 Good evening. This is the third in the Office for the Advancement of Research's book talk series for fall 2017. And today, we're featuring Professor John Paff, who is Professor of Law at the Fordham University School of Law, and his book, Locked in the True Causes of Mass Incarceration and How to Achieve Real Reform. I am introducing the introducer, who is our own Dr. Phil Goff, Franklin A. Thomas Professor in Policing Equity and Director of the Center for Policing Equity here at John Jay College. So if you'll give a round of applause to Dr. Goff. Good evening. Good evening. There we go. I just need y'all to be awoke all the way through this. I mean that in both senses of the word. Thank you all for showing up. And please don't show out at least until the end. It's my great pleasure to introduce my friend, John F. I assume the F was a choice to make his last name harder to pronounce. So you got the basics on the book. I'm going to tell you just a little bit about what the book is doing right now in the culture and for those of us who care deeply about criminal justice reform. For quite some time, this was a space that nobody cared about, full of people that nobody cared about, with stories that nobody told and no one would listen to if they did. And then about a quarter century ago, people started paying attention to the fact that there were whole neighborhoods that seemed to be blighted by arrest and incarceration. You might recall that three years ago, the awareness skyrocketed yet again when people started filming what police were doing to citizens. And the stories that came from that, from our best storytellers and some of our best scholars, were startling. The resonances to the worst parts of American history, to the worst parts of shadow slavery, were pun intended, arresting. And it got a lot of us to wake up and pay a lot of attention to what many of us had been living through for generations. The problem is with simple stories that simple stories are often wrong. And when you have the wrong story, when you're telling yourselves the wrong story, you're also foreshadowing the wrong set of solutions. What John Faff's book has done, and if you read the best work in the book, which is, of course, the back flap where I have blurbed it, you'll know that I really, I thought this even before it made the splash that it did. What this book has done is it has woken up the folks who were responsible for waking the rest of us up to the notion that the stories we've been telling ourselves have been too simple. That, in fact, we're going to need different solutions to the problem of mass incarceration if we're going to make any kind of dent at all. So we talk about a theory of change that's necessary to move the needle. John Faff's book is the blueprint for that theory of change. And you don't need to believe me because famous people also think this. Here's what I mean by that. You guys have seen the movie, the Netflix movie, 13th? Some of you? Yes. You guys have watched John Legend talk about this stuff, some of you? Yes. You guys have listened to Ava DuVernay, John O'Rhymes, you've listened to Jesse Williams, you're listening occasionally to Colin Kaepernick or Anquan Bolden, you're listening to Malcolm Jenkins. All of these people have this book at the top of their list. It is the new Bible for the new path forward. This is the book that's making the change. It is tremendous to me that this man lives, and I mean live quite literally because he lives in his office quite frequently, right next door to us. And he is one of the most competent scholars and one of the most effective storytellers at the story that we all need to be telling if we're going to make an actual dent in the future that has been so unjust, especially in these political times. On the day that all of you hopefully have a sticker that looks like this, right? Many of you, I hope, right? It's not a panacea, it's not solving everything, but if you don't vote, we saw what happened. So on a day when that is possible and on nearly the one year anniversary of so much negativity, misery, and moving in the opposite direction of justice, it is a wonderful honor for me to welcome John Faff to the stage. Please join me in applauding his efforts and what he's about to give to us. Thank you, everyone, for coming today. I really appreciate it, and thank you, Phil, for that really generous introduction. I'm just going to start at the very beginning, in 1920. In 1920, I would not have had a job, really, or a book, because back then incarceration was kind of boring. From 1920 to 1975, incarceration didn't really change. It was about 100,000, didn't really go up, didn't really go down. In fact, in arguably the worst-timed article ever published by an academic ever, in 1979, Alfred Bloemstein, one of the greatest criminologists in the United States, wrote an article in which he stated in 1979 that the incarceration rate would never get above 100 per 100,000. That if it did, we would change all of our laws and policies and push it back down because there's a natural rate of incarceration and it's around 100. No. What happened over the 70s, 80s, 90s, and 2000s was an unprecedented boom in incarceration, unseen in American history, unseen worldwide. I'm sure most of you are familiar with the Hori statistic. You know, we're home to 5% of the world's population, but 25% of the world's prisoners, 35% of the world's female prisoners. When I point that statistic out, people who want to disagree with me point out correctly that the international incarceration tables I'm referring to don't include Iran and North Korea. Therefore, we might not be first, to which I'm willing to concede that point quite readily that we're third behind North Korea and Iran. I think I've made the point that it's too high. Now, since 2010, things have shifted. There's been a drop. It's not a lot, but it's a drop. And you don't turn this giant lumbering engine of incarceration around on a dime. And the fact it's gone down to something auditory and something we should celebrate. Whether or not this is an actual trend, however, is a much trickier question. Because if you break it down by state, a much different story emerges. The United States has not decarcerated since 2010. California has decarcerated since 2010. And the rest of us are just tagging along. If you break it down by change since 2010, there's California, there's everybody else. Half the states that's seen their prison populations rise since 2010. Half has seen a fall and most of us in California. Between 2010, in 2010, we had about 1.4 million people in prison. We've since declined by about 77,000, about a 5.5% drop. It's not huge, but again, given 35 years of uninterrupted growth, any decline is something worth noting. But if you take California alone, the picture falls by more than half to 2.5%. If you take the top five states out of the picture, it hasn't really dropped at all. This is not a story of national decline. It's a very local story. And that's surprising, because this is one of the true areas of genuine bipartisan agreement. At a time when Democrats and Republicans couldn't agree if it's raining or sunny out at this exact moment in time, they do seem to agree at the local, county, state, and federal level that something needs to be done about our prison population. Conservative