
The War on Drugs and Prison Growth: Limited importance and legislative options [pdf] - yummyfajitas
http://harvardjol.com/wp-content/uploads/2015/06/HLL104_crop1.pdf
======
encoderer
These two paragraphs lead me to believe that if the author had considered the
rise of mandatory minimum sentences part of the war on drugs the headline of
the paper might be different.

 _" The five means by which the War on Drugs can drive up incarceration rates
(or punishment more generally) considered in Part II are (1) the direct
incarceration of drug offenders, (2) the re-incarceration of all types of
offenders due to drug-related parole violations, (3) the impact of drug
incarcerations on prison admissions instead of prison populations, (4) the
extent to which prior drug offenses trigger repeat-offender enhancement, even
for non-drug crimes, and (5) the effects of large-scale drug arrests and
incarcerations on neighborhood social cohesion, and the connections between
social stability and incarceration. "_

 _" The connection here between the War on Drugs, longer criminal records, and
increased prosecutorial aggressiveness is fairly straightforward. Increased
drug enforcement results in defendants with longer felony records and
prosecutors may be more aggressive against such defendants. They may be less
willing to plead down felonies to misdemeanor, or to drop cases altogether; to
divert to an alternative program, or to drop more serious charges. They may
also be more willing to select charges that carry mandatory minimums even when
there are viable alternate charges that carry no minimum. Such harshness could
reflect increasingly punitive attitudes on the part of prosecutors, perhaps in
response to rising crime rates from the 1960s to the 1990s, or to other
political and social factors. Or it could be that prosecutors have maintained
a relatively constant approach toward charging repeat offenders, but the
number of arrestees with long records has grown, thanks in part to drug-
related convictions. Note, too, that prosecutors need not be more aggressive
just toward those with more convictions, but perhaps also toward those only
with more prior arrests, even if some of those arrests never resulted in
convictions."_

~~~
rayiner
Mandatory minimums aren't a part of the drug war. They're a response to the
huge spike in crime that started in the late 1960's:
[http://www.americanthinker.com/legacy_assets/articles/assets...](http://www.americanthinker.com/legacy_assets/articles/assets/Murders%201.bmp).

Note that the Sentencing Reform Act of 1984 (which imposed mandatory
sentencing guidelines), and the Comprehensive Crime Control Act of 1984 (which
eliminated federal parole), came two years _before_ legislation to increase
punishments for drug-related crimes.

Similarly, it wasn't the drug war that led the way when states passed reforms
limiting/eliminating parole or imposing life sentences for three strikes. In
fact, most states don't include drug crimes within the scope of their three
strikes laws.

~~~
peterwwillis
So what caused the bump in crime? Boredom? Perhaps fun-loving kids just
looking to have a good time? Or, I dunno, maybe............ drugs?

~~~
tptacek
The prison population isn't a function of a bump in crime. The prison
population shot up as the crime rate fell through the 90s. The paper concludes
by asking a series of questions about why prosecutors got harsher even as the
crime rate dropped.

~~~
peterwwillis
Well that's a nonsensical question to pose. First of all, harsh is subjective.
Prosecutors don't dole out "harsh" sentences, they dole out longer or more
restrictive sentences. To them, the sentence is not harsh because they're
keeping innocent civilians safer by keeping criminals behind bars longer, or
by making it easier to send potentially harmful people back to prison. Prison
is no longer seen as a way to be penitent about one's actions: prison is now
seen as a way to keep the bad away from the good.

The rate of crime may have dropped, but the _kind_ of crime did not, and
prison gangs certainly haven't diminished in size or scope. People seem to
forget that going to prison is a way of life to many people. Keeping those
people 'off the streets' is basically the prosecutor's primary role.

~~~
tptacek
Huh? Harsh is not only objective but trivially easy to measure. As crime rates
fell, the likelihood than an _arrest_ would convert to a _felony conviction_
rose. That's the opposite of the causality you'd want or expect: as the
community gets safer, the criminal justice system should become less
intrusive, not more.

~~~
Natsu
There's an alternate explanation for that: that the harsher sentences made
that population unable to commit further crimes by leaving them in prison.
This could also be correlated with the rise in prison violence.

That would tend to make sense given that prison is not a deterrent, in the
sense that studies have shown doesn't seem to make people less willing to
commit crimes, whereas the state of being in prison certainly does restrict
their ability to do so.

~~~
tptacek
How does that square with the evidence that the overwhelming majority of
prison inmates serve (a) short sentences (b) only 1-2 times in their life?

