 Trevor Burrus. Aaron Powell. Welcome to Free Thoughts. I'm Trevor Burrus. Aaron Powell. Joining us today is John F. Faff, professor of law at Fordham Law School and author of Locked In, The True Causes of Mass Incarceration and How to Achieve Real Afform. Welcome to Free Thoughts, John. Thanks so much. It's discussed a fair amount. I think it's quite widely known. My bubble is pretty bubbly though because maybe people don't understand how many Americans are in prison, but how bad is it? So in any given day, there are about 1.5 million people in prison and about another 750,000 people in jail, either waiting trial or detained for a misdemeanor. What's the difference between prison and jail? So prison is where you go if you're convicted of a felony, which is a crime that carries a sentence of at least one year. Jail is used either for misdemeanors where the sentence can't be more than a year or for pre-trial detention, people who don't make bail. There's variations across states, but that's roughly how the rule goes. Are they different sorts of institutions? Is it different inside a jail than it is a prison? It is. Partly the turnover in jails is much greater. So in any given day, there are about 750,000 people in jail, but about 10 to 12 million passed through every given year, which is a staggering number we tend not to focus on. For prisons, there's about 1.5 million people in and about 2 million people passed through each year. So there's not that much, the same level of turnover. They're also run by different bureaucracies. Jails are run and paid for by the county, and prisons are run and paid for by the state, which has important incentive implications, but also I think prisons tend to be better funded oftentimes, better maintained just because they're coming from a much bigger budgetary source. How does that number compare to the rest of the world? In terms of incarceration rates, there's really no one close. Technically speaking, in the United States, it has the second highest incarceration in the world right now. The state shells with a population, country population of 99,000, a prison population of about 600, is currently ahead of us by about 50 people. They let 50 go. They would drop back to second. But outside of that one exception, we have an incarceration rate, if you can buy in prison in jails of about around 700,000, places like France and Germany are at around 100,000, England's at 200, and they're the highest in Western Europe. The only countries in the world that are close to us are places like Russia, Cuba, Kazakhstan, not exactly countries we tend to compare ourselves to. But is it fair to make those comparisons when something like North Korea might not be using prisons per se in convicting of crimes, but actually mass work camps? The whole country is a prison. The whole country is a prison. So there are 100,000 per 100,000 incarceration rate possibly. My response to that is that if your defense is, but what about North Korea, I think I've won the argument. Good point. That's probably generally true. Crime in America is pretty high. It seems that that would be, it's higher than Western Europe. To be fair, outside of lethal violence, we're about middle of the pack compared to Europe. We're not really have that much of a higher crime rate than Europe. For lethal violence, we are exceptionally higher, although lower I think than Americans think. But I think that the right crime comparison to make to keep it within our country is that our crime rate today is about where it was in 1970. But our incarceration rate is five times higher. So unless you think Americans are sort of five times more prone to violence today than they were in 1970, that seems hard to justify. If anything, I'd argue we're less violent today, independent of prisons than we were back then. It's harder to commit crimes. It's hard to steal a car now. It's hard to steal a car radio. We have better medical care, so murderers become aggravated assaults because people live longer. People play Xboxes and so they're not out doing stupid things with their friends. What I think is worth noting that the boomers were uniquely violent cohort. One of the many things that they just screwed everything up in America about long running theme of this show. It has to. What's wrong with the boomers? I'm glad I can add my part because when it comes to crime, they've been particularly bad. I think what a lot of people don't realize is that the much maligned millennials, they were equally large of a cohort, sort of total number as the boomers. And they hit their sort of peak crime offending years when crime was at service lowest. So the millennials aged into and are now aging out of crime during period when crime fell. So it seems like as a cohort, the millennials are just less violent. It's pathological laziness. It's hard to snapchat a crime. I mean, I guess sexting would be maybe the new crime for millennials, but it's not a crime wave. But I mean, we're talking about all these statistics, but one of the things that you do a good job of pointing out in the book is that there's just a ton we don't know also. What kind of things don't we really know? I mean, I'm sure there's a lot of things you as a researcher would love to have better data on. So here are some of the amazing things we just don't know. How many Americans have a criminal record? No idea. We have survey data that gives us estimates, but we don't really know. But it could be as many as 60 or 70 million people have a criminal record. In fact, some people are going to hypothesize that one reason why labor force recovery in the United States is incomparable that in Europe is there's literally 60 million people who are struggling to find a job that Europe just doesn't have a similar kind of, they don't have the similar records or the similar treatment of those who have records. I can't tell you how many unique people have been to prison. I can tell you how many we admit every year. I can tell you how many leave every year, but how many of those are people cycling through, how many of them are unique people. Very hard to say how many people have had that experience. We have no data on what prosecutors do, nothing. We don't know how they choose their cases, why they do what they do. We barely even understand what their offices look like on the inside. And as I point out in my book, they are the single most powerful actor in the system and we have just no data on them whatsoever. Why would those numbers be, I mean, why wouldn't we have that data? How many unique people are in prison or have been in prison seems like, I mean, the prisons have records, there's records at the court level, so why can't we get that data? So it exists, but oftentimes it exists at sort of the state or county level. And so gathering that's very expensive, compiling it together is very expensive. I figure out how to make it comparable is expensive. I mean, one of the things that I find really remarkable is the FBI gathers crime data and the Bureau of Justice statistics gathers data on sort of everything else. And you actually can't merge their data together. They use different codes for crimes in ways that don't overlap well. And so you can't really just slide. So even the two big federal bureaucracies, you can't slide together. So imagine you can buy New York data with California data. You can do it and they're working on it, but it gets even trickier. So there is a prison data set that allows you to watch a person enter a prison in New York, you can watch that same person leave, you can watch them enter again, exactly what you want to be able to see. But you can't do that then with New Jersey also, right? So you commit a crime in New York one week, two years later you commit a crime in New Jersey and then you commit a crime in New York again. And the data you have to show is two different people. So you have two different ID numbers. Like you can try to match names, but there's typos in the records and they don't keep the same kind of records. And it's just really hard. And we're slowly trying to do it, but we just underfund our data agencies as such as staggering degree. I mean, the BGS, the Bureau of Justice statistics, they do amazing work. And you have to try to balance the federal budget that they keep shaving their budget down by like $5 million at a time. Like you're not going to save anything for $5 million, but for like a $50 million agency, that $5 million cut is huge. And so they just don't have the resources to do what we need to do to figure out how to really understand how the system works. So if we have roughly the same crime rate as we did in 1970, and but we've got five times you said as many people in prison as we did then. Yeah, five times the rate. What are those extra people in prison for? I guess how much of that? Okay, so the rate, so the population is already controlled for in there. Right, exactly. So what are those extra people in there for? So here's what makes reform very tough. I think there's room for reform where you'll immediately see why the politics is going to be very hard. There are almost as many people in prison today for murder as the entire prison population in 1970. There are about 300,000 people in prison total in 1970. There are about 250,000 people in prison for murder. A lot of the people in prison, over half of all people in prison are there for violent crimes. That's not to say that that works from the deterrence point of view or that we're incapacitating effectively, but to really push back. We're asking really hard questions about the way we punish