and liberal groups, the Koch brothers and the ACLU, they are genuinely working together to try to change this. And I know, and I mentioned the Kochs, people will roll their eyes, but there are sincere conservatives genuinely trying to change this. And yet they have very little to show for it. And the reason why I think we have so little to show for so much effort over so much time, it's been nearly a decade of trying to push this down. And outside of California, that's followed a very idiosyncratic unique process the rest of us won't be able to follow, we don't really have that much to show for it. And my theory-wise, there are three hoos that we tend to overlook. The first is the prosecutor, who we completely ignore, despite the fact they play a huge central role in everything that happens, right? Cy Vance is running unopposed today, that's not unusual. When Hillary Clinton, not to pick at a very bitter scab on Today of All Days, but when she rolled out her end-to-end criminal justice reform proposal during the 2016 campaign, she talked about policing and she talked about parole. And she never talked about the prosecutor. It wasn't end-to-end, it was end-and-end. And like everybody else, she jumped over the middle. But I'm gonna show you that middle, that's where everything happens. And we're still not really talking about prosecutors. We get shocked by scandals, but Cy Vance didn't face any criticism for what he did day to day, he only faced it for the one big scandal. And that is concerning. Violence. We've convinced ourselves that we can get our way out of this mess by focusing on the low-level, nonviolent drug offender. But the fact of the matter is, 53% of all people in prison are there for a crime of violence. If we're not going to talk about treating people convicted of violence differently, which we have to do, there is a very, very hard floor on how far we can shrink our prison population. And it's not nearly as low as people want it to be. And the third who is the public sector. People get really angry about private prisons. They get, it's one of the most immediate explanations, the private profit motive, the prison industrial complex that drives the system. But the fact of the matter is only 8% of all people are held in a private prison. 92% are in public prisons. And if you want to understand why we are where you are, we are, you have to dig into the incredibly dry and boring, but incredibly important role that public sector union lobbying, DA association lobbying, and things like the census enumeration play. We'll talk about the census shortly. It's the kind of thing where people sound bored and when I explained to you how the census drives mass incarceration, people's jaws tend to drop. It's shocking how a boring routine issue of where do you count a prisoner as living can play a huge role in driving this. But the public sector plays a giant role. And so far, we're not seeing any effort to fix that either. No one's trying to change the underlying structure of how we got here in the first place. What we're doing is pushing laws through the same system that gave us mass incarceration in the first place, hoping that maybe this time those laws will stick, but they won't. By the way, it's unintentionally designed. The system will always overreact to rising crime and always underreact to falling crime rates. And if we just try to force through laws today as fast as we can, they're all gonna get undone when crime starts going up again, or keeps going up depending on what's happening right now. And so far, we're seeing moves in these directions, but we still lag what we really need to be focusing on. We've convinced ourselves that it's all about long sentences, which is not, that it's all about drug cases, which is not, and it's all about private prisons, which is not. All those things matter. They're not zero, but we're focusing so much just on those things. We've taken our eyes off the things that really matter and the things that really matter are a lot harder to fix. And so we're gonna have to start confronting them. So I'm gonna go through each of these briefly, so you can see just how important each of these three factors is. Let's start with the prosecutor. So my study of prosecutors goes from 1994 to 2008, just because that's when the data is available, but it's convenient. It helps me understand the role prosecutors played as crime went down. Why did carcerations keep going up and up and up, even as starting in 1991, crime went down and down and down, right? From 1991 onwards, crime went down, and serious crime, the things that send you to prison, that went down sharply. Indexed violent crimes, murder, arson, murder, rape, aggravated assault, and robbery, they dropped by like 25 to 30% nationwide. Yet prison populations kept going up. We have fewer and fewer crimes. Not only do we have fewer and fewer crimes, we have fewer and fewer arrests. There are literally fewer and fewer people entering the criminal justice system every year over the course of the 90s and 2000s, but prisons kept getting larger and larger and larger. One thing that did change, the number of felony cases filed in the state court went up, went way up. So we're arresting fewer and fewer people, but we're charging more and more people with felonies. Whether we're upcharging former misdemeanors to felonies, or if we're just charging cases, we have dropped ass felonies, we have no idea, we don't have the data on that. Usually when people ask me to have data on, I just can stop them right there before they tell me what they want the data on and just tell them no. We don't have a lot of what we should know. But cases kept going up. Once those cases got filed, the chance you went to prison didn't change. About one in four felony cases went to prison in 1994, about one in four cases went to prison in 2008. And with one exception, the amount of time you spent in prison, that didn't change either. Time served didn't change. Sentences on the books went up. But with one important exception, the amount of time actually spent in prison didn't change that much. The one exception is murder. The amount of time spent in prison for murder did go up. And one of the big challenges we face is that the number of people in prison today for murder alone is equal to the total number of people in prison in 1970 for every single crime. Our murder rate is the same today as it was 1970. We have literally an entire 1970s prison population for the people in prison for murder. And that was driven by long sentences. If you really want to cut time served, the one time served you really can cut is time served for murder. You can, you can keep us safe and cut time served for murder. But that's the level of political challenge that we face. But the main engine of growth was this change in felony filings. And that's entirely driven by prosecutors. Entirely to the discretion, completely unreviewed, unreviewable, unmonitored, untracked. They provide no data. I found this from court data, not DA data, because the DAs don't provide data. We have no idea what they do. We fly completely blind and they are the ones driving this process. That's why they've been allowed to drive this process for so long because we gather no data on what they do. So why? Why have prosecutors become tougher? Short answer is, well, since I have no data, I have no idea, right? But I can take some guesses. I've been staring at these numbers for a while. There are a couple of numbers lurking here and there that start to tease out a couple of stories. In the end, the most important story will, as will be a consistent theme you're gonna see, be the least interesting story, but the most important because of that. But what are some reasons? One, public defense. 