~~~
Natsu
That would seem to make sense if the three strikes laws are as significant a
factor in causing the increase in felony convictions as I've been lead to
believe.

~~~
tptacek
According to this research, those laws are not a significant factor in the
prison population.

(of course, that doesn't make them a good idea!)

------
jarsin
Overzealous charging and prosecution are also a major part of the equation.
They charge seriously felonies now days in what should be minor misdemeanor
cases.

If you saw someone who had been charged with kidnapping you would probably
think oh they must have tied someone up and taken them someplace. Maybe even
taken a kid?

I know someone that was charged with kidnapping when someone tried to leave
the room with his phone. He would not let them leave with his phone. Arrested
for kidnapping (yes the exact same charge someone who takes a kid from a
playground gets) with a massive bail. Lost job etc.

~~~
tptacek
I had that reaction too. The author claims that the role of long sentences is
overblown, since most offenders serve relatively short sentences (and don't
subsequently reoffend). But the availability of long sentences to prosecutors
might convert a lot of cases that wouldn't involve custodial time into
felonies.

From the paper:

 _The primary engine of prison growth, at least since crime began its decline
in the early 1990s, has been an increased willingness on the part of district
attorneys to file felony charges against arrestees_

~~~
tsotha
Part of the reason for _that_ is legislatures have given them more options in
that department. The money crimes that were created to give cops an oblique
way to go after drug dealers apply to pretty much _any_ crime, i.e. if you rob
a bank it's likely they'll be able to charge with with money laundering,
structuring, currency smuggling, wire fraud, or any of a dozen of those types
of crime. Plus, conspiracy goes with just about everything.

Prosecutors don't have to take much to trial any more, since instead of
charging you with just the crime people recognize (say, bank robbery or drug
dealing), they can add up a bunch of lower level 3-5 crimes and have you
looking at 300 years in jail unless you take the plea bargain. 98% of federal
prosecutions never go to trial - we used to laugh at the commies for that sort
of thing.

------
rayiner
It's useful to juxtapose Figure 1 on 174 with Figure 2 on 181.

As the article explains, the causation narrative is all wrong. The state
prison population started ticking up in the 1970's, but drug prisoners started
ticking up in the 1980's. From 1990 to 2010, the state prison population
doubled, while the percentage of those who were drug offenders peaked in 1990
and declined thereafter.

The real explanation for skyrocketing prison populations is high crime
combined with sentencing reforms (limiting judicial discretion) and parole
reforms (prisoners in many states used to serve just 30-35% of their sentences
before discretion was taken away from parole boards).

Interestingly, the U.S. has much higher prison populations than Europe, but
would not be in the lead in terms of number of custodial sentences imposed:
[http://www.nytimes.com/2008/04/23/world/americas/23iht-23pri...](http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html?pagewanted=all)
("Still, it is the length of sentences that truly distinguishes American
prison policy. Indeed, the mere number of sentences imposed here would not
place the United States at the top of the incarceration lists. If lists were
compiled based on annual admissions to prison per capita, several European
countries would outpace the United States. But American prison stays are much
longer, so the total incarceration rate is higher.")

~~~
tptacek
It looks like the author does not believe sentences are directly responsible
for the prison population, as most are short and most offenders are not re-
incarcerated.

~~~
rayiner
Interesting. Will have to read the rest of the paper. It'd be pretty bleak if
you couldn't blame the government one way or the other for the level of
incarceration.

~~~
tptacek
It does blame the government!

------
muerdeme
Footnote 9 seems like a glaring issue with this analysis:

 _9 Technically speaking, the claim that “a large majority of those admitted
to prison never serve time for a drug charge” means that for that majority of
inmates the most serious charge was never a drug charge. Many inmates are
convicted of multiple charges, and someone convicted of a violent or property
offense along with a drug charge will be classified as a “violent” or
“property” offender, not a “drug” offender._

Opponents of the War on Drugs believe that a significant portion of violent
and property crimes are causally linked to strict enforcement of prohibition.
Prohibition gives an implicit monopoly to criminal organizations, which causes
violent crimes in the form of territorial disputes. This monopoly also
increases the price of drugs for addicted users, which drives property crime,
e.g. stripping copper to sell for scrap. An analysis that categorizes a heroin
dealer that shoots a victim as a "Violent" offender but not a "Drug" offender
seems flawed.

~~~
simplulo
The criminals have lots of violent disputes, not just over territory, and the
users commit more than just property crime, e.g. robbery. People up and down
the supply chain try to rip each other off. It seems that the author did not
expend much imagination in looking for prohibition-driven crime.