people convicted of violence. But you make a very big point. I mean, part of your book is to explain what is not causing this problem. And I'd go to a lot of criminal justice reform meetings and I'm part of the kind of community of people trying to fix this. And there's a few things that you always hear and you point them out in your book. You actually just call it an all-capitalized standard story. The things that everyone thinks is causing this. So the first one is the drug war and you say no. So at a simple level, it's no because as it stands today, while Americans believe about half of all people in prison are there for drugs, the actual number is 16%. So less than one in five people are there for drugs. Almost everyone is there for a property or like I said, over half are there for a violent crime. But half of all federal prisoners about are drugs. That's true, but the feds are about 10% of all prisoners. So the feds are 10%. The states are 90%. And the states all kind of look more or less like each other. And no one looks like the feds. So the states are all kind of in that 16% to 20%. And the feds are uniquely in that 50%. Because the feds just have very strange jurisdictional rules. When I was a federal clerk in a federal court, the judge and I were walking home and we got mugged together. His offense is a federal crime. Mine would have been a local DC crime. I wasn't at sufficiently high ranking a federal employee. You want to get a federal arson charge. You literally need to burn down the White House. That's what it takes. So the states just look different and they're about 16%. That's still all told about 200 and some thousand people. Letting those people out would be a significant drop. And no, it's not clear they should be in prison. But then it gets a little more complicated. So the immediate rebuttal I always hear is, oh, but that's too narrow an accounting. What about the guy who was in prison for theft because he stole the fetus drug habit? What about the person who was in prison for murder because they killed someone in a drug deal? Those are property and violent, not drug crimes in our official taxonomy. Drugs are towards the bottom. But they're still caused by the drug war, fair point. But not exactly. So to start, almost everyone in prison for drugs is there for trafficking. Now, to be fair, trafficking is going to be a fairly small amount of drugs. Does that just mean that they're over a weight limit? Right. And in some states that weight limit is fairly small. But in the end, when you dig into sort of what little data we have that really digs into the backstory, not just the official record, but asking inmates like, what did you actually do? Most people in prison, they're not kingpins, they're not moving like giant tractor trailers of heroin, but it's not like the small amount in general. So if we legalize drugs, and so you start being able to buy your drugs at the corner of drug dispensary, those drug dealing jobs are gonna go away. But the people who are in prison for trafficking aren't gonna suddenly get legal jobs, right? Those jobs don't exist. They're selling drugs, not because they want to sell drugs. They're selling drugs because they're systematically cut off in the primary labor market. They're undereducated, they lack the social connections to get the jobs. They're sort of racially excluded from the jobs. And so if the drug market goes away, the people who are there for trafficking are gonna have to turn to something else illegal to get by, right? So the drug offenses will go down, but the property offenses will go up. And we're actually seeing this in New York where the New York Times had an article recently saying that street gangs in New York City are starting to shift away from drugs and towards identity theft, right? Because the drug market economics are changing and they're trying to find that next new thing, and that next new thing is not, you know, coding at Google. They don't have that access for the education or the training to do that. They're trying to other ironically sophisticated, no illegal activities. It seems that something, but like fighting the drug war causes a bunch of things that might have like corollary effects that are not, wouldn't be captured in the statistics. For example, higher police presidents in urban neighborhoods who are mostly looking for drug crime, but in the course of looking for it, have more interactions with the police and put more people in prison for other things. So we see harassment of minority neighborhoods and everyone's not going in there for drugs necessarily, but you could catch them doing something so that could cause also more incarceration. It's true. Although the catch is that the drug markets, and one of the things that complicates the whole prohibition causes violence argument, is that there's evidence increasingly that, a lot of it is that the drugs came through where the violence already was, right? There's evidence that sort of worldwide, history-wide, if you take a bunch of young men and deny them upward mobility, and then the state doesn't really enforce the laws against murder, they will turn to violence amongst themselves. For one reason or the other. This is a point that Julia Liovi makes in her fantastic boquettoside. And so she looks at LA, that's where she was a journalist, and she points out that, look at South Central LA. Young black men with no upward mobility are systematically cut off from the job market, and the clearance rate for murder, the rate which the police arrest people who, for murder, the overall clearance rate for LA County is 60%. So, shockingly, one third of all murders produce no arrest at all. That's kind of amazing, because a lot of murders are pretty easy to solve. Right. Once you take out the easy to solve, the actual clearance rate for complicated murders is vanishingly small. But for black men, the clearance rate is 30%. Two thirds of all black male murders do not result in an arrest. So the state is not enforcing its rules against violence, and there's no upward mobility, and so they turn to violence. And in that environment, drugs will come. There aren't other things they can do, right? And so drug selling becomes appealing. So if you were to legalize drugs, but not solve these underlying structural problems, it's not clear the murder rate would drop that much. Don't oversell that. There was a clear spike in murders from 84 to 91 tied to crack and the instability that market created. I don't want to say it's all just structural and drugs placed no role, but it's easily overstated. And that was true of prohibition, too, that the ledger of murder rise during prohibition isn't quite as clear cut as we'd like to think it is. Is that clearance rate, that 30% clearance rate for murders of black males? As you say, it's the police not enforcing the murder laws, but could it be, so we mentioned that if you, there's the easy to solve murders and there's the difficult to solve murders and there's the wonderful essay, The Simple Art of Murder by Raymond Chandler, where he's lambasting the British cozy murder mystery writers like Agatha Christie, because he's like those kinds of murders where it's some elaborate thing are really easy to solve. You mean where you call everyone to dinner and you go to dinner and you poison some tea cups or something, but that the hard to solve murders and the real murders are the random, the guy getting shot in the alley at night when it's raining, and so could that low clearance rate be that if this is drug related violence, it's gang related violence that's simply the kinds of murders that occur in that community look more like the hard to solve ones than the easy to solve ones? I mean that's part of it, but there's also a certain sort of circularity here that because the people don't trust the police, because the police oftentimes don't do a good job, they're less willing to come forward and talk, because if you don't get the guy and you're the one who talk, now you've exposed yourself to risk. So part of it is that, yes, these are hard to solve murders, but they're also harder to solve because the people don't trust the police because the police aren't trying to solve them as aggressively as they could in the first place. And part of the Yovie's book is sort of looking, no, she's an LA Times journalist, she's sort of embedded with these homicide bureaus, and her point is that there are some cops who really work hard and they do get their person for these tough cases, they will just go back to the house 10 times and get it, but lots of times they sort of close them out some more administrative way, because it's just not worth, they don't see it as being worth the effort. You've discussed New York and LA and different jurisdictions, which reminds me of a great just observation you make early in the book and you continually come back to it in different ways, and one way you describe it is that there are 3,144 stories of prison growth, of incarceration growth. Why 3,144 stories? Right, so because there are 3,144 counties, although technically speaking, some states aggregate their offices up, so it's probably about 2,500 DA offices nationwide, but the idea here is that we tend to think about prisoners as these prisons as sort of these state institutions. There's the New York state prison, there's the Tennessee prison, there's Florida's prisons, but no one just goes to prison, right? Someone has to decide to file the charge and seek out either the conviction or the plea bargain and that person's a prosecutor, and they vary by county, and there's huge