80% of all people facing prison or jail qualify for a state appointed lawyer, 80, 80. Almost everyone facing prison time is entitled to a state appointed lawyer. Yet we systematically underfund engine defense, woefully underfunded. Many states stuff to the county to pay for it. Their budgets are smaller than prosecutorial budgets and smaller still when you take into account the fact that prosecutors get all sorts of free services that public defenders don't. Public defenders have to pay for their investigators. They have to pay for DNA testing. You have to pay for forensic evidence. But the prosecutor, they have an investigator. It's called the police. They have a DNA service. It's called the state DNA lab. And you add in all those free services, the volume of money going to prosecutors compared to defense attorneys, they dwarf them. This is an adversarial system in which one adversary has no funding, relatively speaking. So it's not surprising prosecutors, as much as prosecutors complain that they are overworked, which I'm sure they are, they are not overworked compared to public defenders. And compared to public defenders, the prosecutors get to set the case though. They determine what cases go forward or not. The public defender takes whatever hits their desk. And the public defender, if they're overwhelmed, has one choice, basically, which is simply stop taking cases and instigate a lawsuit. And that's happened nationwide. This is nothing new. When I was looking up information about how Louisiana recently did that, where the New Orleans public defender, so we stopped taking murder, rape and arson cases and robbery cases to force more funding, I saw an article about the exact same employee pulled by public defenders in Pennsylvania in 1984. This is an ongoing problem, but it allows the prosecutors to have more and more clout. Time for sentencing laws. But I will say, one of the biggest solutions we have for almost every crisis we face when it comes to mass incarceration is injured defense. It's probably one of the two single most important things we can do is actually make sure the public defenders are funded to do the job they're called upon to do. Time for sentencing laws. People aren't spending more time in prison, but the fact of the matter is no one goes to trial in this country anymore. 95% of all guilty verdicts come about from a plea bargain. And something on the order of 60 to 70% of all cases are resolved through some sort of a plea bargain. Time for sentencing laws might not result in more time spent in prison, but they give prosecutors more and more clout with which to go into that plea bargain. Take this two-year deal or face five years. Take this two-year deal or face seven years. Take this two-year deals or face 30, 50, 60 years. Of course, you can get more pleas that way if you go from bringing a knife to the fight to a gun to a nuclear missile. And so they're not necessarily imposing more time, but they're threatening more time. And those threats can be effective, especially if the public defender is too overwhelmed to actually effectively fight back against a threat. But arguably the most important one is actually a story of staffing. There are two very interesting trends that take place in DA staffing. First of all, between 1970 and 2008, the number of counties with a full-time prosecutor goes from 45% to 85%. This is not urban. This is a rural and suburban phenomenon. Manhattan and Brooklyn and Los Angeles did not pick up a full-time DA for the first time in 1992. We've had them since the 1800s. But rural counties professionalized. The DA went from a part-timer with a private practice on the side who took cases based on the contract to the DA. That was his job. That's why he's putting his kids through school. That's why he's putting food on his table without being the DA. And that's when they make them tougher. And the thing to realize what we're gonna see about the decline in prisons that we've seen is it's almost entirely an urban phenomenon. Rural and suburban counties are getting tougher and tougher even now. And part of it is probably because they had these increasingly professional DA offices. In urban counties you see another even more interesting trend. Between 1970 and 1990, as crime goes up, as crime goes up sharply, the number of assistant district attorneys nationwide rises by about 3,000, from 70,000 to 20,000. From 1999 to 2008, as crime plummets, the number of full-time prosecutors rises by 10,000. We hire three times as many prosecutors during the crime drop as we do during the crime boom. We don't have good data on how hard prosecutors work, on their case load or productivity, but every proxy I can possibly think of, they all tell the exact same story, which is that a prosecutor in 2008, the ADA, that guy at his desk, that line prosecutor, the person actually running the case, not the elected side dance, but the underling two years out of law school actually trying the case, they are no more aggressive today than in 1990. There's 10,000 more of them. And we send about 600,000 people to prison every year. We arrest about 12 million people every year. If you're an ADA at your desk, you can't play minesweeper all day or Minecraft, you gotta do something. There's always gonna be a case for you to take because we arrest so many people. And so a significant portion of this growth is not any change in attitude or behavior, it's just a story of staffing. But at the end of the day, it's also important to realize that a big part of the problem is just us. We're an incredibly punitive country. We think generally the solution to all problems is prison. There are counties all across America where the response to the failure to pay a library fine is a jail sentence. We jail people for almost every possible social malady you can think of. And we show no inclination of stopping. And the problem is that while we talk about wanting to be soft on crime, and in polls, survey after survey, we say we don't favor tough responses. The fact is, is we tend to vote people out for the one time they're not tough. For the Willie Horton case, where the one person they aren't tough to commits a crime, recidivates, and we blame them for that one mistake. Or even think about Sy Vance. Manhattan sends more people to Rikers than any other county in New York City, despite the fact it's not the largest county. But Sy Vance faced no criticism for being tough. The thing that won't bring him down today, but will make his reelection less dramatic and might result in a challenger in four years. It's not quite a dramatic statement, but that's where we are. It was leniency, not toughness. Even in Manhattan, what gets you is toughness, leniency, not being tough. And part of it, Michelle Alexander actually quit teaching in a law school. She goes to Union Theological Seminary now. And the reason why she quit teaching in a law school was because she realized