~~~
tptacek
Unless you think a violent drug dealer is _less likely_ than a nonviolent
offender to _ever_ have been charged with a drug offense, the data doesn't
bear this out. According to the author's data, it seems that most violent
offenders have never been sentenced for a drug charge.

~~~
muerdeme
If a violent offender that was also charged with a drug offense is classified
in the "Violent" category, how can you draw any conclusions about how likely
they are to have ever been charged with a drug offense? The data seem to only
show that you are unlikely to end up in prison with a drug offense as your
most serious crime.

This jives with David Simon's description of the prevailing attitude of
enforcement in _The Corner_. The justice system is too overwhelmed to press
charges for mere drug offenses, so you are less likely to end up with a
conviction without a more serious crime attached.

~~~
tptacek
This is discussed towards the end of Section 2, where he attempts to establish
that the set of inmates charged with violent offenses is mostly disjoint with
the set of inmates charged with drug offenses.

~~~
muerdeme
Thanks for the pointer. Are you referring to Sections II C&D? Tables 4A and 4B
seem like they would have the same categorization issue I described above. As
I read it, the "Never drugs" column refers to a given offender never having a
drug offense as the most serious offense for a conviction. This doesn't mean
that the offender was never _charged_ with a drug offense.

------
slasaus
tl;dr: "Taken together, these findings suggest that the effects of the War on
Drugs are often relatively slight compared to other causes, and that they are
certainly not as big as many often assert. In reality, a majority of prison
growth has come from locking up violent offenders, and a large majority of
those admitted to prison never serve time for a drug charge, at least not as
their “primary” charge. These results pose a challenge to those who wish to
aggressively scale back incarceration, since the current politics of reducing
sanctions for drug offenders is less complicated than that for reducing
punishment for violent or property offenders. Reforming drug statutes is
easier, but doing so will likely not effect significant change in the overall
incarceration rate." p.6

~~~
slasaus
"These results pose a challenge to those who wish to aggressively scale back
incarceration, since the current politics of reducing sanctions for drug
offenders is less complicated than that for reducing punishment for violent or
property offenders."

I think there is an important difference between someone who is violent
against other people versus someone who uses drugs (and might be violent in a
sense to him/herself but no one else). So where "reducing sanctions for drug
offenders" might be a novel thing to do, "reducing punishment for violent or
property offenders" might not be. Apart from which one is "less complicated"
or more efficient to the goal of scaling back incarceration.

~~~
tptacek
You cut the author off before he could finish his point, just a few words
later, that many violent offenders also don't belong in prison.

~~~
yummyfajitas
Could you quote this in the text (just enough so I can \C-s to the right
place)? I'm having a hard time finding this point in the rather large
document.

~~~
tptacek
_" Not all violent offenders are murderers and serious assaulters, and many
would likely be better served by not being incarcerated, but the optics and
political risks of violent-offender decarceration are much tougher to navigate
than those for drug offenses."_

The Big 4 violent crimes are murder/manslaughter, rape, robbery and ag.
assault. Of those 4, it's easy to get charged with the last two. For instance:
I was "gently mugged" at night a few years back on my block; 3 teenagers
jumped me and demanded my phone, which I gave them, and my bag, which I
refused to give them, at which point they ran. They were charged with robbery
(I didn't bother showing up to their trial, which I understands means they
were acquitted, which seems like a decent outcome).

~~~
areyousure
Just to clarify, by "jump" do you mean "surprised", "hit", or "beat the s __*
out of "? I wasn't familiar with a usage of "jumped" that didn't include at
least being hit (if not beat up), and Urban dictionary seems to agree with
that interpretation:
[http://www.urbandictionary.com/define.php?term=jumped](http://www.urbandictionary.com/define.php?term=jumped)

------
tptacek
_The five means by which the War on Drugs can drive up incarceration rates (or
punishment more generally) considered in Part II are (1) the direct
incarceration of drug offenders, (2) the re-incarceration of all types of
offenders due to drug-related parole violations, (3) the impact of drug
incarcerations on prison admissions instead of prison populations, (4) the
extent to which prior drug offenses trigger repeat-offender enhancement, even
for non-drug crimes, and (5) the effects of large-scale drug arrests and
incarcerations on neighborhood social cohesion, and the connections between
social stability and incarceration._

~~~
justinsb
And most notably ignores the question of whether the war on drugs drives up
violent crime.

