime was rising. These ADAs have to do something. And it looks like caseloads, measured by various indirect proxies (since we have no consistent data on the matter), have remained fairly stable as crime dropped. More prosecutors plus stable caseloads equals more felony cases, even if crime is going down (and like I showed in the previous question, there is a deep enough pool of serious-looking cases to keep all these new prosecutors working).
Another related issue is that between the 1970s and 2007, the number of prosecutor offices that were run by a full-time DA rose from about 45% to 85%. To the extent that more-rural prosecutors seem to be the source of increased aggressiveness these days, this could play a big role in that. New York City and LA have always had full-time prosecutors, so most of that professionalism took place in more-rural areas.
There are other factors too: prosecutors can use longer sentences as more-effective cudgels at plea bargaining (I bet this matters more than stacking charges, but I could be wrong), they may have more-reliable evidence to bring to bear (DNA, cell phone and security camera footage, etc.), the head prosecutor may be more ambitious for higher office, etc. But again, without any data, it’s hard to say more clearly. I think some of these may matter a lot—a colleague of mine and I have talked a lot about looking into the role of increased political ambition—but for now the lack of data leaves it at speculation.
Furthermore, there’s no real good evidence on what motivates prosecutorial behavior at the individual or office levels. I would say, though, that the real question isn’t “why decades now when it was probation before,” because time served is, I think, surprisingly short compared to what people believe: the median time spent in prison for drug or property crimes is about 18 months, and it’s about three years for a violent crime. I think the better question is “why is any sort of prison time required now when probation—or no charge at all—was okay in the past.” It’s not so much that people are spending more time in prison, it’s that more people are spending (the same amount of) time in prison. Obviously the crime surge from 1960 to 1991 shaped and hardened attitudes, but all in all it’s a vitally important question hampered by a distinct lack of data.
(To head off the obvious objection, yes, some people are spending a lot of time in prison. But in a study of 200,000 people admitted to prison in 2003, I found that only 3% were still in, without having been released, by the end of 2013, and over 85% of those were in for a violent crime, 75% for an index violent crime, and about 25% in just for murder or manslaughter. So most of these were serious violent crimes. Moreover, when you read about all the people serving “life sentences,” realize that (1) fully 25% of those sentences are just in California, and (2) in many other states, “life” can mean release within 10 or 15 years—needlessly long terms, yes, but shorter than what “life” suggests.)
Q. Let’s assume “prosecutorial enthusiasm” is, in fact, primarily to blame for incarceration rates. But prosecutors don’t operate in a vacuum. Have changes in the legal landscape contributed to the problem? For instance, over the past twenty-five years, the weakening of the Fourth Amendment in cases like Whren v. United States has made it significantly harder to suppress evidence, making it significantly harder to challenge the prosecution. To what extent is the Supreme Court responsible for full prisons? Have they emboldened prosecutors to be needlessly harsh? What about defense attorneys? Has the defense fallen down on the job and let this happen?
A. Let’s start with defense. Defense hasn’t “fallen down.” Defense has been shoved down. Eighty percent of those facing prison time qualify for a public defender or appointed counsel. Yet we spend about $4.5 billion on indigent defense—about 2% of the over $200 billion states and counties dedicate to criminal justice. That’s less than the $5.5 billion per year we spend on prosecutors, and that $5.5 billion ignores that prosecutors have free access to investigators in a way that indigent defenders do not. One study in North Carolina found that accounting for these free services effectively tripled the prosecutors’ budgets.
There’s no need to recount the crisis public defense finds itself in, most notoriously in New Orleans. The fact is, however, that lawsuits about inadequately funded defense stretch across the country, from deep-red Louisiana to deep-blue New York. I think that adequately funding indigent defense is one of the most important things we need to do, and I think it is one of the few areas where the federal government could effectively intervene in a way that could really change what is happening on the ground at the state and county level.