her take is that the law can't fix this. That there's something deep and rotten in the soul of America. That requires something more than the law to fix. And while I remain in a law school, not just because it pays better, but that's probably part of it, I'm deeply sympathetic to that take. There's something wrong with us. We are here for a reason, more than just mechanics and policy. There's something about our attitude towards misbehavior and how to respond to that that is inherently punitive. Now, there's some optimism here, surprisingly. Prosecutors run the process. Prosecutors are elected by the county. There will not be a federal solution to mass incarceration. There will not be a state solution to mass incarceration. The solution to mass incarceration lies at the county level. That's a lot of work. You gotta go through 2,500 DA offices, not 50 states, not one congressional bill. On the other hand, it's protective. DAs don't care what happens in DC. DAs care about what happens in the county. They're very, very immune to any sort of outside influence. There's data on how New York City DAs ignored what was going on in Albany. They certainly don't care what's going on in Washington. And so the carnage in America rhetoric coming out of DC won't do much to derail prison reform. There's a lot of ways prison reform can fail, a lot. But the rhetoric from DC is not gonna be what kills it. To show you just how localized mass incarceration is, the next map I'm gonna show you is change in prison population by county between 2010 and 2014. Counties that are orange are sending fewer people to state prison by 2014 than they were in 2010. They've decarcerated. Counties that are blue are sending more people to prison in 2014 than in 2010. They become tougher. And what you're going to see is except for California and Mississippi, you can't identify a state on this map. Lots of those states are states that decarcerated. Many of those states are states that send more people to prison. But it's not a state process, it's a county process. New York State has the longest sustained decarceration in the United States. We've been decarcerating since 1999. But New York State did not decarcerate. New York City decarcerated. And the other 60 counties sent more people to prison from 2000, 2010 than they did. They all sent more people by 2010 than they did in 2000. But New York City sent fewer and we're such a big part of the state, we drove the whole state down. So you're not gonna fix it as the one magic bullet in the state house or in the federal building. At the same time, you're not gonna get derailed by one terrible law coming from the feds or the states. But we have to focus on these county actors. They drive this process. The second most common explanation for mass incarceration is the story about drugs. And it's true that the number of people in prison for drugs rose sharply over the course of the 1980s from about 6% of the prison population to about 22% of the prison population. But since 1990, the fraction of people in prison for drugs has slowly and steadily declined to about 16% today. The feds, the federal prison is about half drug offenders. The feds, however, are only about 12% of all prisoners. 88% of all prisons are held in state prisons despite the fact that the feds get 99% of all media attention. But it's a state-driven process and the states are mostly full of non-drug offenders. Over half of all people in state prisons are there for drugs, violence, right? We are, what drives prison is violence. Between 1980 and 2009, we added 1.1 million people to our prison population from 300,000 to 1.4 million. That number in and of itself is staggering to look at. Of those 1.1 million, about 223,000 or 21% were drugs and about 551,000 or 51% were there for violence. And understand the fact that there might be even more people guilty of violence in prison than that because we classify you by your most serious charge for which you are convicted. So if you are arrested and charged with a violent crime and a drug offense, but we drop the drug offense as part of the plea bargaining and convict you of the drug crime, you show up in prison simply as a drug offender, not as any act of violence. And so this is the lower bound on the number of people who are in prison for violence, for drugs. Sorry, it's a lower bound on violence, upper bound for drugs, right? There's at least 53% who are there for violence. It could be more because you don't know what deers are pleading around for drugs to deal with violent cases. We also don't know how many cases of violence are for sexual arrest designed to get a violence that just can't prove. Now when I say this, I get two criticisms. One from the left, one from the right, both worth considering, neither as effective or critique as people who make it think they are. The first is I'm taking far too narrow a view of what a drug offense is. After all, if you kill someone in a drug deal gone bad, that's not a drug offense. That's a violent crime. If you steal to feed your drug habit, because drugs are more expensive because of prohibition, that's a property crime, not a drug crime, because drugs come third, violent property drug. And I'm only getting you if your actual crime of conviction is for a drug offense, not for an offense motivated somehow by drugs or by the war on drugs. And so perhaps this is setting a lower bar on sort of understating the impact the war on drugs has had. It's not an entirely invalid point with a couple of caveats. One, and one of the better books out there on criminal justice, Jilliovi's Ghetto Side, is written by an LA Times reporter who embeds herself with a homicide unit in South Central LA. And one thing she reports is this anthropological study showing that studies show that if you take a bunch of young men and deny them upward mobility, and then the state doesn't maintain its monopoly on violence, if it doesn't enforce its laws against violence, those young men turn to gangs, they turn to violence, and they kill each other. And it's just as true in South Central LA in the 1990s and 2000s as it is in like the foothills of Sarus Russia in the 1800s. It's this universal constant that young men with their ambitions cut short and the state stepping back from actually enforcing laws against violence, they become violent themselves. And that defines South Central LA, right? Young men of color are systematically denied access to the primary job market. They're a whole host of overt discrimination, underfunded schools, social networks that are cut off in the primary job market, and a general inability to penetrate primary job market. And the state has renounced its monopoly on violence. The clearance rate for murder, the percent of murders that resulted in arrest is about 60% nationwide and in LA County. Think about that for a second. One third of all murders do not produce an arrest. But in LA County, the victim is a black male, the clearance rate drops from 60% to 30%. Two thirds of all murdered black men do not see their murder resulted in an arrest. The state has renounced this monopoly on violence. It has given up trying to enforce its laws against physical violence against black men in LA County. That leads to violence. And the drugs oftentimes come to that violence and that the drugs went away. If we consolidate the drug