SEPTEMBER 20, 2017
IN 2013, Kenneth Thompson defeated fellow Democrat and incumbent Charles Hynes twice to become the district attorney for Brooklyn, New York. In September, Thompson defeated him in the Democratic primary with only 20 percent of Democrats voting; in November, Thompson defeated him again in the general election, with Hynes running as a Republican. Hynes’s loss made him the first incumbent DA in New York City to lose in nearly 50 years, and the first Brooklyn DA to lose in over a century. Yet The New York Times reported on the momentous occasion that many voters they spoke to hadn’t followed the race, “some struggling even to recall the name of the person they had just voted for.” As the DA for Kings County, Thompson assumed control over the prosecution priorities and practices affecting 2.5 million people.
While the 2013 contest had its quirks, it rather accurately represented the way the prosecutor’s office has operated in the United States — with great freedom and almost no public scrutiny or legal restrictions. Incumbent prosecutors that seek reelection win 95 percent of general elections; 85 percent of the time they are unopposed. There doesn’t seem to be any scholarship on our familiarity with our prosecutors, but chances are even a Los Angeles Review of Books reader doesn’t know the name of their DA, never mind their policies or tenure in the office. This ignorance wouldn’t be concerning if prosecutors were simply the functionaries between law and enforcement, directed by legislators that we know, and police we increasingly see and monitor. But prosecutors are actually the single greatest contributor to the American tragedy of mass incarceration.
That’s the best and most important argument in John Pfaff’s Locked In: The True Causes of Mass Incarceration and How To Achieve Real Reform. A professor at Fordham Law School, Pfaff is a stalwart of Criminal Justice Twitter (which he thanks in the book’s acknowledgments), where he relentlessly and nobly pushes the role of the prosecutor into criminal justice reform discussions. Locked In extends the arguments he has made on Twitter, through articles, and in interviews into a book project that, all at once, attempts to debunk the popular theories on what caused mass incarceration, refocus reformers on reining in prosecutors and reckoning with violent crime, and lay out a new set of solutions. While the sections that engage Pfaff’s core concerns are essential reading for anyone who still desires criminal justice reform in the Trump era, the sum is not convincing — Locked In gets lost in the criminal justice morass it is supposed to guide us through.
Despite Attorney General Jeff Sessions’s attempts to build a DOJ Time Machine, criminal justice reform from DC is of little consequence according to Pfaff, since there is no one criminal justice system. “[C]riminal justice is, at best, a set of systems, and at worst it is a swirling mess of somewhat antagonistic agencies,” he writes. “A person’s path from crime to prison to release passes through a sprawling, poorly coordinated web of competing bureaucratic actors, each responding to different incentives put in place by different sets of constituents.” Indeed, we have city police make the arrest, county prosecutors charge, county or state judges convict and sentence, all within a general legal structure built by state legislators from local districts. Their budgets, incentives, constituents, and geographic boundaries are different. Contrary to one “Standard Story” about mass incarceration, Pfaff argues, “we would need to tell 3,144 stories, one for each county in the United States.” Despite overcomplicating things, this point undermines the unitary narratives that have dominated reform efforts. Pfaff deftly demonstrates that the data doesn’t support any single narrative: the majority of people in prison are not there for drug crimes (only about one-fifth of the state prison population); they aren’t actually serving terribly long sentences (only 10 percent serve longer than seven or eight years); and comparatively few of them are serving those sentences in private prisons (about eight percent).
Instead, Pfaff asserts that incarceration is mechanistic: it rises because crime rises. What should concern us is when incarceration continues to rise but crime does not. (This largely ignores the fact that there are non-carceral responses to crime, but bear with it.) At that point, “one decision by county prosecutors — the decision about whether to file felony charges against someone arrested by the police — seems responsible for a lion’s share of the growth in prison admissions since crime started dropping in the early 1990s.” Particularly between 1994 and 2008, Pfaff argues, the only thing that changed was the percentage of arrests that turned into felony cases, moving from 33 percent to 66 percent. The mechanism wasn’t what was illegal or how severe the sentence, but how prosecutors chose to use their discretion in fitting crimes to different statutes. What’s more, the crimes of prisoners are mostly violent, one in four state prisoners are serving time for killing someone or armed robbery, and their sentences are served in public prisons twisted by similar perverse economics and beset by many of the same crises as private ones. This conclusion is not particularly dramatic or treacherous, but agendas of repression rarely are.