As for SCOTUS, it’s possible that its decisions have mattered. I mean, I’m sure they have to some extent. But in a world of plea bargaining and overwhelmed public defense, it’s unclear whether SCOTUS’s shadow reaches where most cases are resolved. To what extent would a public defender with a caseload two to three times what is manageable and little to no access to investigators be able to establish that evidence was excludable if he was operating under more pro-defendant standards? On the margin, opinions that made it easier to exclude evidence would help, but I doubt by too much. In the end, though, I think SCOTUS has spent so much time focusing on the margins of things—the death penalty, which for all its emotional power impacts a vanishingly small fraction of cases (about 0.1% of the prison and jail population, and about 0.03% of those under correctional control are on death row), and jury-trial rights, which almost no defendants invoke in a world of plea bargains and bench trials—that its overall impact on a plea-driven world is pretty slight.
Q. What’s to be done about prosecutorial discretion? If the War on Drugs were the true culprit, we could look to a future administration to reverse course. But district attorneys operate on the county level. Police reformers like to blame misconduct on “cop culture,” and hope to address it through reform. Is there something like a homogenous “prosecutor culture” we could try to use as a lever, or is that a pipe dream? Even if there were, would prosecutors be receptive to the idea that not every defendant needs to be imprisoned? What would elected DAs’ constituents say? Is it politically feasible? How can they be moved to change?
A. Changing culture is hard, especially because prosecutors are so local. In some cases, elections can work. Tough on crime prosecutors have lost not just in Democratic primaries in blue districts like Chicago/Cook County, but in Republican primaries in red districts like Florida’s Fourth Judicial Circuit (Jacksonville). But it is likely that there are a lot of tough-on-crime prosecutors who are politically secure.
Constituents pose a problem, and I think it is important to emphasize how. While prosecutors are elected by the county, crimes (at least in urban counties) tend to be concentrated in the cities. Yet suburban voters have disproportionate voting power—in other words, those who elect the prosecutor are not the ones who feel the costs of excessive enforcement. It wasn’t always like this: as Bill Stuntz points out, prior to the end of World War II and the rise of suburbanization, those in the cities who felt the brunt of crime also tended to control the cities’ political machines. This created a certain amount of balance. Now, however, costs and benefits are separated, with those who feel the benefits but bear far fewer costs wielding the power, which surely motivates some of the excessiveness—especially given that the disconnect operates along sharply racial lines.
So I think another solution to consider would be to move to urban districts: let Detroit have a prosecutor and non-Detroit Wayne County another one. This is not a panacea—such city-only districts exist in NYC, Baltimore, St. Louis, and a few other places, some of which are doing better than others (but all of which could, perhaps, have done even worse if the ring suburbs were included)—but I think it is an idea worth pursuing more.
I’m increasingly drawn to the idea of legally binding charging and plea bargaining guidelines that restrict prosecutors just the way sentencing guidelines restrict judges. New Jersey actually has its Brimage Guidelines, which are plea bargaining guidelines for a small set of serious drug offenses. I think that states could expand these to cover more offenses and more decision-nodes that prosecutors face. As long as they are enacted by the legislature, I think courts would enforce them, so the county-ness of prosecutors would not thwart them. Obviously, there are a thousand issues, big and small, about what such guidelines should look like, but I think all of them are surmountable. Working through what such guidelines would look like is one of my next big projects.
Q. Failing that, what kinds of incentives could we set for government officials to reduce the prison population? Financial? Incarcerating people isn’t cheap, and local and state budgets are a little less “unlimited” than the feds’. But do prosecutors care? Is there a pragmatic argument to be made here, about the failure of prison time as a rehabilitative measure and the costs that come with shutting people out of employment or turning them into repeat offenders? Should we make a moral argument, like Julie Stewart has with FAMM? Is that even possible with violent and property offenders? Do we need better data before we can settle on a plan of attack? Have we so vilified criminals that there is no political will to turn back?