variation within a state across counties in terms of sort of how they behave. So again, sort of looking to my home state of New York, New York has the longest sustained decarceration in the United States, right? We started shrinking in 1999, since then we've shed about 25,000 prisoners from about 80,000 to around 55,000, so one of the bigger success stories that we've seen. What's interesting is that New York state didn't really decarcerate, New York City did. Most other counties actually have more people in prison now than in 1999, New York City doesn't, and we're such a big enough portion of the state that we drove things down, but in most states that show decarceration, if actually you look at county by county, some go up, some go down, it's generally urban counties that are going down and rural counties that are going up, but it very much is this local DA who we rarely talk about, who has tremendous power, who really determines who goes to prison and who doesn't. Which is also part of this problem of understanding that most prisoners aren't federal, and then all the different policies in all these different states, we have Louisiana who's, I think the highest incarceration rate in the country, in the highest incarcerated country, and then I think maybe Maine is the lowest or somewhere in the Northeast, one of those states up there. So it's all very different, so solving the problem, it's not just a problem, it's many different problems together. But one thing you mentioned is longer prison sentences too, that some of these local jurisdictions, some people say that longer prison sentences are what is causing this. A standard story, right. Like three strikes obviously is the biggest example. And you say that's not necessarily true. It's not true. And that often times gets back to how varied the story is, that we are 50 states and 3,000 counties, and every state has its own different set of pathologies. So you read these articles that are this giant increase in people serving life sentences, and it's happened. But over a quarter of those sentences are just in California. So California imposed a lot of life with parole, option of parole sentences, most other states don't. And something like 90% of all three strike sentences nationwide have been handed down in California. And you know, juveniles getting L-womp, life without parole. Something like half of all juveniles who got life without parole have been lived in like 10 counties. So each county has its own defects. They're very, very spread. But the fact is is that, yes, our sentences are longer than European sentences. And if they were shorter, we'd have fewer people in prison. But to explain the growth in prison is not really clear sense of gotten any longer. And they're surprisingly shorter than what people think. I recently asked a bunch of undergrads at a really good liberal arts college, how long do you think like the median time spent in prison or someone convicted of violence is? Like assault, you mean? Yeah, like assault, robbery. Say maybe two and a half years. So you came in under, it's actually four. But they were guessing 30, 40, like 20, 30 years. Oh wow, I do work in the area so. Right, but I think you asked me how long are they in prison? Oh, everyone's in prison for 20, 30 years and especially for drugs, right? Those are even longer. Because that's what you hear about. You hear about the world in Angelos is getting life without parole for their first time offense. But for property and drugs, it's one year. And for violence is four. And those haven't really changed all that much over the past 20 or 30 years, right? So again, if violence was two, not four, we'd have probably 25% fewer people in prison. It's not trivial. But it's much more being driven by admissions than by length of time. We were just admitting a lot more people today than we did 30 or 40 years ago. How much of this is different? So difference between states is difference in the specifics of the criminal law in that state versus I guess prosecutorial discretion or culture? I think it's more discretion or culture. That there are variations in law, but prosecutors spend their time doing the state level. It's almost entirely the stuff that every state agrees to be punished. It's all murder, aggravated assault, rape, larceny, theft, sort of the over-criminalization story that we're saying to the president for, you know, is a federal crime to not clean up your dog if he poops in the National Park in Minnesota, right? None of that really exists at the state level. There are occasional cases, but they almost never get prosecuted. It's mostly, you know, everyone agrees murder is a crime. They might differ about how much to punish it or how much to punish aggravated assault, but I think it's primarily driven by DA cultures. Not even across states, I think across counties. I think, you know, the DAs of New York City probably have more in common with the DAs of like Austin, Texas than they do with the DAs in like, you know, upstate New York. Should this trouble us? Because, I mean, so if there's any area that's kind of core role of government, it's protecting us and from these kinds of crimes and punishing the perpetrators of these kinds of crimes, that there's that much discretion, you know, that we've taken this like the primary role of the state and turned it over to what amounts to culture or whim of a handful of people. People that we do in law school necessarily would not trust deciding these things. Yeah, I mean, so it's interesting actually, I find my students who are in the DAs are sort of the ones as they graduate, I almost would trust them most. They tend to serve amongst my best students, but I worry about what office culture will do when they get there. I think you're right, but I think it's a little trickier than that. I think it's a combination of discretion with little oversight and an incredibly skewed form of political control. So I think there are two big problems with prosecutors. One is they have almost no metrics on what they do. Maybe they do sort of convictions per arrest and sort of the number they might campaign on. We don't really have any good insight about sort of what they're doing, why they're doing it, what drives it. So we're kind of voting based on sort of those one or two shocking cases. So that's one big problem. If we really understood in detail what they're doing and paid attention, maybe discretion wouldn't be so bad. The other problem is that we let DAs at the county level. It seems like this boring bureaucratic issue, but I think it has huge implications for how they behave because they're elected by the county, but they tend to operate, at least in urban counties, they tend to operate in the city. But the suburban voters tend to have disproportionate power. So you get this disconnect between cost and benefit. The prosecutors are spawning you the suburbs enforcing law in the city. The suburbanites feel the benefits of reduced crime. Their commute feels safer. They feel happier getting things at lunch when they're going to see a show on Friday night. They don't feel scared. But it's not their brother, not their uncle, not their son, not their nephew who's going to prison on necessarily being charged, on necessarily being hassled unnecessarily. And so it encourages the DAs, and to a lesser extent the police, who I think respond to the gentrified parts of the city rather than the higher crime parts of the city, incentivizes them to focus much more on reducing crime and ignoring the cost of that enforcement. And certainly it comes to urban suburban splits. That's where race begins to play an incredibly toxic role. So these white, wealthier suburbs who choose the prosecutor, who then gets to enforce law and pour more minority parts of the city. I think that racial gap creates an even broader empathy gap that leads to some really serious problems. Yeah, that fits with this, there's been this broader narrative recently that seems to dovetail with nicely, which is the recent elections in France, the results of that, that those areas of the country where there were actually terrorist attacks overwhelmingly voted against the nationalist person who wanted to shut down immigration. And you get similar stuff in the U.S., and you also on those same lines, the areas of the country that are most friendly to immigrants are those spots that actually have a lot of immigrants and it's like the white rural areas that haven't spent a lot of time around them. And so this power of like enabling people who have no experience with something and are therefore acutely and sometimes irrationally terrified of it to control how it's gonna be enforced against others seems like a problem. Right, I think that's exactly right. I think it's more interesting, my federal law in particular is so psychotic. You don't see 80 years for drugs in the state system. So those laws just don't exist unless you're literally bringing in like, a container ship full of cocaine, maybe. But otherwise, you don't get these, well, then Angeles cannot happen in the state system by and large. And I think it's because nowhere is the person with no contact with criminal justice more overrepresented than the U.S. Senate, right? I mean, in Albany, half of all assembly people in our lower house come from New York City, right? So the legislators already tilted towards those areas where crime tends to be, right? But in Congress, you have, you know, Wyoming has just as many senators as New York state does, right? And so half the population which has half the crime is all in 10 states. That's 20 senators. The other half of crime has 80 senators. And I think they are, this is the exact problem. For them, it's a symbolic thing that they don't have any connection to the cost of it. And so they pass these insanely harsh laws because they don't really ever have any contact with those who have really been impacted by them. Another thing that you address head on, which I get asked about a lot when I go speak and just in hanging out with people is private prisons. This is, seem to be taken up kind of just part of the anti-corporate, almost anti-citizens united, you know, corporate power thing. But it's been discussed a lot that, and it does seem pretty monstrous to have people making money off of incarcerating people. And so you can sell that. Do private prisons and their lobbying efforts, have they contributed a bunch to the incarceration rate? So here's the thing. The total number of people in private prisons is 8%. 