market and legalize drug markets, the underlying social challenges that lead to violence aren't addressed, there's no reason to expect the murder rate will drop that much. The nature of the murders will shift from the dispute over drugs, to dispute over women, to dispute over property, dispute over something else. But an underlying social and emotional pressure that leads to violence won't change because the broader structure is that that make life challenging in those areas. Moreover, I mean, don't oversell the point, right? There was a spike in murder between 84 and 90. That spike in murder comes from the rollout of crack and the instability that crack markets created, right? That is a causal story tied to prohibition. If you crack, we're illegal, you would not have seen that murder spike. But a spike from 800,000 to 10,000, it was already at near historic highs before a crack appeared on the scene. Other aspects, people might steal less. That gets even more complicated. Some people, when drugs get cheaper because they're legal, they'll steal less. Other people get more addicted and they'll steal more. And the way that plays out in practice gets incredibly complicated. But the net impact of legalization on criminal offending, if all we do is legalize, is nowhere near what people think it's going to be. People point to Portugal as this great story. They decriminalized and everything got better in Portugal. There are a couple problems with that story. One is that Portugal did not just decriminalize drugs. They also introduced widespread treatment and a universal basic income policy. There's a lot changing at all at once. But here's the thing I find so amazing about the way people praise Portugal. The law in Portugal decriminalizes possession and consumption, but not the manufacturer, distribution or sale of drugs. Do you know what other law kept consumption legal but criminalized the production, distribution and sale of an addictive substance? The Volstead Act, the law we call prohibition. The thing we praise in Portugal is literally the law we had for prohibition. It's the exact same law. We point to Portugal as this amazing success story for adopting prohibition. Our prohibition, capital P prohibition. There's a lot more going on there than that. And simple legalization all by itself will not accomplish what we think it's going to accomplish. Now the attack from the right is I just undermine the argument for prisoner reform. If everyone in prison is there for violence, good, right? Isn't that what we should be focusing on? To which I say two things. One, prison mass incarceration, the rise of incarceration in the 80s and 90s did play a significant role in reducing crime. At no point was it the most efficient or effective way to do so. There are many other things we could have done and there continue to be many, many things we know we could do that work much better. It's like getting gangrene in your finger and so you chop off your hand. Yeah, that stops the spread of gangrene. It worked. Maybe a shot would have worked better and you could have kept your hand as well. So yes, prison worked, but other things work far, far better. Second, yes, crime has huge social costs attached to it and we do not want to undersell those costs and those costs are concentrated by race and class, right? They tend to fall disproportionately on poor and more minority populations. We do not want to be glib or naive about crime. But prison has a whole host of costs too. Costs that are hard to measure as a result almost never get discussed when we talk about the cost. We will talk about the cost benefit of prison versus crime. We look at the cost of crime and the dollar cost we spend on prison, the 50 billion state spend on prisons every year. But that's not really the cost of crime, right? A study in New York showed that in the short to medium term, one year in prison results in two year reduction expected lifespan. Release from prison is clearly the high risk of death from overdose because you go from taking expensive low quality drugs to cheap high quality drugs. Prisons that cause a bankruptcy amongst families on the outside because of collect calls and travel. Half of New York state's prisons are more than 200 miles away from New York City despite the fact that half of New York's inmates come from New York City. They think of the travel costs and financial costs, the emotional costs of that. Prison is a vector of tuberculosis, HIV and STDs. It destabilizes marriage markets and dating markets. Most marriage and dating pools require the gender balance around 50-50. In some high incarceration neighborhoods, it's 60-40, 60 females for every 40 men. And that fundamentally alters the nature of family formation, romantic relationships, child raising, and a whole host of other social factors. One of the more frequent dog whistle emails I get from people when I write an editorial on this is they make vague references to single parenting. The classier ones just say that. The less classy ones make the racism explicit. But one thing they never ask themselves is why might there be a disproportionate number of single parents in high crime neighborhoods? Maybe because there's a disproportionate number of men who can't actually be there to raise the kids. They actually play an important role raising when they're not locked up. And the reason why we ignore these costs, why we allow them to persist is an important thing to realize about the racial geography of criminal justice, especially in urban communities. Prosecutors in particular are elected by the county and leave New York City for a second and go to any other city in America. The city is part of a broader county. Crime tends to be contrary in the city. Political power tends to be contrary in the suburbs. Those suburbs can be richer, safer, more conservative, and wider. They tend to feel all the benefits of a tough on crime response. They feel safer going to work. They feel safer going to the city on a Friday night to see a show. When it comes to drugs, they feel incorrectly that drugs aren't gonna come to their kids in urban school. They will, but they can lie themselves a little better at night. But they don't feel the costs, right? It's not their brother, it's not their uncle, not their nephew, not their sister, not their daughter, not their father, not their mother, who's being needlessly stopped, needlessly detained, needlessly arrested, needlessly shot during an encounter with the police, needlessly charged, needlessly prosecuted, needlessly convicted, or needlessly sent to prison. It's not their family that suffers from tuberculosis, it's not their family that suffers from divorce, it's not their family that suffers from single parenting, it's not their family that suffers from the death and the drug overdose, that the financial shock to the inability to find jobs upon release, the inability to hang out with families, to fact that their public assistance is now vulnerable, that their grandparents kind of have their kids over their house because they might lose their home, if they kick you out of crime while visiting them, or kids who are crime near their public house if you cause them to lose their apartment, but they experience none of that, and it's not remotely on their radar, and it's not on their radar because there's no social