~~~
tptacek
Not only does it not ignore that question, it addresses it empirically. You
should read past the 14th footnote, where you say you stopped; this is
addressed towards the end of section 2, about halfway through.

~~~
justinsb
In which table does it empirically address this question?

------
kazinator
Part of the problem is probably that in the USA you can be locked up for
sneezing. It's common for normal people to have been jailed for something at
some point in their lives, who would never have had any brush with the law in
another developed country.

Another contributor is this:
[https://en.wikipedia.org/wiki/Poverty_in_the_United_States](https://en.wikipedia.org/wiki/Poverty_in_the_United_States)

There are relationships between incarceration, poverty, and class and race
struggles.

(How about the fact that something like 40% of the prison population consists
of blacks? Looks like the effect of "War on Black" more than "War on Drugs".)

~~~
tptacek
Unless your claim is that sneezing is classified as a "violent crime", the
paper appears to refute this point.

~~~
jbapple
> Unless your claim is that sneezing is classified as a "violent crime", the
> paper appears to refute this point.

A number of people in the US have been arrested for assault for farting on a
police officer. At least one was arrested for farting not on a police officer,
but for fanning the fumes from his fart towards a police officer.

------
tptacek
Page 194/22 makes an interesting point:

 _Drug inmates’ share of unique offenders is basically the same as their share
of inmates: about 20%, or 26% if we count those convicted of both drug and
non-drug offenses as “drug offenders,” compared to 17% of the total stock_

When you look at state and local prison statistics, or at least the ones I've
looked at during message board arguments, you quickly see that drug crimes do
not dominate; in the midwest, the dominating crime appears to be domestic
violence.

A common rebuttal to that point is that at any point in time, there may be
more domestic violence inmates in prison, but the overall flow of drug
offenders is greater: they serve shorter but more frequent sentences; the
"installment plan", as the author puts it.

The statistics don't appear to bear that out. The tables that precede this
point are interesting, too. To the extent that prison is a "revolving door"
for inmates, that too does not appear to be the explaining factor for mass
incarceration.

~~~
simplulo
Three quarters of US murder victims are male, and more than half are black.
The same goes for US murderers, to which we can add that more than half are
under 30, and more than half use handguns (not an inexpensive tool). I suspect
that the circumstances more often involve drug gangs than domestic violence.
It seems unlikely to me that Drug Prohibition could be such a big factor in
murder but not in other crime or incarceration.

~~~
tptacek
I wasn't providing a narrative, I was citing statistics you can get from
prisons.

------
yummyfajitas
Also, let me emphasize that this does NOT suggest that we shouldn't end the
war on drugs. Circa 2009, there were 134k people in state prison for drug
crimes. We should let them out immediately.

This will be a wonderful thing for 134k people who've harmed no one and have
had their freedom stolen by an oppressive government.

But we shouldn't expect it to significantly reduce incarceration in the US.
According to this article, the best way to do that would be to somehow
convince Americans to beat, rape and murder people less.

~~~
tptacek
That's not what the article says. It is in fact at pains to point out that
violent offenders are not necessarily rapists and murderers, and concludes by
discussing --- at length --- the empirically observable increase in
prosecutorial aggression, which it terms "ill-advised", and the data we'd need
to start ascertaining the reasons why prosecutors are charging more people
with felonies even as crime drops.

------
fukusa
I look at it from the following perspective. There are two intertwined
economies. The formal economy and the underground economy. Because of the war
on drugs, the underground economy is booming. It's counter-intuitive because
you'd expect it to shrink because of the war on drugs. Except the war on drugs
moved drug trade from the formal economy to the underground economy. Add to
that the fact that when drugs became illegal it made them more scarce and as a
result more expensive. Most (if not all) incarcerated people took part in this
underground economy, willingly or unwillingly, by faith or by choice. Human
trafficking, prostitution, drug abuse, and violence are all part of the
underground economy and they are increasing because this economy is growing,
enabled by the war on drugs.

