The HN reaction to this paper is disappointing, most notably because so few of the people with strident opinions (against or for its conclusions) appear to have read it. I feel qualified to judge the prevailing sentiment on HN about criminal justice, and based on that: I feel like HN should be all over this paper; it should confirm all their biases except for one.
Here are some Cliff's Notes:
First, the author: John Pfaff is an internationally recognized legal scholar specializing in the dynamics of mass incarceration. This paper isn't a drive-by by a random economist; he's cited widely on the subject, including in lots of very readable blogs. I lost an hour today reading things about his work. It's interesting.
Next, on the drug war: the author appears to be against the drug war and against mass incarceration. Some commenters are responding to this paper as if it was an appeal to continue the drug war. That's the wrong way to read it. The author sets out a simple problem statement: incarceration is increasing even as the crime rate falls. That can't be right! The point of the paper is simple: "end the drug war" is a bromide for mass incarceration. If we're really to make a dent in our prison population, more radical interventions are needed.
Third, and the reason I'm so irritated at HN's response: Pfaff agrees with HN about criminal justice in the US! The problem, as he sees it, is prosecutorial discretion. As crime has fallen, the likelihood than a US arrest will convert to a felony charge has drastically increased. That's so counterintuitive that the author is moved to hypothesize about why it's happening. Perhaps crime is falling, but neighborhoods are continuing to decline, and frustrated prosecutors are overcharging accused people as a sort of "quality of life" tactic. Or perhaps the incentives are all screwy: maybe we have too many prosecutors with too few budget constraints, and, as crime falls, they have to scrape the bottom of the criminal barrel to justify their paychecks.
This paper is fascinating, carefully laid out, and full of counterintuitive observations. Most of the places you'd look for simple answers to US prison population aren't actually in the evidence. You think it's revolving-door sentences, or "three strikes laws"? Nope! Most offenders aren't reincarcerated at all, and of those that are, there's a sharp drop-off after 2 prison stays. Think it's long sentences? Nope! Most offenders serve short sentences (the author notes the impact that nominal sentences have on prosecutor incentives, though). Think it's parole and drug-related parole violations? Nope, that's not in the evidence either; in fact, parole strictness doesn't seem to be a major driver at all.
Again: the point of this paper is not that prison is full of violent offenders and so mass incarceration isn't a problem. Even among the cohort of violent offenders, the author is concerned about prison population; as he points out, many violent offenders don't belong in prison either. The author is discomfited by the fact that prison population and the budget drain of our criminal justice process are increasing even as crime falls. Mass incarceration is a problem. If you're serious about wanting to end it, this paper is good news: it strongly suggests that letting college kids buy weed at Walgreens isn't nearly enough to allow us to write that problem off.
What a great comment. People who don't understand this fact will be surprised when decriminalizing drugs won't halve the prison population. The author'd like to fix the problem of mass incarceration, and correctly points out that focusing on only one of the causes won't fix it.
Thanks for the excellent tl;dr of the paper. I'm surprised to see that sentencing plays such a small factor. I'm definitely going to have to reexamine some of my conclusions about what causes the U.S. prison population.
Since most criminal defendants are in fact guilty, perhaps the logic here could be something like: "prosecutors have made the system of adjudicating crimes so efficient using plea bargaining rules that sentences need to be ratcheted down sharply, both to account for the increased likelihood that the accused will go to prison and as a check on prosecutorial power".
There is also a question of whether the crimes defendants are in fact guilty of should even be on the books.
There has been a trend in legislation. X is bad but is already illegal, and some people who do X use Y, so Y is made illegal too. Some gangsters use large sums of cash so let's ban large sums of cash. Some terrorists use strong encryption so let's ban strong encryption. Some spammers use whois privacy so let's ban whois privacy. Some drug dealers use scales so let's ban scales. Some bootleggers break DRM so let's ban breaking DRM.
This happens many times over until most of the people who are not gangsters or terrorists or spammers or drug dealers or bootleggers can nonetheless be charged because they harmlessly use cash or strong encryption or privacy services or digital scales or DeCSS. And charged with "money laundering" or "arms dealing" or other incredibly serious crimes.
Which may at least partially explain why so many people are locked up for "violent crime" -- it isn't that so many people (outside of gangs) are spilling blood, it's that we've allowed "violent crime" to encompass things like weapons possession that don't inherently involve violence or harm to anyone.
I do not believe unlawful possession of a firearm is classified as a "violent crime"; for instance:
"Crime of violence" does not include the offense of unlawful possession of a firearm by a felon (US code).
Possessing a firearm while committing a robbery is a violent crime, whether you use it or not. But the robbery itself is also classified as a violent crime, with or without the gun.
> "Crime of violence" does not include the offense of unlawful possession of a firearm by a felon (US code).
That's at the federal level, which constitutes a smaller percentage of total inmates, more of which are in for non-violent drug offenses, than the states. And for example:
"Although the statutes allow for varying degrees and punishments, the crime [Criminal Possession of a Weapon] is generally considered a violent offense in New York with mandatory minimum terms of incarceration."
But we don't need to get into the whole gun control debate, it's only one example. The problem of criminal laws expanding to encompass more than what a normal person would consider to be criminal behavior is prolific and by no means limited to nonviolent offenses. The instance elsewhere in the comments of someone being arrested for "kidnapping" for refusing to allow someone else to abscond with his phone, for example.