Instead, they’re carried out by people who make rote, daily choices. In the case of district and state attorneys, those decisions manage the fate of human lives and have been afforded extraordinary latitude.
[P]rosecutors have the unreviewable ability to decide whether to file charges against someone who has been arrested, and they face almost no oversight about what charges to file if they decide to move ahead with a case […] legislators have expanded this discretion by giving prosecutors a growing array of often-overlapping charges from which to choose.
And, it so happens, we have almost no idea how prosecutor offices do this work. Unlike the still inadequate amount of data on policing and crime, there is “no reporting systems for prosecutors […] no comprehensive data on such basic issues as the number of cases resolved by plea bargaining, the number of cases dismissed by prosecutors or judges, or the demographics of line prosecutors.” We don’t know how prosecutors use the threat of long sentences to coerce those pleas, nor how racial demographics and discrimination affects those encounters and decisions. (The data we do have is debated — law professor Jeffrey Bellin has a forthcoming Michigan Law Review article that argues Pfaff’s whole theory is conjured from a faulty dataset.) It’s also not clear why prosecutor offices have grown (there were 50 percent more line prosecutors in 2007 than in 1990) and why they have taken a punitive turn: is it related to political demands from fearful constituents, the fiscal incentives to move the accused over to the state ledger (states fund prisons; counties fund jails and alternatives), or something else entirely? Locked In’s major contribution is prompting these questions, and making our ignorance discomforting.
Even so, and like Dürer’s second-hand rendering of a rhinoceros, while Pfaff has adequately outlined the beast, he misrepresents its genetics and behavior. Locked In effectively tells us how incarceration has grown, but is alternatively silent and dismissive regarding why. The book could have proved a point about the generally unknown features of the justice system (the rhino’s shape) but, like Dürer, Pfaff also takes positions that he doesn’t properly support. On the crucial point of why prosecutors amped up draconian enforcement, for example, Pfaff suggests that “it could be that federal rhetoric shapes what local actors choose to do.” “Sadly,” he adds, “there is no way to figure out if this is the case.” Pfaff similarly diminishes the criminal justice literature on “broad, cultural struggles […] and social upheavals” by noting that “[t]hese claims get a lot right” but then immediately asking that we focus on local dynamics. This slippery prose is frustrating, and becomes exasperating when Pfaff reaches a conclusion firmly on one side. He decides that we can, in fact, “figure out” the answer: “Crime leads to fear leads to tough penal policies: it’s far more a bottom-up story than a top-down one where penal policies lead to fear.” The idea that local conditions and crime have produced the United States’s penal ideology is not actually proven by the data (this can’t be proven by the available data), and there’s a whole lot of convincing contemporary reasoning to reject it. Beyond Michelle Alexander’s bet on racial discrimination embedded in the War on Drugs, there’s Naomi Murakawa’s history of Civil Rights–era liberalism, Elizabeth Hinton’s argument for critiquing the War on Poverty, and Heather Ann Thompson’s case study of reactionary forces following Attica. Each of these accounts advances a more devious theory for how we have arrived here, and offers plenty of evidence that American politicians and parts of the electorate did willingly choose this path. In fact, it makes a whole lot of sense that cultural or political imperative pushed prosecutors across the country, together, to incarcerate.
Pfaff doesn’t do nearly enough work to refute this line of thinking, and he (or his editor) shouldn’t have set himself up to have had to. Indeed, Locked In consistently fails to engage the theoretical and ideological links between criminal justice concepts: that the death penalty matters, despite “impact[ing] a vanishingly small fraction of cases,” because it is a punitive anchor; that the War on Drugs matters because the significant spike in prison admissions represents widespread adversarial criminal justice contact that undermines legitimacy; that leaving high official maximum sentences in place for political reasons, as he proposes, is actually a ridiculous idea for any type of coherent decarceration movement. Many of Pfaff’s solutions similarly lack theoretical sophistication — such as the idea that “the most effective way to regulate prosecutors would be to adequately fund public defenders and other indigent counsel.” Adequately resourced public defense would be vital, but is not remotely close to reality: conservative support for “pushing back against the power of the state” has never included the poor or the nonwhite.
Nonetheless, any reform movement ought to employ a strong theory of change, a coherent narrative of injustice, in conjunction with the tactical focus on prosecutors that Pfaff outlines. Where Pfaff started — on the fractured justice system, the influential prosecutor, and the trouble of violence — there’s hope, even if it’s obscured by the book’s many asides. Mass incarceration didn’t happen because disinterested prosecutors simultaneously pursued felony charges and used drastic threats; reform won’t be driven by local groups forcing prosecution to change because it’s locally practical. Luckily, and sadly, there are plenty of narratives that can situate the need for reform in an urgent social movement — and many are attracting new droves of adherents since Trump’s election, whether it is antiracism, socialism, or even a broader moral humanitarianism. Sadly, and luckily, there is so much wrong with prosecution now, that there are plenty of places for local criminal justice reformers to attack. In states where the legislature is accessible, activists can push for guidelines for charging and plea-bargaining (i.e., tell prosecutors when they can and can’t file certain charges), require robust data collection on prosecution practices, consider appointed prosecutors, change the jurisdictions of prosecutors to better reflect the populations they serve, and pass justice realignment measures that incentivize prosecutors to avoid incarceration. In all counties, reformers can pressure offices to adopt front-end informational tools that present a “wider array of options (dismiss, divert, probation, jail, felony, registration, and more)” to prosecutors; voluntarily commit to collect and share prosecution data; and establish their own alternatives to incarceration initiatives.
Most important of all, as both DC and large swaths of the United States push criminalization instead, focusing on prosecution actually means engaging a problem that’s been festering in strategically advantageous territory: big (and often liberal) cities. As Pfaff explains, “[b]arely 11 percent of prosecutor offices were in communities with more than 250,000 people in 2007, but these offices processed almost 60 percent of all felony cases; the 2 percent of offices in districts with over 1 million people alone handled over 20 percent of all felony cases.” Prosecutors in these cities hold immense power over human life — and an outsized capability to prove that an ethical, and community-oriented prosecutor’s office is possible and compatible with public safety. Just last year, voters in Chicago, Cleveland, and Jacksonville voted out their prosecutors on the back of insurgent campaigns fed up with their conduct, particularly as it related to failures to prosecute shootings of unarmed black civilians. In Houston, voters elected a new DA at least in part on promises to reduce incarceration. This “new breed” of prosecutors seem to be making good on their promises.
Even without an election looming, communities have turned out in force to pressure or support their local attorneys — seeking to oust the Miami prosecutor for failing to seek charges in the death of an inmate and rallying behind Orlando’s in her refusal to seek the death penalty. Increasingly, the democratic check on prosecution practice is recognized as a powerful route to immediate change.
This fall can amplify that trend and, perhaps, fully mainstream the scrutiny Pfaff had been yelling from the margin. Voters will be weighing in on prosecution in Dallas; Columbus, Ohio; Los Angeles; and Manhattan. In Philadelphia, voters can elect the nominee from this spring’s Democratic primary: a civil rights attorney bent on remaking the office.
Meanwhile, in Brooklyn, four years have passed since a single challenger with minor recognition took on a longtime incumbent. Since Thompson’s death, Eric Gonzalez has helmed a relatively progressive office without any major scandal — but that didn’t protect him from a glut of challengers in this month’s Democratic primary. With prosecution in the limelight across the country, in part thanks to Pfaff’s relentlessness, Gonzalez had to fend off five candidates that took 47 percent of the vote. In that sense, with Gonzalez forced to campaign, prosecution brought to the public forum, and a likely resulting shift left, there has been progress. Nevertheless, that progress is imperfect: more than 10 percent fewer Brooklynites voted for DA this time around. It’s not enough to learn that the local prosecutor is important. People still have to decide why justice is important, and then find the way to getting it.