------
mdorazio
Where is the 17% number coming from? A quick search turns up the official
stats from the Federal Bureau of Prisons showing 48% of Federal incarcerations
are due to drugs[1]. And using slightly older data, but still more recent than
the author's 2010 numbers, it looks like over 20% of incarcerations at a
combined State and Federal level are for drugs[2].

Also, the paper focuses on policies and enforcement, but seems to mostly
ignore the social effects of broken drug policies in creating criminals. How
many people are robbing or burgling (accounting for over 20% of incarcerations
again) in order to support drug habits? How much gang-related violent crime
leading to incarceration is funded by drugs?

You can't just cherry pick the easy numbers and say "look, drug policies
aren't that bad for incarceration!"

[1]
[http://www.bop.gov/about/statistics/statistics_inmate_offens...](http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp)
[2]
[http://felonvoting.procon.org/view.resource.php?resourceID=0...](http://felonvoting.procon.org/view.resource.php?resourceID=004339)

~~~
yummyfajitas
If you read the words surrounding the number, you might observe that "drug
offenders comprise only 17% of _state prison populations_ ". Thus, observing
that 48% of _incarcerations_ at the _federal level_ are due to drugs is, well,
a different matter entirely.

Also, an important distinction between _incarcerations_ and _prisoners_ is
explained on the fourth page of the article. Tl;dr; consider a 2 man prison,
with 1 murderer in jail for 20 years and a rotating cast of heroin users
serving 1 year sentences. Drug users represent 95% of _incarcerations_ and 50%
of _prisoners_.

~~~
mdorazio
Agreed, but data point two in my first statement is for prisoners as well, not
incarcerations. Ignoring Federal prisoners entirely is disingenuous since the
total percentage across all prisons for drug offenders is above 20%. That's a
lot more than 17%, and it's rising.

------
luso_brazilian
tl;dr: verbatim from the linked pdf

 _Decades of stable incarceration ended suddenly in the mid-1970s, as the U.S.
prison population soared from about 300,000 to 1.6 million inmates, and the
incarceration rate from 100 per 100,000 to over 500 per 100,000. (...) [T]he
United States is now the world’s largest jailer, both in absolute numbers and
in rate_

 _Table 1B: various offenses’ contribution to state prison growth, 1980–1990,
1990–2009_

    
    
                  1980      1990      2009        % 1980-1990   %1990-2009
        Total     294,000   681,400   1,362,000                 
        Violent   173,300   316,600   724,300     36%           60%
        Property  89,300    173,700   261,200     22%           13%
        Drug      19,000    148,600   242,200     33%           14%
        Other     12,400    45,500    134,500      9%           13%
    
    

_Drug offenses are still not the dominant contributor to prison growth, even
during the first stage of rising incarceration, but their role in the 1980s is
on a par with the locking up of violent offenders.

When the crime drop begins, however — which is when one might expect drug
offenses to become more important, since they are more discretionary — the
importance of drug offenses declines precipitously, and the incarceration of
violent offenders dominates.

In other words, whatever the historical importance of drug offenses to prison
growth, the incarceration of drug offenders is not a central causal factor
today._

And in the conclusion, also verbatim:

 _(...) [i]f legislators decide that reducing drug enforcement is still a net
social good, regardless of its impact on prison populations, the tools at
their disposal are limited.

Criminal justice enforcement in the United States is highly disaggregated
across a wide range of institutions operating relatively independently of each
other. At least right now, prison growth is driven by prosecutorial
aggressiveness, and legislatures have little control over locally elected,
locally funded prosecutorial offices.

Legislative success may require unconventional yet viable approaches, such as
adopting charging or pleading guidelines or making efforts to push the cost of
felony incarceration onto county budgets_

~~~
slasaus
Don't like the 10 vs. 20 year jump there, it would have been nice if they had
added statistics for 2000 as well.

~~~
astazangasta
The other two columns are percentages, so the interval size doesn't matter. In
addition, 1990 is an important point because of the notable shift in overall
crime rates that occurred there (crime went up until 1991, then declined
dramatically and continued falling as the prison population increased).

------
swehner
A strange paper, difficult to follow, not well organized.

Perhaps not surprisingly, the author is an economist.

I do find it extremely odd when a scholar uses an informal term like "Drug
inmate" (for example, p. 180)

~~~
tptacek
No, the author is criminal justice professor famous in academia for empirical
study of mass incarceration.

~~~
swehner
Not sure what "No" refers to.