Is there an argument to be made that it doesn't matter whether or not he is right in the case that you want to reduce incarcerations and that this is muddying the water?
Laws get passed by support, support is gained by attention and focus. War on drugs is obvious in the population, the decriminalization of marijuana is obviously happening. The response that you've pointed out from the article here on HN supports the idea that many people have a strong belief that mandatory minimum sentences and a tough of drugs stance has helped to flood the prison systems.
Now you say the author appears to be against the drug war and against mass incarceration. During his research he sees that drug related incarcerations aren't nearly as large a problem as the increase in seeking felony charges. He writes this paper, says hey look at this other problem inside a problem!
But he doesn't make it clear, and I judge this from the comments here, that he thinks the initial problems exist. Thus positioning himself against them because the counter arguments will be made by the opponents of the end to the drug war, and the people who say mass incarceration isn't an issue will point to this paper and say: "See the drugs aren't the problem the violence is increasing, therefore we suggest that your honor not repeal prohibition"
You want the deck stacked in your favor, the mass opinion needs to be on your side, to suggest alternatives is to weaken the force trying to repeal prohibition. To weaken the arguments to the point where no decision can be made is still winning for the people wanting to keep the war on drugs going and the incarceration rate up. Indecision is loss, you'd want to have a unified voice to make the change happen.
That you've highlighted these points so much is commendable, but the author should have done that work for you from the outset. You are relying on people giving the cognitive effort required to come to their own conclusions. That is a mistake when you are dealing with more then on person, and we want everyone to agree to end the drug war right?
Thus the way to do that, even if the author sees this other problem in a problem, is to put his weight and effort into reinforcing the existing propositions. Then once those propositions are past, which is incredibly hard, highlight the other problem areas. Start from the outside in and from the positions with the most support. The war on drugs appears to be weakening, but it isn't done, and the mass opinion can't handle a distraction, which gives power to the incumbents.
So he is right, felony handouts are the bigger problem by percentage. Try and argue that assault with a deadly weapon charge should see a reduced sentence, or any other more grevious charge, and you'll be fighting the "think of the children crowd", the "why do you want the murderer of my child to go free parent". Right now the power is building to reduce the war on drugs, which would reduce incarcerations by a measurable amount. Put the focus there, then continue with a winning moment in the end of prohibition to say "look here there is another terrible atrocity, lets keep making America better!"
There is more than changing laws to being right, and I think that is why you're seeing the response you've highlighted in your multiple comments.
The author is a social scientist writing for the academic literature, so the idea that he might amend or abridge his results to avoid "muddying the waters" of a policy debate seems extraordinarily dubious to me.
I can accept that, but I think that the opposition to the legalization of drugs will use this as a talking point to keep the laws as they are. And considering that, I think there could be some more clarification.
But yes, science is science because you don't have to accept the results of your research for them to be the truth. I'm actually suggesting adding in more personal opinion to help direct the research in the view of those folks whom will only read the synopsis.
Here are some Cliff's Notes:
First, the author: John Pfaff is an internationally recognized legal scholar specializing in the dynamics of mass incarceration. This paper isn't a drive-by by a random economist; he's cited widely on the subject, including in lots of very readable blogs. I lost an hour today reading things about his work. It's interesting.
Next, on the drug war: the author appears to be against the drug war and against mass incarceration. Some commenters are responding to this paper as if it was an appeal to continue the drug war. That's the wrong way to read it. The author sets out a simple problem statement: incarceration is increasing even as the crime rate falls. That can't be right! The point of the paper is simple: "end the drug war" is a bromide for mass incarceration. If we're really to make a dent in our prison population, more radical interventions are needed.
Third, and the reason I'm so irritated at HN's response: Pfaff agrees with HN about criminal justice in the US! The problem, as he sees it, is prosecutorial discretion. As crime has fallen, the likelihood than a US arrest will convert to a felony charge has drastically increased. That's so counterintuitive that the author is moved to hypothesize about why it's happening. Perhaps crime is falling, but neighborhoods are continuing to decline, and frustrated prosecutors are overcharging accused people as a sort of "quality of life" tactic. Or perhaps the incentives are all screwy: maybe we have too many prosecutors with too few budget constraints, and, as crime falls, they have to scrape the bottom of the criminal barrel to justify their paychecks.
This paper is fascinating, carefully laid out, and full of counterintuitive observations. Most of the places you'd look for simple answers to US prison population aren't actually in the evidence. You think it's revolving-door sentences, or "three strikes laws"? Nope! Most offenders aren't reincarcerated at all, and of those that are, there's a sharp drop-off after 2 prison stays. Think it's long sentences? Nope! Most offenders serve short sentences (the author notes the impact that nominal sentences have on prosecutor incentives, though). Think it's parole and drug-related parole violations? Nope, that's not in the evidence either; in fact, parole strictness doesn't seem to be a major driver at all.
Again: the point of this paper is not that prison is full of violent offenders and so mass incarceration isn't a problem. Even among the cohort of violent offenders, the author is concerned about prison population; as he points out, many violent offenders don't belong in prison either. The author is discomfited by the fact that prison population and the budget drain of our criminal justice process are increasing even as crime falls. Mass incarceration is a problem. If you're serious about wanting to end it, this paper is good news: it strongly suggests that letting college kids buy weed at Walgreens isn't nearly enough to allow us to write that problem off.