92% in state facilities, 8% in private facilities. There's no evidence that states that have private prisons saw any greater growth in states that did not have private prisons. I think I said that right, right? There's no difference between the states whether you have them or you don't have them. And so there's really no indication they really matter all that much. And you're right. It's kind of disgusting to think about people profiting off of locking some up in a cage. But here's the catch. Private prisons made $400 million in profits the other year, the two major groups. It was CCA, now it's something else. It's called something else. They just changed it last like a month ago. And NGO group. We spend $50 billion a year on corrections. Half of that is wages. So the private prisons made $400 million. The correctional unions made $25 billion, right? That's profiting off of people being in prison. And every pathology that exists in private prisons exists in the public sector just at a bigger scale. So looking back to New York state, so people can think about private prisons that they have these terms sort of these minimum capacity terms. You must maintain this prison at at least 80% capacity or if not, you have to pay us as if 80% of our beds are full. People call the low crime tax, sounds terrible, it is terrible. New York state has dropped 25,000 prisoners and over that time now spends more on corrections than before, but New York state has no private prisons. But the correctional guard union keeps all these half empty prisons open scattered across upstate New York to keep the jobs and to keep the wages. That is exactly the same as the minimum capacity contract in a private prison. This public prison is half empty, but fully staffed. It is if they're getting paid for having those beds being taken up, right? So people say, well, privates do these things. I say, well, publics do the exact same thing, right? And it's not about profit, it's about incentives. So the classic private prison horror story is this and it sounds terrible. You pay a prison per prisoner per day. And so the prison cuts back on training, on staffing, on everything they can, on food quality, to try to get some sort of margin on each prisoner, right? And then they take those margins and they pull them out of the prison and use for their own private ends. And then they campaign hard to maintain prisoner count and fight reform because everybody in their prison is cash. In fact, having bad training and rehabilitation works in their favor because everyone who comes back is more cash, right? I agree, this is horrible. But what I've just described is the entirely public contract system in Louisiana, right? The state, facing capacity constraints, entered into contracts with local public sheriffs to how state inmates in public jails. And the sheriffs did this exactly as I said. They undercut spending, they took that money to spend on their own department outside the prison. It is the classic private prison horror story. But when it started, it was entirely public. Now, the privates came in later to help them build out the jails as sort of these collateral sort of groups that latched on. But the failure was entirely public, entirely about incentives. And so you could create private prisons with different incentive contracts. Maybe they work better, right? So Australia is actually trying this. They've created a prison in Australia, run by Sodexo, where the payment is tied to recidivism, not to capacity, right? So if these people don't come back, you start getting paid more. Pennsylvania just did it with their halfway houses. They terminated all their contracts. Now they have it sort of a recidivism incentive compliance term in their contracts. So I think we focus on the wrong things. They're not that big. The public sector unions are far more powerful, get far more money, have all the same problems. And really it's about incentives, right? And that if we gave privates better incentives, they would act better. And we give publics terrible incentives. They'll act just like the privates. And we've been focusing more on the inputs about why there are so many people going through the criminal justice system to end up in one of these entities seems wise. You mentioned recidivism, what you discussed in the book as part of the standard story, parole violations, parolee issues. What is the chance that someone ends up back in prison and then also in the more interesting wrinkle here is why is that question more complicated than it seems? Yeah, so the question actually has two answers to it. One is 50% and one is 33%. So the way the BGS counts things is you look at a cohort that leaves prison in one year. Then you ask what's the chance over the next five years someone ends up back in prison? And it's about one half. And that's a useful number. Half of all those leaving end up back in prison. But I think when someone asks you what's the chance of going back to prison? The question they're asking isn't what is the chance that somebody released from prison in 2010 goes back to prison? Right, they're trying to ask if you've ever been admitted to prison what's the chance you're gonna go back? And that's about one third. And that what that gap is reflects is that there are certain people who cycle through several times, right? So out of any given cohort, half are gonna go back. But in some of those cohorts there's the same guy going back. And so if you take those guys out and don't double count them, if you've ever been to prison there's about a one third chance you'll end up back in prison, not one half. That said, most of those people who cycle through only go through twice, at least over a 14 year period which is the data range that we have, right? So this idea that these people just like revolve around over and over and over again that doesn't really seem to be true. Most people go once, most who go back are only gonna go back twice at least in a 14 year period. So then is there any truth to this, the conception that by sending people to prison for say smaller level crimes, we're training them to become more criminal than they would have been otherwise because they're spending four years, call it, in an environment with a whole bunch of other people who are criminal? No, there's definitely truth to that. In fact, there's a really fascinating recent paper that managed to show that actually the longer you send someone to prison the more likely they are to recidivate upon release. And controlled in a very, very clever and very trustworthy method. It's a very tricky question statistically but he did a really good job addressing that. Which suggests that you get worse the longer you're in prison, right? And so it becomes this arms race. Like you're not committing crimes or you're out, while you're in and out you commit more like what's the trade off gonna be? But realize that prison is kind of the rarest way we punish you, right? There are about 1.5 million people in prison. There are about six or seven million people on probation and parole. There's another 700,000 in jail with 12 million cycling through every year. So just because, and those are just people we catch. The tricky thing about recidivism is we view our recidivism data as these aren't the people who commit another crime. Well, no. These are people who perhaps commit another crime and get caught and we choose the file charges and we choose to move the case forward. So it's a very skewed perception. Certain populations are more heavily policed. We're gonna pick up more recidivism there than other populations that are less policed but might be actually offending at similar rates, right? So it's a very, it's one of those terms that we think is very objective. Recidivism rate, it's a number. But actually, when you dig down, it's a really messy number to use. And states various of what counts as recidivism, right? If I punch someone, I'm going back to prison, right? If I don't have a job, I'm going back to prison. Perhaps if I drink alcohol, which is not a crime if you're not on parole but might be a crime if you are on parole, right? So exactly what are we counting when we count this and it varies from county to county to parole officer to parole officer. So I think there certainly is a crime causing impact to prison but it might not always show up in terms of another prison admission. It could show up in probation or jail or some other way of dealing with it. It seems that if you're in prison for longer, if that was, maybe the crime was more violent, you have further more difficulties outside of prison and you talk a lot about how prison has a lot of costs to not just, I mean, obvious costs to