I found this listed under Education at
[http://www.fordham.edu/info/23171/john_pfaff](http://www.fordham.edu/info/23171/john_pfaff)
: University of Chicago: BA, 1997; JD, 2003; PhD (Economics), 2005

------
tptacek
The HN reaction to this paper is disappointing, most notably because so few of
the people with strident opinions (against _or_ for its conclusions) appear to
have read it. I feel qualified to judge the prevailing sentiment on HN about
criminal justice, and based on that: I feel like HN should be all over this
paper; it should confirm all their biases except for one.

Here are some Cliff's Notes:

First, the author: John Pfaff is an internationally recognized legal scholar
specializing in the dynamics of mass incarceration. This paper isn't a drive-
by by a random economist; he's cited widely on the subject, including in lots
of very readable blogs. I lost an hour today reading things about his work.
It's interesting.

Next, on the drug war: the author appears to be _against the drug war_ and
_against mass incarceration_. Some commenters are responding to this paper as
if it was an appeal to continue the drug war. That's the wrong way to read it.
The author sets out a simple problem statement: incarceration is increasing
even as the crime rate falls. That can't be right! The point of the paper is
simple: "end the drug war" is a bromide for mass incarceration. If we're
really to make a dent in our prison population, more radical interventions are
needed.

Third, and the reason I'm so irritated at HN's response: Pfaff agrees with HN
about criminal justice in the US! The problem, as he sees it, is
_prosecutorial discretion_. As crime has fallen, the likelihood than a US
arrest will convert to a felony charge has drastically increased. That's so
counterintuitive that the author is moved to hypothesize about why it's
happening. Perhaps crime is falling, but neighborhoods are continuing to
decline, and frustrated prosecutors are overcharging accused people as a sort
of "quality of life" tactic. Or perhaps the incentives are all screwy: maybe
we have too many prosecutors with too few budget constraints, and, as crime
falls, they have to scrape the bottom of the criminal barrel to justify their
paychecks.

This paper is fascinating, carefully laid out, and full of counterintuitive
observations. Most of the places you'd look for simple answers to US prison
population aren't actually in the evidence. You think it's revolving-door
sentences, or "three strikes laws"? Nope! Most offenders aren't reincarcerated
at all, and of those that are, there's a sharp drop-off after 2 prison stays.
Think it's long sentences? Nope! Most offenders serve short sentences (the
author notes the impact that nominal sentences have on prosecutor incentives,
though). Think it's parole and drug-related parole violations? Nope, that's
not in the evidence either; in fact, parole strictness doesn't seem to be a
major driver at all.

Again: the point of this paper is not that prison is full of violent offenders
and so mass incarceration isn't a problem. Even among the cohort of violent
offenders, the author is concerned about prison population; as he points out,
many _violent_ offenders don't belong in prison either. The author is
discomfited by the fact that prison population and the budget drain of our
criminal justice process are increasing even as crime falls. Mass
incarceration is a problem. If you're serious about wanting to end it, this
paper is good news: it strongly suggests that letting college kids buy weed at
Walgreens isn't nearly enough to allow us to write that problem off.

~~~
chrishynes
There's been a big move toward overcharging to force a plea rather than a
trial.

~~~
tptacek
Since most criminal defendants are in fact guilty, perhaps the logic here
could be something like: "prosecutors have made the system of adjudicating
crimes so efficient using plea bargaining rules that sentences need to be
ratcheted down sharply, both to account for the increased likelihood that the
accused will go to prison and as a check on prosecutorial power".

~~~
AnthonyMouse
There is also a question of whether the crimes defendants are in fact guilty
of should even be on the books.

There has been a trend in legislation. X is bad but is already illegal, and
some people who do X use Y, so Y is made illegal too. Some gangsters use large
sums of cash so let's ban large sums of cash. Some terrorists use strong
encryption so let's ban strong encryption. Some spammers use whois privacy so
let's ban whois privacy. Some drug dealers use scales so let's ban scales.
Some bootleggers break DRM so let's ban breaking DRM.

This happens many times over until most of the people who are not gangsters or
terrorists or spammers or drug dealers or bootleggers can nonetheless be
charged because they harmlessly use cash or strong encryption or privacy
services or digital scales or DeCSS. And charged with "money laundering" or
"arms dealing" or other incredibly serious crimes.

Which may at least partially explain why so many people are locked up for
"violent crime" \-- it isn't that so many people (outside of gangs) are
spilling blood, it's that we've allowed "violent crime" to encompass things
like weapons possession that don't inherently involve violence or harm to
anyone.

