From Small Town to Prison
With hard work, using publicly available data, not relying on off the record access to sources, Josh Keller and Adam Pearce have written an excellent important article which notes that from 2006 to 2013 the rate of new admissions to prison from high and medium population counties has sharply declined, but the rate of admission from low population counties has actually increased.
The first thing I learned from the article is that the New York Times still has some value aside from it’s role as fish wrap and publisher of Paul Krugman. I think this is journalism at its best. Oh and I note that the article is, in large part, data journalism (it’s not just for bloggers anymore).
The second is, well the fact, of which I was totally unaware.
There is also an excellent investigation of why this happened. Keller and Pearce note that this is *not* principally due to differences in differences in reported crime rates. They note the important role of capacity — prison crowding causes shorter sentences — the system keeps the prisons full but not vastly over capacity. They note the absence of alternatives to prison in small counties and the terrible shortage of drug treatment services (hmm I wonder if Hillary Clinton has recently proposed doing something about that ?). Of course they note the changing geography of drug abuse. But to an economist, their most interesting thought concerns misaligned incentives.
They quote Aaron Negangard, the prosecutor in Dearborn County, Ind (which “sentenced more people to prison than San Francisco or Westchester County, N.Y., which each have at least 13 times as many people.”). He said “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.” Ah yes, he works for the people of Dearborn County which can use more than it’s share of space in state prisons without paying the state. The benefits are local, the budget is statewide, the decisions are made by local elected officials. There is a free riding problem. It is actually worse than it seems at first glance. There is also a non-budgetary spillover. If there is an extaordinarily severe county, professional criminals have an incentive toavoid it and commit crimes elsewhere. So people in Indiana minus Dearborn county pay (most) of the cost of scaring criminals from Dearborn county to other counties.
Now the state legislature and Governor Pence could deal with this problem effectively (and will when pigs fly). It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.
Now big city prosecutors will also resist reduction of sentences. They find the threat of absurdly long sentences useful, because then they don’t have to bother with trials. Defendents (including those whose innocence is proven beyond doubt years later) plead guilty to lesser offences to avoid the risk of long prison sentences. Obviously the job of a prosecutor is easier if he or she doesn’t have to actually prove guilt anywhere.
But Keller and Adam Pearce have demonstrated to all city dwellers who are paying attention and thinking (maybe I should have typed “both” not “all”) that they are paying a high price (first of all in dollars) to avoid the inconvenience of providing due process to those people.
“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”
That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.
For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.
This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.
What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.
A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.
I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.
The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?
(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)
There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!
Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?
Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.
Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.
My strong, strong preference would be Jeffrey Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month.
And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.
Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.
And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.
Liptak’s Sidebar article is at http://www.nytimes.com/2016/08/09/us/politics/criminal-defendants-sometimes-left-behind-at-supreme-court-study-shows.html.
Gupta’s Wikipedia page is at https://en.wikipedia.org/wiki/Vanita_Gupta.
thanks for this. it’s something i have been trying to point out for over twenty years, without of course your expertise.
i don’t think anyone cares. “tough on crime” sells. and i never heard a peep from any liberals about the twenty year sentence john walker lindy got for the crime of offending public opinion after 9/11.
or raised an eyebrow at threatening Monica with jail untless she retted on Bill.
beyond the cruel and unusual punishment amendment, there was the “not be required to testify against themselves” amendment, which has been finessed with “immunity”, but the original idea behind the fifth amendment was not threatening people with torture (prison is torture) to make them testify against their conscience. it was their religious conscience back then, but religion has fallen on hard times and today the people look away when the state tortures a few individuals here and there that we don’t especially like anyway.
we haven’t come that far from Salem after all.