the person. We want to violent people to be punished and kept away for some period but their lifetime earnings, their ability to get a job, the single parent families, all these issues in terms of these costs and that gets to a really fascinating question that you take head on and I really appreciated that you did which is what is the optimal crime rate and why is that an important question to ask? Right, I would start by saying, I try, it's very, very hard to do this. In fact, I'm writing my book, The Word Kept Creeping In, Every Time I Do Another One, Edit's Sneak In, is to never use the word violent person or violent offender because violence isn't, that sort of makes it sound like this is who they are. They are a violent person but violence is very much a phase, not a state, right? People age into and age out of violence and I think we're becoming more aware of the aging in. I think that the juvenile death penalty cases and juvenile life without parole cases, I mean, it's realized, hey, you know, 14, 15, 16-year-olds, they're changing, right? And unfortunately, they're underdeveloped but they're also getting more violent, right? So around 14, 15, you start aging into violence but the part we tend to ignore is that, your pay less attention to do is that when you hit 30 or 40, you start aging out of violence, if not sooner. And some of it's hormonal, right? You know, violence and testosterone are very highly correlated so as your testosterone levels drop, other hormonal shifts, some of it is just physiological, right? Like I'm 41, like, I'm just less likely to get in a fight now than I was 20, right? Just because I'm gonna lose, right? I'm slower, things ache more, like I'm just kind of tired and lazy. It's not really worth it at this point, right? Some of it though is also social, right? You have a job, so you're not hanging out with your friends doing something dumb. You have a wife or a husband and you have a child and you have a sense like, I just shouldn't do this. Or again, you're with them and not with your friends. And prison certainly impacts those, right? Prison might not change your hormonal drift but it makes it hard to get a job, it makes it hard to get married and that actually kind of makes it harder to desist from crimes. But I think we do systematically undercount the cost of incarceration, right? We ever do a cost benefit. It saves this much in crime and we spend this much in dollars per prisoner. That's the tip of the iceberg, right? So going to prison hurts your lifetime earnings. You work fewer hours, you get paid fewer hours, you get paid less per hour that you work. Most people, a lot of people in prison already had a hard time getting primary jobs but now they really can't. And we do incredibly stupid things to make the problem worse. So until 2008, when New York State fixed this, but it's still a problem in other states, the single biggest training program in New York State prisons was barber school. And until it passed along in 2008, one of the things the barber licensing agency did was categorically deny license to anyone with a record. Oh, great. So we train all these men to be barbers and as soon as they leave, they can't get a job as a legal barber. I mean, they work illegally, but now they're exposing themselves to some sort of administrative, if not criminal penalty. New York State fixed it, sort of. You can't have a blanket rule for certain professions against people who have felony records but it exists in lots of other states. It's similar kinds of bans. So we make it even harder beyond what it already is. It's a great vector for tuberculosis and HIV and other STDs. It leads to an increase in drug overdose deaths upon release. In prison, drugs are expensive and low quality. You get released, drugs are cheaper and higher quality. Your tolerance is down because you haven't really been treated effectively and you overdose. But we don't tie that to prisons. It's so someone died, someone though, an ex-con died in an alley. That's not prisons, that's just him. But it's not, it's prisons. In some, no, dating markets really need 50% male, 50% female to really function well. And in some heavily-policed neighborhoods, it's 60% female, 40% male. And that really throws off family formation, increases the risk of a single parenthood, increases, again, the risk of STD transmission because men are kind of in short supply and they can leverage that to like not have safe sex if they don't want to. So there's all, not to mention just the shame and the stigma, there's financial costs of just travel. In New York State, half of our maximum security prisons are at least 200, 300 miles away from New York City. Even though half of all the people in them come from New York City, right? So you've got the hotel costs, the bus costs, the time off from job costs, the taking your kid out of school costs, collect phone calls, can be almost bankrupting to poor people. And you take all these costs, they're staggering and we just don't count them. So that's the question about the, if you have the costs, and then you're wondering about the optimal crime rate, the question of, and that gets to the quite, you're sort of biting the bullet on violent crime as something that you have to address to get fixed this prison problem. But also the idea that we talk about how can we fix mass incarceration without letting crime go up whatsoever. And because of all these costs of prison, because of this use of it, that's probably the wrong way to look at this in some way, because prison is very harmful in so many different ways. So it might be the optimal crime rate is higher than it is now because of all the costs that we're imposing on society for prison. It's possible. We've studied these collateral costs so poorly that we don't really know. And you don't wanna trivialize the attitudes of those who live in high crime neighborhoods. James Foreman just came out of the book called Locking Up Our Own about how, oftentimes African-Americans are amongst those who are toughest on crime because their communities are most devastated by it. And they do, there's a very strong law and order view in a lot of these high crime neighborhoods for very understandable reasons. And you don't wanna come on and say, oh no, you people don't worry about crime, there are other things to worry about. What I think it pushes me towards is a much greater degree of localism. Instead of letting the suburbs serve in their abstract aside what's best for the city, push that decision making towards the cities. And it could be, we'll find that, in certain times of rising crime, we've actually ended with a more punitive system that way. There's actually a sense in the 60s that we didn't react to rising crime in the 60s that quickly because the white suburbs just didn't care. Oh, Detroit's on fire, not my problem. Thought the rest of Wayne County. And then when the race riots happened and the social unrest and civil rights, then Wayne County cared too much about what was going to Detroit and they cracked down the other direction. So it could be that during times of rising crime, if localism might lead to actually more punishment. And that, I guess to me that's kind of okay. As long as those who feel the costs and the benefits are making the calls, maybe that's the best we can do. What bothers me is when those who feel the benefits don't feel the cost and then say, hey, let's crack down. Well, of course you're gonna crack down. It's not your family that's being torn apart by this. If you're the one who feels that the harm of crime and the harm of punishment, I'm more willing to defer to their choices, whichever way it happens to go. What do we say to you? I mean, this country seems to have a rather punitive culture. We're in very Old Testament sort of place. And so to the person who, the kind of extreme cultural conservative caricature almost that would say like, well, so what? Like, you know, these are bad people. They did bad things. They didn't have to do those things. They knew that they were bad. They knew there'd be punishment. And so if you, you know, you served your time but the other stuff are just costs of being a bad person, suck it up. And the rest of us, you know, those aren't costs that we should factor into the administration of justice. I mean, I guess my response would be several. One is that I think that dramatically overstays the extent to which community crime is a purely rational choice, right? There's all these structural and emotional pressures. You know, there's all this evidence showing that people operating under extreme poverty, just that that, we all have limited mental capacity, right? And so if you're incredibly struggling really, really hard to just figure out how you're gonna make it to tomorrow, your ability to start to control your anger goes down, right? For all of us, right? So when I say to say, oh, I never would have done that. Yes, I don't worry about eating tomorrow, right? And so it's very easy for you to say, I would never choose to get in that fight. What is he thinking? He chose that, right? Well, if I was actually really unsure if I was gonna have enough to eat or make rent tomorrow, or if my kid was gonna keep out of school and all these pressures, I'd actually have a shorter temper. And so I think we tend to overstate sort of how much is within our control. I would also state that on the one hand, maybe, all right, fine. Like if that's what you believe, that this is what they deserve, I mean, I can't prove you wrong, right? And in my book, I focus on the public safety, because that's where you can really make a policy argument. But I would push back and say, maybe we should actually care about what the victims think, right? Maybe it's not about you, right? Because you're not the victim or you're a second order harm, and you sort of feel the harm of someone else. But let's ask those who actually victimize what they think. And the most comprehensive survey of victims that I've seen indicates that victims tend to be less punitive than the society as a whole. And they tend to be less punitive because your average victim isn't what you see along an order, right? Like the suburban white lady, right? It's generally a younger black man, right? Person of color and male who understand, like lives in this environment and understands very much what is going on and why it's happening. And they're not indifferent, right? But their view of justice, they wanna see justice done. But their view of justice is something much more along shore of the restorative justice framework. Then as long as they lock them up forever, right? Because it's just a much more sophisticated view. And so, yes, you suburban white hold that punitive view. But if we actually, the same thing you're saying, let's talk to the victims, like let's talk to the victims, right? We'd like to pick out the victims who like wanna nail them to the wall, right? Those are the victims who always get attention. And I thought I was very telling that in this whole controversy over, you know, Arkansas and the death penalty, that A. Sachson refused to meet with family members of victims who didn't want the executions to happen, right? He was more than happy to talk to those who said, yes, execute them. But those who came forward said, no, this won't make me better, right? This just makes the world worse. Wouldn't even meet with them, right? And so I think we tend to focus on the victims we want to focus on. But actual victims, when you take a broad survey, they're substantially less punitive than sir, our laws would suggest. I'd like to go back to the prosecutor's angle because that is this thing that you kind of discovered that no one was discussing. And I always have wondered what's, I mean, knowing friends who are prosecutors, none of them are sadists or anything, but I encounter cases and wonder if these prosecutors are just, why do they even charge this guy with this absurd crime? Right. We had this case about a fish, for example, at the Supreme Court. Yes. Wondering how they charged a man with a felony for throwing a fish overboard. Right. So you identified the prosecutor as the black box of this whole story. And you wrote in the book that when you kind of compared these things all together and you saw this one thing making a huge difference in the incarceration rate, you just sort of stared at your computer and said, what is that main factor that you found? Right. So I used data from 1994 to 2008, which was imposed on me by the way the data were gathered, the place we gave the data, they changed how they gathered it, starting in 94, so I just couldn't go back. But I realized it's actually kind of a useful timeframe, right? It is basically during this period when crime went down steadily, but prison populations kept going up. And as far as I'm concerned, the causal mechanism there might be a very different story than the causal mechanism is taking place when crime was going up and prison was going up. Yeah, because the first 100,000 prisoners, who are the really violent ones, you might get safety returns on, but we might have stopped getting safety returns on incarcerating people. So that's sort of the conventional take that with crime low and prisons high, we must be locking up increasingly marginal people. And that's probably true to some degree, but we arrest 12 million people a year and we admit about 600,000 people to prison every year. And we don't know how DA's choose the cases they choose to go after, right? We like getting a triage based on severity, but I would imagine also triage based on provability, right? In murder cases are very hard to prove. There's actually a pretty shocking example of this where a couple of years ago, one of the previous Baltimore states attorneys that the head elected official managed to convince the head of the homicide unit of the police department that he could not issue an arrest warrant without an ADA signing off on it first. And the number of murder arrests in Baltimore fell by half that year. Not because murders went down, but because the DA's office simply stopped signing arrest warrants. This case looks tough, not sure we can do it, not gonna sign the warrant, right? We make the cops eat the failed clearance rather than getting the cops to make the arrest at the DA's office, have to take the tough to prove case, right? And that to me suggests that, you know, DA's are focusing on lots of different things, one of which is certainly public safety and severity, but they're also focusing on sort of provability. And we arrest so many people that even as crime goes down, there's probably still a lot of fairly legitimate cases to go after, you know, 1% of all serious property arrests result in a prison admission. And only about one third of all serious violent crime, reported violent crimes, is often in prison admission. So there's a lot of cases out there that they go after even today. So what did you see when you looked at the 1994 to 2008? So I saw over this period, crime is going down and arrests are going down. So there are fewer people entering the criminal justice system altogether. But the number of cases filed in state, felony cases filed in the state court went up, dramatically. Once a charge was filed against you, the chance that felony case resulted in a prison admission didn't change. And the amount of time you spend in prison didn't change. So the only thing that changed was, what's the chance that this arrest turns into a felony case? And it's entirely in discretion of the prosecutor. So for some reason, and we don't really know why, the prosecutor institution became more punitive. And what I can't really, I don't think I stressed it that much in the book. I mentioned it, but I've come to think that this might really be the main explanation. I'm not convinced that individual assistant district attorneys are any tougher today than they were 30 years ago. But it's a very interesting hiring pattern that happened. From 1974 to 1990, as crime is going way up, we hired 3,000 more prosecutors, from 17,000 to 20,000. From 1990 to 2008, as crime dropped precipitously, violent crime dropped by 25%, property crime dropped by 25%, arrests are down, everything is going down. We hired 10,000 more prosecutors, from 20,000 to 30,000. And we don't have good measures of how productive DAs are being, but all the various proxies I can think of, like how many serious arrests per DA, how many total arrests per DA, how many people admitted to prison per DA. There's no evidence that between 1990 and 2000, they became any tougher. We just had more of them, and they had to do something. Yeah, it seems like if you're one of these 10,000 extra DAs with less crime, but you have a performance review, and you have some sort of deliverable. Ideally, you'd say, well, I didn't do anything this year, boss, because, you know, it was a crime rate, crime to be the measure. So this is a good thing, right? But why would you even keep them on staff? So they'd be trying to come up with some sort of metric of what they're doing, and that would be charging people with crimes. And we arrest enough, there's plenty of them to do that. And so that was an urban phenomenon. On the more rural suburban phenomenon we see, and those offices tend to be, the rural offices tend to be small, about maybe two to three DAs per office. But what happens is between 1970 and 2008, the number of counties with a full-time DA, like an elected DA, not some part-timer who sort of has a private practice on the side, the number of counties with a full-time goes from 45% to 85%. And that's obviously a rural phenomenon, right? Brooklyn didn't decide in like 1994, hey, I guess it's time to get a full-time DA. Like we've had one for a good 120 years, 130 years. So the urban counties ramp up staffing and the rural counties create professional offices. And I think it's just that change in just structure of more people and more professional people who need to like justify their positions. I think I played a huge role in this change. And I think presents, no, certainly the suburban rural area, a significant barrier to change, right? You can imagine cutting back on funding for county DA, for major urban DA offices to try to shrink their staffing and perhaps shrink their impact. Well, there's sort of a one-way ratchet there, right? But de-professionalizing a DA's office, I think it's been a much harder thing to go from the full-time to firing that person to creating it to being a part-time, thinking a lot of resistance there. And I think it's telling that the crime, the prison dropped since 2010. So prison rises from 1972 to 2010 without any single year where the total prison population goes down. And then from 2010 to 2015 is dropped by about 5%. Half of that, just the state of California and then 24 other states have shrunk, 25 states have gone up, but you've seen a drop. But most of that drop is urban counties. Kinds of over 250,000 people are seeing a decline. Kinds under 250,000 are still going up and up. And so I think the ones that staffed up in the more liberal cities are shrinking. The ones that professionalized in the more conservative rural areas are actually getting tougher than before. Were you able to get any data about the kind of performance reviews that maybe exist for DA's? Or it seems like it might just flow downhill. So you have DA and you have assistant district attorneys. And so how the DA, what do you expect from them? That might be determined by the DA's political ambitions. Does that seem like possibly a controlling, he wants to be governor. You never say, my conviction, I did justice. I didn't put that many people in jail. You always say, I saved your communities. I put all these people in jail, it lets me governor. So maybe it just flows down to the ADAs from there. It's possible. So from an empirical point of view, the question for prosecutors, do you have data on? I can generally stop you right there. What comes next is irrelevant. The answer's gonna be no. No, I just don't have it. But the political ambition theory is certainly one I've been thinking about. And maybe that explains things that goes on in rural areas more. Because it's less clear to me, I remain unclear and genuinely unclear how important the person at the top is for bigger offices because it's gotta flow through all these levels of bureaucracy. I think one way to think about it, I think it's very striking is that in 2016, at the same time that you had Donald Trump winning election based on sort of American carnage, at the same time saw a lot of cities elect reform-oriented prosecutors and vote out tough on crime prosecutors. One of them is Kim Og in Houston. And the first thing she did, the day after her election, she announced that upon the action being put into office, that day she was gonna fire the top 50 lawyers in the office. She's gonna completely decapitate the entire office. And her argument was, look, I have a staff of like 120 lawyers. I alone can't oversee their day-to-day actions. It has to go through these 50 people who run things. And individually, they're all great lawyers, but collectively they pray this incredibly punitive culture. If I wanna change the culture, you gotta chop off the entire management team. Chicago saw a reform-oriented elected, Kim Fox. She, for reasons couldn't do that, or didn't or couldn't, I'm not really sure which. But so the old staff that was very punitive under her predecessor remains in place. And I'd be very interested to see how do things differ in Chicago and Houston, in part based on however great the DA is, if the bureaucracy below her resists, I think that could be a serious challenge. You also point to defense attorneys, and I have friends who are defense attorneys, public defenders or otherwise contractual. And in the growth of crimes and charging people, you have a constitutional right to an attorney that you could talk to them for 25 seconds, possibly. And it's kind of unfair, it's a pretty lopsided game in terms of the prosecutors versus the public defenders, correct? Yeah, so here's how terrible the situation is. To start with, 80% of people facing prisoner jail time qualify for a state-provided lawyer. So it's a massive responsibility that we have. In pure dollar terms, and these numbers are from 2008, which is the last year we have data, show you how stellar numbers are, I'm dealing with numbers that are almost 10 years old at this point, that's our most recent data. We spent about $6 billion a year on prosecutors, we spent about $4.5 billion a year on public defenders. First of all, that's the disparity to start with. Second of all, realize we spent about $200 billion a year on criminal justice, right? $4.5 billion on the lawyers for the defense, $200 billion overall, right? So we're already under spending relatively, but then there's this misalignment, but it's worse. There's a study in North Carolina that started from the premise that budget-wise, the DA and the public defender's office got paid the same. They had the same budgets, and that actually annoyed the DAs, because the DAs say we handle 100% of criminal cases, and in North Carolina, the public defender's had almost 50% of the defenses, so the DAs said we're underpaid. But what North Carolina's Office of Injury Defense showed is that the police, the DAs don't pay for investigators, they're called the police and the sheriffs, they don't pay for DNA labs, they don't pay for any sort of investigatory services. Public defenders have to pay for all of them. Once you add in all the free services DAs get, their budget's tripled out of the public defenders, right? So there's this huge misalignment, and then it gets worse from there. The Supreme Court said everyone gets a lawyer, they never said how they had to pay for it, right? The Supreme Court only hands down unfunded mandates. Some states pay for it, but in South Dakota, you get charged $90 an hour for your public defender, nine zero. Your classified is poor, you're getting charged $90 an hour for your public defender. That money is due regardless of the outcome of the case. So if you are acquitted, if you're acquitted because your public defender finds out that you weren't in that bank that got robbed, you were outside the state, it could not have been you, you still owe $9,000 if it takes them 10 hours, no, 100 hours to do this case. If you don't pay your public defender, that's a crime. Right, wow. But on the difference in how much money they each have to spend, could we explain that away by saying, look, they've got the prosecutors of the much higher burden of proof. They've got the harder job to do. They need more resources because they've got to get beyond a reasonable doubt, whereas the public defender, kind of gets to some extent- Play goalie. Play goalie, sit back and wait for them to get anywhere near that. But that's assuming a trial, right? That's assuming a trial, and 95% of all cases are resulting in a plea bargain, and one reason they all result in a plea bargain is because public defenders don't have time to really go through the case, right? There is Amy Bach with this book called Ordinary Justice, and she's not working on actually trying to gather metrics for DAs, but she was a journalist. She went around the country, started looking at how the system worked, and she went to this one courtroom in Georgia where this had a full-time DA, a part-time public defender. One guy ran the whole public defender's office on a contract that hadn't had his pay increased in like 20 years, 10 years, 15 years, right? And he got it by being the lowest bidder for the job. And he would literally plead out like 30 people in a morning session. They'd sort of stand up, go down the line, plead them all out. And then Amy, who's been to law school, was talking about going through his files, and she's like mitigating evidence, mitigating evidence, exculpatory evidence, this guy got him acquitted, this guy got the charges dropped, this guy got the charges knocked down, but he's just grinding through these cases so much that he just never had time to really stop and look, and if he wanted an investigator, he had to pay for out of his own budget, while though the DA was relying on the city paid for police departments. So it's still incredibly skewed. And results in DA, the public defender's just not having time to go through files and really see what's going on. This is all fairly depressing, and the fact that you also blow up the problem into 3,144 different problems, and we're here in Washington, D.C., and very little we could do to fix different counties, but what can we do? And we have very bad political headwinds. You talk about the false positive problem, and how much you have to, how much political consequences there are to locking up, not locking up a criminal versus locking up an innocent man. So although you have better to let 10 guilty men go free than the lock up one, is it like politically it's exactly the opposite. If you did not lock up a guilty man to let your commits a crime, you're done. So we have all these political headwinds. We have 3,144 jurisdictions. We have prosecutors running amuck. We have laws at different levels. We have behaviors trying to, what can we possibly do? I know you go through a bunch of them, but what do you think are the most promising reform? So at the same time that we have all these headwinds, at least for prisons at the state level and the county level, prison reform seems to be one of the few genuinely bipartisan issues we have. I mean, I've been at events where you, and this is not youthism, you'll literally see the head of criminal justice for the Koch brothers sitting next to the head of the ACLU's decarceration project. And it's, a lot of my liberal friends think the Kochs are crying, trying to sort of smuggle something in to like gut the EPA, right? And I'm sure they wouldn't mind getting rid of the EPA, but their criminal justice focus is genuine. Like they are one of the only groups that's actually given money to public defenders, right? Not a lot, not nearly enough to solve the problem, but like that's not political scheming. That's a genuine interest in trying to fix the system. And so I think at the local and state level, there is actually room to move, because I think it's this very fascinating arraignment, arraignment, right? Because you have the sort of standard liberal anti-punishment types, right? And they're sort of the racial justice sense that is an incredibly racially bi-ism that has a powerfully disparate impact. They've been campaigning for a long time. On the right, what's come in, we tend to view it mostly as sort of the Grover-Nord quiz we spend too much, let's cut costs group, right? And that's a big part of it. But it's also, I think, an equally