~~~
tptacek
I do not believe unlawful possession of a firearm is classified as a "violent
crime"; for instance:

 _" Crime of violence" does not include the offense of unlawful possession of
a firearm by a felon_ (US code).

Possessing a firearm while committing a robbery is a violent crime, whether
you use it or not. But the robbery itself is also classified as a violent
crime, with or without the gun.

~~~
AnthonyMouse
> _" Crime of violence" does not include the offense of unlawful possession of
> a firearm by a felon (US code)._

That's at the federal level, which constitutes a smaller percentage of total
inmates, more of which are in for non-violent drug offenses, than the states.
And for example:

"Although the statutes allow for varying degrees and punishments, the crime
[Criminal Possession of a Weapon] is generally considered a violent offense in
New York with mandatory minimum terms of incarceration."

[http://www.new-york-lawyers.org/weapon-crimes.html](http://www.new-york-
lawyers.org/weapon-crimes.html)

But we don't need to get into the whole gun control debate, it's only one
example. The problem of criminal laws expanding to encompass more than what a
normal person would consider to be criminal behavior is _prolific_ and by no
means limited to nonviolent offenses. The instance elsewhere in the comments
of someone being arrested for "kidnapping" for refusing to allow someone else
to abscond with his phone, for example.

------
justinsb
This seems to ignore the question of whether the 'war on drugs' contributes to
violent crime, and what fraction of criminals classified as violent should
therefore be included in the 'war on drugs'.

~~~
kazinator
It's not ignored; the paper discusses the "collateral effects" of the WOD, in
contrast with the strict definition of a "drug offender". P 220:

 _In other words, defining “drug offenders” solely as those convicted of drug
crimes is not as objectively correct as it might initially seem. Although
certainly a valid and useful definition, there are other ways to think about
what counts as the product of drug enforcement that may alter estimates of the
impact of the War on Drugs. Furthermore, this section should establish that
scaling back the War on Drugs can have collateral effects — such as changing
how society manages addiction or how enforcement interacts with drug-market
violence — that are not immediately apparent when simply look- ing at arrest
or incarceration rates._

~~~
justinsb
Thanks for pulling out that quote. To me, this section invalidates the whole
paper: I think this paper would have been much more valuable had this been one
of the 5 questions/mechanisms examined.

I suspect though that had it been one of the questions it _would_ have shown a
bigger link between the war on drugs and incarceration, and thus not been
sufficiently interesting to be worthy of publication. Academic click-bait!

~~~
tptacek
Wait, did you _read_ the paper, or did you read the abstract, wait for someone
to quote something from the paper, and then use that quote as an argument
against the whole paper?

If you have read the paper, can you give a serious coherent series of
arguments about how its analysis is broken? Every third page is a simple
presentation of statistics and then an analysis of those stats. Which of them
are wrong?

I'm sorry to ask the question, since "did you actually read" is borderline
uncivil, but when someone quotes something and your reaction is "aha!", the
clear suggestion is that you yourself hadn't read far enough to see that quote
yourself.

It's fine not to read the paper, but it's less fine to suggest that a tiny
quote could invalidate an entire paper that you haven't read.

~~~
justinsb
Of course I didn't read the whole paper! I stopped reading the paper when I
recognized the fundamental flaws:

1) the hypotheses examined were very narrowly framed

2) Footnotes 9 and 13 admit that drug-related offenders may in fact be present
in the statistics as 'violent crime', yet the paper does not consider this
further.

After that I skim-read to ensure there flaws weren't addressed. If I missed
the place where these flaws are addressed, I would appreciate your pointing it
out.

I am glad you read the whole paper, but I would caution you against believing
you got any closer to the whole truth by doing so.