connection between the two populations. It's the white suburbs electing prosecutors who impose the law in disproportionately poor, disproportionately minority urban areas, and the separation of costs and benefits leads us to dramatically overstate the benefits of crime reduction and ignore the whole host of costs that come from an aggressive enforcement. And it's a serious challenge that we face and that no one, as far as I can tell, has started to talk about how can we better align incentives so that the people who actually feel the cost of over-enforcement also are the ones who have the most say in what that enforcement should look like. Because the fact of the matter is plenty of minority communities are actually fairly tough on crime, right? That's what Jim Forman's incredibly important book, Lock Up, everyone's about, is about how in D.C., the first day of the majority black government was actually quite tough on crime, because they are the ones who bear the costs of crime. But one, the thing about the D.C. leaders is they were always all of the above, right? Not tough on crime or social policies, tough on crime and social policies, right? Get the gun off the street and fund our schools, not get the gun off the street instead of funding our schools, which all of them have the suburbs framed the debate. And also, minority urban leaders tend to be much more sophisticated, right? There's evidence that whites and blacks are often equally punitive, but in radically different kinds of ways. It's much more expressive for whites. This is bad and I wanna see it punished. While black responds to much more, this is a problem and I want it fixed. And the kinds of criminal justice responses that they demand are therefore different. The average crime victim actually has a much less punitive attitude towards crime than the average voter and then the average policy reflects. And that's because the average victim of a crime is a young black man who understands and has experienced what the overreaction looks like as well. And therefore has a much more often sophisticated take on what the proper response should be. But our elections are set up to undermine, to sort of remove that role. Unfortunately, we remain deeply in denial about the central role of violence. Just before my book came out, laying out that my editors were not let me mangle all their page counts to put it in. Vox ran a survey of about 3,000 Americans nationwide, brought them up by Liberal, Modern, Conservative and asked them several questions, to which I'm gonna show you here. The first question was, do you think most people are, majority people are in prison for drugs? And the light blue is people saying yes, there's 50%, everyone from the average on the left, then Liberal, Moderate and Conservative left to right. Majority of all three groups think a majority people are in prison for drugs. That's a problem, but we can address that problem. It's the next question that kind of fills me with a little bit of dread. The next question was, do you think we should punish those convicted of violence less when those people pose little to no risk of recidivism? So no public safety, we should cut back on punishing those who pose no safety risk. And a majority of all three groups, including 55% of all those who identify as Liberal, said no. They're not ready to cut back on punishing violent crimes, even if those people can think of violence as pose no threat to our safety. Everyone, left, center and right, don't want to admit that we have to change this. It's starting to shift, you're starting to see people address this issue, they're starting to acknowledge it, it's a slow, torturous process, but at some point we have to have this question about what to do. And there are things we can do, there are plenty of ways to address crime. Some of them, like cure of violence, run out of here, that actually seem to work quite well. But we resist them. In fact, Chicago, Illinois, was funded cure of violence in Chicago, defunded cure of violence, despite its apparent success, and then promptly when violence and shooting and murder went up, decided not to refund cure of violence, but to adopt new mandatory minimum sentences for drug crimes. It's just an instinct we just can't seem to fight. There are things we can do, we should expand parole for violent convictions. Most reforms exclude anyone convicted of violence from parole expansion, in most every reform we see in the past five or 10 years. California tried it, they let those prior to violent records be paroled, and what they found is that amongst these long serving inmates, they allowed it early, their recidivism rate was one-tenth the state average, 5% versus 50%, because they're older and old people don't commit crimes. It's the thing about violence, you age into it, and you age out of it. The term I never let my students ever use is violent offender. It's pernicious. I write my book, Never Use a Term, Violent Offender, you know, with every time I edit the book, I find it, I found it sneaking its way back in. It's an incredibly seductive phrase that just rolls off our tongues, we use it all the time, but the problem with violent offender is it defines violence as a state. You are a violent person, but violence isn't a state, violence is a phase you age into and subsequently age out of violence, and to describe it as a violent offender, denies them the fact that they're gonna eventually stop being violent. Some of it's hormonal, hormone shift, testosterone levels drop, serotonin levels shift, uptakes, move around, and you just become less violent. Some of it's purely physical. Even if I were just as violent today as I was when I was 20, like I'm 42 now. Things creak and move more slowly and just hurt more, and I would have lost the bar fight quickly when I was 20, but I'm gonna lose it twice as fast now, and I know this, I'm well aware of how slow I am now, and so older people just don't do as much dumb stuff because they know they're gonna lose, and they're just not as dumb. And some of it tragically is also social. Two of the great pathways out of criminal behavior are marriage and employment, and what does prison do? It gets in the way of marriage and employment. We should give local communities more say. Like I just said, more local areas have a smarter sense of what really works. We should stop playing the suburbs, dictate what happens in cities. We should try to de-politicize prosecutors. We are the only country in the world, the only country that elects its DAs. No one else does this, not a single nation does this but us. We're also in the only country that elects judges, and while there's a history behind this that's understandable as a way of avoiding corruption in practice, it creates huge problems that incentivize DAs being incredibly aggressive against low-level people and to hold back against rich people, powerful people. I've actually wrote an argument saying in fact, even if there's no money involved in DA elections, the very presence of a DA election would have led sidevans to not charge the wine scenes or the Trumps because the risks are just politically too great. You don't lose elections based on what you do day to day. You lose elections based on that one bad case. The one guy you should have convicted or didn't are the one case you try and lose. And we should spend more time funding what we know works. We know what things work. We have a growing knowledge of things that really fight violence on the street and we should focus on those more and spend less money on prison and more money on that. Easier said than done for I'm not gonna explain to you in a second, but that's what our goal should be. So the last bit, private prisons in the public sector. Like I said, about 8% of all prisoners are held in private prisons and 92% are held in state facilities. Most private prisons are in just five states, about 45 states. Don't really have any people in private prisons at all. There's no evidence that prison states with more private prisons saw any faster growth or just say almost slower of a decline. There's no evidence at all that private prisons are making a difference. More important, if we're gonna attack private prisons, we're attacking the wrong thing because the profit motive in and of itself is not the problem. So here's the classic private prison horror story. And I agree, the story I'm gonna tell you is a terrible story. We pay a prison per prisoner per day. So each prisoner they get, they get a little bit of payment for each person they have every day they've got that person in their prison. And of course, therefore they have incentive to spend less than that per diem to make a profit. So they're gonna cut training, they're gonna cut staffing, they're gonna cut food, they're gonna cut programming because they need to cut those costs in order to eke out a little bit of profit. They're gonna take that profit out of the prison because why put in the prison and use it for their own private purposes. And at the same time, they're gonna fight hard against reform because prisoners coming back is what keeps them paid, right? And the reduction in the prison count will actually cost them money. And so they fight tooth and nail against every single form you can imagine. And everything I told you happens. Everything I told you is terrible. And everything I told you happens in Louisiana with no private prisons. The state pays county sheriffs per prisoner per day. And the county sheriffs, publicly elected officials, take the public money from the state government and cut funding in their publicly funded county jails because that's how they make a profit. And they take that profit and they use it to fund their local sheriff's department. They buy the guns and the cars and the vests they use outside the jail from the prisoners. And therefore they fight tooth and nail against any reform because that's how they fund their department is through the prisoners from the state that are paid to keep their county jails. It is the exact story we hate but it has nothing to do with private profit and everything to do with public incentives. It's about the incentives. Give public sector actors terrible incentives, they will act terribly. Public or private doesn't matter. Conversely, give private officials good incentives, they'll act better. So Australia just opened a prison run by Sodexo who used to provide our food, maybe provides yours, it's terrible but the contract is based on recidivism not per prisoner per day. The more people don't come back the more they get paid. Now they have incentive to actually focus on making sure they don't come back because that's where they make their profit. Now I don't gain the person to come back but I'm making sure they stay out. What are the five? I, Texas, Arizona, someone, someone, and someone. Mostly I think, but I wouldn't say that for sure. It's somewhere in my book and because I wrote it down I didn't properly forget it. So yeah, I can't remember off the top of my head which five states they are. And also I don't really remember because not much turns on being those five states because they seem to be the same as other states. Florida actually is another one. And by a point out, people all then talk about how horrible conditions are in private prisons. They've adjusted their website recently but for a while Florida's DOC website actually had like 10 myths about the DOC you should know. And myth number one, the most important thing they wanted to make sure you knew top of the page number one big bull print our prisons are not air conditioned. They are proud of that. Do not think for a second that most prisons in Florida have air conditioning. We don't and we're proud of that. But every single private prison in Florida did. So even in terms of conditions it's not always such a clear story what's going on. Now here's the thing about incentives. People will tell me private prisons make $400 million a year. That's a lot of money. And that gives them a strong incentive to push for tougher prison growth. And it's true, it's a lot of money. But here's the thing. We spend about $50 billion a year on prisons and about two thirds to three quarters of that is wages to the guards. It's almost all going to the guards. The marginal cost, the extra costs of one more prisoner is very, very small. It's almost all wages. That's about $25 billion in wages and benefits compared to $400 million in profit. In case it's not clear, that's a graph to put it in comparison. The gray line is private prison profit and the orange line bar is public sector guard wages. They are incredibly powerful and they have a lot at stake and they will fight hard for that. And state after state after state one of the actors most effective at killing off reform are the guards. Or at least making sure they don't lose their jobs which basically means you can't save any money. New York state, she had 25,000 prisoners between 1999 and 2010. Yet the amount we spent on incarceration went up over that time. Fewer prisons, more money because the guards kept more money going to them. They are very powerful actors. They are very subtle actors. They have a tremendous amount of influence. The politicians, they think prisons bring jobs that's somewhat overstated but they believe it and so they have an incentive to fight to keep their prisons because they believe it brings jobs and economic benefit to their community and that's what keeps them voted in. More important is the census. Sounds boring but it's not. Where does a prisoner live for the purpose of the census? Does he live where he was arrested on that street? Or does he live in the prison at the time of the census enumeration? It matters. Because that's how we decide where we draw congressional boundaries. It's based on where people are. Where state representatives come from, where the people are. So where do they live? In 46 states they live in the prison not in the community from which they came. The four exceptions New York, California, Delaware, and Maryland. The fact that they're all deep blue is part of the story. In 44 of those 46 states they cannot vote while in prison. Maine and Vermont, you can vote in prison. Nowhere else in America can you vote in prison. So in 44 states, those people live in a neighborhood and count as living in a neighborhood where they are not allowed to vote. They are bodies but they're not voters. It is, and I use this phrase quite intentionally, a five-fifths compromise. They count as five-fifths as a person and that's zero-fifths of a vote. And those people are disproportionately black and brown men. And those prisons, especially since the prison boom of the 1990s are increasingly in remote rural areas. Disapportionately white, although complicated narrative a little bit, prison towns tend to be less white than other rural towns. They are whiter than cities across the South where most of these prisons are, but they tend to be more minority than otherwise identical small towns. But still, disproportionately white towns in disproportionately Republican parts of the country have thousands and thousands and thousands of men living in them who count as bodies for their representation but aren't allowed to vote. And all across the country that is a huge barrier to reform. Because Republicans know, and I don't mean this in the ideological point of view, it's just a fact of how this plays out ideologically, that to move those votes back to the neighborhoods where they come is to undermine their legislative majority. All four states I mentioned, New York, California, Delaware, Maryland, all four passed their laws, moving the bodies, is counting back in where they came from, not where they're locked up. During a time when the Democrats controlled the Senate, the House, and the governor's mansion. And for New York, they were considering that six and a half minute window when the IDC didn't exist. Actually, the IDC, it wouldn't have happened. But there was a six month period without it, and this is one of the laws they rammed through on purpose during that window. Although, even then, Republicans were able to split an upstate Senate district in half to create a second, yet a new Senate seat because they knew that the result of this ship was going to be a net loss of one in the Senate. And the Senate's closed and knew they couldn't afford to lose that one seat. It's an incredibly dry bureaucratic issue, but it plays a hugely important role. There are state reps all across the country who, if we actually started counting prisoners as living where they come from, not where we locked them up, the size of the Republican majorities in state houses across the country would shrink, significantly, perhaps even flip. That is a strong, dry, but incredibly important barrier of on the political public sector side, not the private sector side. And again, sort of this urban suburban split that we have. And finally, the politics of it. There's a clear political defect that happens in incarceration. If you're too lenient, we know about that story. That's Willie Horton. For those of you who don't know Willie Horton, I realize Willie Horton kind of dates myself here. Willie Horton was an inmate in Massachusetts prisons in the 1980s. In the 1980s, Massachusetts had a program that allowed inmates, even though serving long sentences, to go home for the weekend to try to sort of stay connected to their family and then come back. Willie Horton didn't come back. Willie Horton ran off to Maryland, broke into a home, beat up the man who was home, raped his girlfriend and got re-arrested. It was a classic racial story, right? Willie Horton was a black man and the family he attacked was a white woman and a white man. And when Michael Dukakis, the governor of Massachusetts, ran for president, Willie Horton became one of the most famous overtly racist attack ads of sort of modern time. Its actual impact is very slight. To date it, it ran on cable in 1988. That meant 1% of all families saw the ad because no one had cable in 1988. But the media hoopla made the ad famous and everyone learned a lesson that one mistake will get you. Because here's the thing that I discovered about the program that you never hear. That program had a 99.9% success rate. Every single person came back without incident, but one. And we know him by name and the only reason we know the program exists. This is nothing that's gone away. In 2013, Arkansas passed a range of sentencing reforms that actually worked quite well. In a single year, the prison population dropped by 7%. But towards the end of that year, one single parolee, Daryl Dennis, committed a murder. One man in a large state commits a single murder. And the parole board was so terrified by that one murder and what it meant for their careers that he wouldn't make that one mistake, that one mistake, that they shut parole down so fast in Arkansas that that 7% decline became a 10% increase the following year. Based on the actions of a single parolee committing a single murder. Because the problem is that we don't see the excessiveness. If you lock someone up in prison for too long, how do you show he shouldn't have been there? How do I show you that Bob would not have committed a crime had you not locked Bob up? I can show you that you made a mistake letting Willie Horton out of jail, prison, or I can show the weeping and grieving family and say you made a mistake in this case. But how do you show the fact that you're aggressive? This guy, you didn't have to be aggressive too. I can show you an aggression, or I can show you table 16B, so that risk pool A is being locked up at far too high a rate, but table 16B is never gonna win an election against some grieving family saying if you had just been tougher, right? And so of course we're gonna be too aggressive because the politics of this, and we're the only country with this level of direct democratic accountability for our criminal justice system. And these are the costs that arise from it. And we're not trying to fix these underlying piping. I think there are things we can do. I think we can try to make people less directly, mealy directly politically accountable. I think we can create guidelines and risk assessment tools that make these kinds of fears less immediate. But we have to think more carefully about the exact way these systems are designed, not just trying to pass laws we can while we can. Because here's a great example to sort of, I guess end with. In 1970, Congress abolished all mandatory minimum sentences for drugs in the Conference of Crime and Drug Control Act of 1970. And one group got up on the floor of the house and said mandatory minimums are a terrible idea. They are bad policy, they are bad for morality, they simply should not exist. Was then Texas Representative George H.W. Bush, who was vice president and president, brought them all back. And now in 2017, we're trying to get rid of all those mandatory minimums again, except for heroin and fentanyl. How long before we bring them all back again? It's just a cycle. We keep doing it over and over again. We pass through reforms until things get bad and everything falls apart because this system will always overreact to the bad and underreact to the good. And we need to address these kind of structural problems that we face. And so there are things we can do, but the stories we're telling ourselves that's all low-level nonviolent drug offenders, they're not gonna be the stories that are gonna get us to where we need to go. We need to confront prosecutors and their power. We need to think differently about how we punish those negative violence. And we really need to understand the power these public sector groups play and the screwy politics that we face. And we're willing to confront those. I think there's a lot we can do. I'm actually, for all this, I remain optimistic about where we can go. But only if we change the direction that we're heading. So that's it. I look forward to any questions you have. Thank you.