powerful sort of Chuck Colson evangelical Christian second chance side to it also, right? That people are becoming believed in redemption and people, conservatives who have been to prison, like Chuck Colson, came to realize and Bernie Carrick, I mean, came to realize, these people aren't like these irredeemable monsters that we sort of paint them out to be in the press, right? They are no different than you and me and they're no less open to the possibility of turning their lives around. And I think to me, that's actually the much more durable side of the right on crime, I think, than the more sort of tax cutting. Because the tax cutting side could easily fold as soon as crime might start going up again, right? Well, then the cost and benefit shift and maybe we should spend this money here. But the evangelical side that believes in redemption should be a little bit more, I would hope, resistant to just sort of crumbling that quickly. And so I think there are things we can do, I think, and things we've seen happen. So I think one thing is no guidelines for prosecutors, right? They have unfettered discretion, but they're the only people who have that kind of discretion. Why not impose like, you know, actuarial tools and other guidelines to regulate how they charge, who they charge, how they plead them out? New Jersey does this for some drug cases, it's not impossible. I mentioned earlier the fact that prisons are paid for by the state. That's a huge problem, because you're a prosecutor, you're paid for by the county, right? And so if you send someone to jail or probation, unless you're offenses, that comes out of the county budget, your budget. Send them to prison, that comes out of the state budget. So it's safer, it's tougher, and it's cheaper, right? The tougher penalty is actually cheaper for the local officials. And so maybe make them pay for it, right? California's kind of done this with their realignment program, where they've said for certain categories of offenses, even as a felony, even if it qualifies for state prison time, you, the county, have to lock them up in your county jail, right? You pay for it, we're not paying for this anymore. In practice, it's a bit more complicated, but that's sort of the underlying logic, right? And again, California did this. These things can be the Indiana tried it in a smaller scale with a little bit less success. And so I think for certain prosecutors, we're gonna adopt guidelines for focusing on, you know, the politics of it. I think things like sentencing commissions, right? There are ways we can try to insulate the process from political headwinds, or maybe moving things to more local levels. Don't make the DA be elected by Cook County, Chicago elected DA, and the suburbs elected DA, Detroit elected DA, and the rest of Wayne County elected DA, right? And maybe that can break down some of the sort of sort of, I feel all the benefit without the cost of being tough. But the catch is that I think it's required thinking big and aiming high, right? Like the smaller fixes, they will do good, but they're only gonna get us so far. And there is a risk lingering there too. There's actually a very sort of depressing, maybe frightening, but probably more depressing poll that Vox did, Vox.com, where they asked people several questions. The first one was, what percent of people do you think are prison for drugs? And everybody said half, not surprising, but that's solvable. What was kind of scary was the next question, and they broke it out by liberal, moderate conservative. The question was, are you willing to take someone who's being evicted of violence but poses little risk of violating again? Are you willing to punish that person less? And 55% of liberals, to 65% of conservatives said no, right? But those are the cases we're gonna have to cut at some point. And I think what's happened is this constant rhetoric of low-level nonviolence, low-level nonviolence. We've convinced the Americans that our prisons are full of low-level nonviolent offenders and we can get out of this mess focusing on them. And I'll be the first to admit that that's where reform had to start, right? You don't go from 40 years of sustained prison growth and the next day passed that let's be leaning to murderers act, right? That's not gonna happen, right? You start with drugs. That's the obvious place you start. But at some point, you gotta start shifting that story. And it's not just like, well, when it's convenient, we'll do it, right? The Americans have come to believe we don't have to have this conversation. They're unwilling to have this conversation. And cracks are starting to happen. You know, you see this issue of like letting people serve long terms even for violence out early is coming up now in Louisiana, right? The Tennessee and the country is debating this issue. DAs hate it. They're fear-mongering like crazy, but they're at least talking about it. I came across an opinion by Richard Posner the other day where the blue had nothing to do with what the majority talked about in his dissent. The blue, he said, and also, we need to start talking about the fact that we punish people who can make the violence for far too long, right? And just say, this is the conversation we have to start having. And so I think we're starting to see people say, well, maybe we have to really talk a bit more about violence, but it's a slow process. And I think some of our sort of constant emphasis on low-level nonviolent does have some real costs. So it's gonna be hard. So we're gonna have to ask some really hard questions. That's not gonna be easy. But I think oftentimes what matters, what really matters is the boring stuff, right? And maybe sort of if there's time, my favorite example of this, this is dry as dirt, but incredibly powerful is the census. Yes, I did have a question about this. So this is a fascinating tidbit. If you're in prison, where does the census count you as living? Do you live where you were before you got sent to prison, or do you live in the prison? And outside of four states, New York, California, Maryland, and Delaware, you count as living in the prison, not where you came from. So what that does is that- But you can't vote, right? You can't vote. You're five-fifths of a vote, right? You can't five-fifths of a person, but outside of Maine and Vermont, you cannot vote while you're in prison. Which, by the way, sets the United States apart from most of the rest of the world as well, and most liberal democracies, even in prison, you can vote. But outside of Maine and Vermont, not here. So that means you can have a county with maybe 700 people in it, but it has a prison, so it has like 3,000 extra people in it, correct? Right, exactly. Who can't vote but count. And now do they not vote and count, but they tend to be disproportionately Hispanic and black from the cities? So disproportionately liberal, Democratic voters, who now have been moved to Republican districts, right? And so it beefs up the Republican and rural vote. And there are stories across the country of these state senators who, without their prison, won't have their seat. And in fact, when New York State changed their law, they changed it in this very, very narrow window when the Democrats controlled both chambers and the governor's mansion. And even despite that, the Republicans managed to push through something that split an upstate Senate seat in half, district in half, right? Basically on the ground, they knew they're gonna lose at least one seat when the prisoners got shifted back to New York City and Buffalo. And so they took some rural area that was all Republican and tried to cut it in half to bolster that, that lost seat. If I'm not mistaken, I think that seat is now held by a Democrat, which is kind of funny, but it's incredibly boring, right? It's census enumeration, yet it leads state reps across the country to really powerfully fight reform because if reforms happen in prison strength, they'll lose their seats. And the parties will lose their seats, right? I named the states because it's not a random sample, right? California, Delaware, Maryland, and New York for the bluest states in the country. And that's not surprising because there's a strong political valence here. And the fact that right now, what the Republicans had the trifecta of both chambers and the governor's mansion in something like 20, some states, 26 states now, right? This sense of reform is not gonna happen at the local of anytime soon, unless the census bureau itself changes the rules which they are debating doing right now. So that's an example of the kind of nitty gritty, dry as dirt stuff that we're gonna have to address. Right, exactly. Yeah. If this matters, it's boring. It's not what we want to hear, but the shocking stuff that hasn't been hammered out is probably still a problem because it's not that important. And it was still a problem and we haven't fixed it. It's probably because it's like, you wanna talk about the census? I don't want to talk about the census. I don't want to talk about like, something really shocking. If you go to a party and you talk about, I'm representing someone in death row, everyone circles you want to hear about your death penalty case, right? Oh yeah, I know I was down at the census finding enumeration, I guarantee you you're drinking alone in that party, right? But you're actually doing far more good for the overall system than the person's got that one shocking case. Thanks for listening. This episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more, visit us on the web at www.libertarianism.org.