A. So on the financial front, there is at least one thing we can do: close, or at least narrow, the giant moral hazard problem with incarceration. Prosecutors, who determine who goes to prison, are county officials, but prisons are paid for by the state. Prison is, in effect, a free resource for a prosecutor. Even worse, less-severe punishments, like jail or probation, are paid for by the county. So prison is actually cheaper than probation, at least in the eyes of county officials. (The small print: We have 50 states doing 50 different things; specifics may vary within specific states. This is a broad but not unfair generalization.)
California is basically the only state to try to correct this, via its complex “Realignment” program. The core idea is that someone convicted of a “triple non” offense—a non-violent, non-“serious” crime that does not require registration as a sex offender—must serve his time in the county jail, not the state prison, even if the conviction is for a felony. Most triple-nons face fairly short sentences, but some can reach up to eight years, and some aren’t all that minor (like negligent homicide, which California does not classify as “violent”). There’s a lot of complexity in Realignment, and I think California has made some big mistakes in how they have implemented it, but the central approach is worth thinking about.
Unfortunately, in strict dollar terms, incarceration is cheap. For all the talk about the costs of prison spending, it’s only about 2% to 3% of state budgets, maybe 6% of discretionary budgets. Alternatives which may be much more socially efficient are more likely to be fiscally expensive: locking people up doesn’t require a lot of manpower, but treating or working with them does. Something on the order of 50% to 75% of correctional budgets go to wages, so more labor-intensive alternatives, even outside the prison, are likely to be relatively more expensive, something Indiana is currently wrestling with. (To be clear, prisons are almost certainly more socially costly than more-local alternatives, but likely cheaper per prisoner when compared in state budget dollar terms.)
In the end, I think what decarceration is going to take is a fundamental attitude shift. I don’t wholly agree with Michelle Alexander’s claim that there is little the law can do to stop mass incarceration, but I am sympathetic to her broader lament that what is needed is some sort of deeper moral or spiritual change. We have to want to be less punitive.
This is why I find the Brock Turner case (the Stanford rape case) so frustrating. I agree that the sentence felt too low, especially compared to what is routinely imposed for equally severe if not less-harmful non-rape assaults. Yet faced with this, liberal critics of the sentence had two options: follow the tried and true tough-on-crime path of insisting that parity means jacking up the severity, or take the call for decarceration to heart and make the far more radical argument that the disparity between the Brock case and others showed the need to reduce the sanctions for the other crimes. Choosing the former was a blown opportunity to demonstrate what a true commitment to decarceration requires.
I get the political preposterousness of that last paragraph. No politician right now is going to win for passing the “Make All Sentences LESS Severe Act.” But to the extent that previous paragraph sounds like a fever dream, it shows how big an attitude adjustment we need to make. Otherwise we’re always going to vulnerable to backsliding—like we just saw in Arkansas, where a 10% drop in prison populations following the adoption of a reform bill turned into a 25% increase in the wake of a single murder by a single parolee.
Q. What’s in your future? You’re ten years into your professorial career, a successful scholar, young, popular with your students. Would you like to put your empirical knowledge to work as a judge? Maybe try a few cases after plea negotiations break down? Take a more direct role in pushing penal reform? Is the ivory tower everything you hoped for? Whither must you wander?
A. I don’t see myself ever leaving academia. I love teaching, and I love the freedom to explore whatever issue strikes me as interesting in whatever way I want to approach it. At the same time, I’ve never wanted to cloister myself in the ivory tower either. To the likely benefit of criminal defendants, I doubt I’ll end up trying cases any time soon—David Faigman once wrote something along the lines that every JD/PhD is either a social scientist with a JD or a lawyer with a PhD, and I’m definitely the former—but I am interested in doing more to change what our policies really are, and I’ve started to have some conversations with policy-making types along those lines. I think that’s where I can make the biggest contribution: I understand how the law actually operates, but I’m more comfortable than most with the numbers.