~~~
tptacek
For those playing along at home: this is a paper with 124 footnotes.

~~~
justinsb
If I missed the place where these flaws are addressed, I would appreciate your
pointing it out.

------
adventured
Sure it is.

Let's see a measurement of the total eco-system (cultural, economic, etc)
destruction that the war on drugs has caused to, eg the black community since
1965.

Let's see a proper measurement of all the fallout and spin-off effects,
ranging from from repeat offenders, to fatherless households, to education
effects, to tens of thousands that have been killed as a direct consequence.

Let's measure the land value collapse that went with the war on drugs, which
practically robbed an entire race of people of a prime source of savings and
wealth. To have those potential assets be replaced by completely run down
housing.

Then let's see how the failed policies on drugs, having decimated the black
community in just 20 years, then led to fears about skyrocketing crime rates
and violence that directly came out of that 'drug war' \- including the
implementation of mandatory minimum sentencing, which was a reaction by the
white community, by politicians looking to placate their voters, to the crime
that was caused by the war on drugs.

This article tries to pretend the war on drugs occurred in a semi-vacuum, when
its effects were extraordinarily wide spread, touching every possible aspect
of society. It is precisely the _root_ cause of the extreme rise in the prison
population, all the other causes extended from it.

~~~
TillE
Searched the article for the word "gang". No results.

There's quite a lot of violent crime that's _directly_ related to and driven
by the illegal drug trade.

~~~
adventured
Makes sense. To stick with the false premise core to the article, one would
have to avoid much discussion of the organized crime aspects of the truly
massive black market that the war on drugs created. How that organized crime
affects communities through non-stop fear and intimidation, how it sucks in
desperate people, how it perpetuates an endless cycle of crime and poverty
that is centered around the profit system of the illegal drug trade.

Of course this is already a well understood effect. Which makes the article's
intentional evasion of it that much more blatant. Whether we were to discuss
the effects of organized crime around alcohol prohibition, or the Mexican
cartels. One need look no further than what the war on drugs has done to
hundreds of Mexican towns and cities, to understand what it has done to the
black communities in the US in the last ~50 years.

------
kazinator
> _Only 17% of all prisoners are serving time for drug offenses._

Yeah, but 17% is still a large percentage. A 17% reduction would make a
difference.

~~~
tptacek
This is the wrong way to read the paper. The author isn't making a case
against decriminalizing drugs. He's saying that even if you decriminalize
drugs, you will still need other stronger interventions to work against mass
incarceration and, for that matter, the racial disparities in incarceration.

~~~
kazinator
The specific argument is made that if you decriminalize marijuana, it won't
make a difference because there aren't that many incarcerations for marijuana
specifically.

~~~
tptacek
Which is an argument so obviously true as to be banal; even the marijuana
decriminalization campaign in Colorado pointed it out.

Marijuana is going to be legal in the US. It's not a live issue. We don't have
to import it into every other social science inquiry.

------
bdcravens
Many crimes are driven by poverty. Looking at only drug-related charges is
short-sighted. How many crimes are committed by young men whose fathers were
ever incarcerated for a drug-related charge?

------
argumentum
There seem to be many flaws, but rather than go through them now, I'll assume
that only 20% of incarceration is drug-war based.

 _Great_ , that means if we end the drug war, we'd get _20%_ reduction in our
world-record incarcerated population. A _half-million more people_ (roughly)
will be freed to get treatment and attempt to contribute to the economy and
society.

That sounds like a great start to me.

------
Bud
As an aside, the author of the study clerked for a Reagan appointee (who was
also a Hoover Institute fellow), is from an especially conservative law
school, and seems to have published so far almost exclusively on this
particular topic.

I would personally want to do more research on this person and his writings
before taking his entire argument at face value.

~~~
yummyfajitas
His arguments are laid out in detail. His data is available for inspection.
Could you explain the relevance of his conservative bonafides? If he were a
more typical liberal professor, would that also be relevant?

~~~
Bud
What I see the author doing as I read his work is finding a lot of ways to use
different definitions of terms to determine which offenders count as "drug
offenders". His assumptions are notably different from the assumptions of some
other researchers. It seems possible to me, at least on first skimming of
these articles, that a lot of the differences in the data that Pfaff uses can
be accounted for by these alternative definitions of terms.

For instance, I grant that a "violent offender" who is in jail on a principal
charge of shooting a police officer while in the process of being arrested on
a drug charge or during a drug raid was indeed violent, and is rightly viewed
differently than a "non-violent drug offender".

But we still have to acknowledge that if there were no War On Drugs, then
there wouldn't be as many of those drug raids and drug arrests to begin with.
The circumstances for many of those violent crimes simply would not occur.

So, the process by which you sort the offenders into batches seems to have a
strong impact on the conclusions you make.

------
taeric
If you don't have time to read the whole thing. There is a summarization on
pages 29 & 30.

This is an interesting read on the whole situation. