Over the past few years, a small but prominent group of academics has been arguing that the links between drug policies and mass incarceration in the U.S. are overstated. This perspective is a valuable counterpoint to a reform dialogue that has been too narrowly focused on the need to release nonviolent drug offenders — exemplified most recently by a severely limited package of legislation unveiled on Oct. 1 in the Senate that walks back mandatory minimum sentences for some drug crimes while intensifying enforcement of other felonies.
Yet this viewpoint risks minimizing the true impact of the war on drugs on prison growth and polluting the dialogue on prison reform with noxious politics masquerading as science.
Consider the recent article for the National Review Online by University of Pennsylvania criminologist Stephanos Bibas, a former federal prosecutor. He has written more than a dozen articles in prominent legal reviews and in 2012 released a sweeping historical appraisal of the American justice system. Yet he chooses to sully an otherwise insightful evidence-based exploration of America’s broken correctional system with low-rent partisan conjecture and simplistic moral pronouncements on the roots of criminal behavior (a lack of self-discipline), addiction (bad choices) and prison violence (inmates aren’t praying enough).
To make these points stick, he sets out to deconstruct the prevailing view that criminal behavior is sometimes a consequence of systemic forces such as racial and economic marginalization. The target of his polemic is the widely held belief that skyrocketing rates of incarceration in the U.S. since 1980 are largely a consequence of the war on drugs — which Bibas says is actually a manipulative lie orchestrated by a monolithic left with the help of a few libertarians.
That a scholar of Bibas’ caliber would so easily dismiss a link between government policies and societal outcomes to score political points is bad enough. Worse, though, is his tendency to substantiate his narrow viewpoint using cherry-picked data from far more nuanced thinkers. In the process, he hijacks the vehicle of social science to present a dangerously simplistic picture of the problem of mass incarceration.
One of the sources Bibas cites is Fordham University law professor John Pfaff, whose research he uses to contradict ostensibly liberal criminologists who blame targeted drug enforcement for elevated incarceration rates among minority communities. Pfaff has spent the better part of a decade attempting to quantify the link between drug policy and prison growth, in large part by measuring historical changes in the number of drug offenders in federal and state custody. His findings suggest that despite high levels of drug arrests over the past 30 years, zero-tolerance drug enforcement has had a negligible impact at best on overall prison growth.
He attributes rising prison populations prior to 1991 to a spike in crime and thereafter — as crime rates declined — to “an increased willingness on the part of prosecutors to file felony charges against arrestees.” “The role of the war on drugs is greatly exaggerated,” he writes, “and the areas where it matters most are likely the ones over which legislatures have the least control.”
Pfaff, whose primary interest is in identifying the steps most likely to address America’s prison crisis, rightly concludes that the early release of inmates who have committed violent offenses but are no longer a threat to public safety should be part of how the U.S. reduces mass incarceration. But in minimizing the broader ramifications of aggressive drug enforcement, he and other criminologists who echo his findings risk missing the forest for the trees.
To understand why, it’s important to consider the inherent limitations of quantitative measures in decoding complex social networks. Longitudinal data analysis is sort of like reviewing a series of time-lapse photographs: It’s useful for making conclusions about subjects that fall within the camera’s gaze, but it is as good as blind to any number of variables outside the frame.
Empiricists who study social deviance and criminal subcultures thus run into a problem. The world they seek to measure operates off the grid and rarely leaves a paper trail. The illegal drug economy is particularly elusive. Participants include people engaged in illicit activity as well as those tasked with preventing it. The crimes associated with this world include not only those that are functionally drug related but also a number of ancillary activities, ranging from money laundering and larceny to illegal gun sales, extortion, assault and murder.
The vast majority of people who traverse this network, including more than a few law enforcement officers, will come in contact with the criminal justice system — but many fall beyond the picture frame of predominant measures of the drug war’s reach. This makes assessing the full extent of the drug war’s impact on incarceration rates all but impossible using standard data metrics.
Focusing on inmates serving state or federal time for formal drug crimes, as Pfaff does, also excludes the roughly 3 million drug offenders who pass annually in and out of America’s municipal jails — many, if not most, of whom will be released without ever serving a day of state time. Research shows that the drug war has placed a crippling burden on these jails. A 2010 Pew report on Philadelphia’s jails cites increased arrests for drug possession as a primary reason for severe overcrowding, along with parole violations and an overburdened court system. But even that would identify only the direct casualties of the war on drugs. The collateral damage is much harder to measure. We may never know, for instance, how many poor youths drop out of school to sell drugs, parlaying that early introduction to the criminal subculture into convictions for other, nondrug felonies.
Once you factor in the multigenerational, marginal consequences of austere drug policy — including the effects of collateral sanctions for drug convictions, the diversion of resources from drug treatment to law enforcement, the trickle-down effects of imprisonment on families and communities, the racist police profiling that comes hand in hand with anti-narcotics efforts and the violence that accompanies black market economies — it’s hard to overstate the connection between prohibitionist drug policies and mass incarceration.
Criminologists are well aware of the many known unknowns that complicate their findings. And Pfaff is careful to make note of each of them in the many footnotes accompanying his texts. Perhaps his most critical missing link, however, involves the larger forces that inform his conclusions on police and prosecutorial aggressiveness — which he concedes are “almost impossible ... to empirically assess.”
It’s all but certain that police priorities are been strongly influenced by fear-laced political messaging on the subject of illicit drug use and its acute impact on public opinion. It is overly simplistic to blame the full scope of our prison crisis on one failed policy regime — but with so many gray areas still out of camera range, minimizing the impact of a trillion-dollar, 40-year expansion of the police state on our culture of mass incarceration risks obscuring one of the most obvious paths for reversing it. Exploiting that position to sow discord in a movement that has inspired unprecedented bipartisan support contributes nothing at all of value to the larger dialogue of prison reform.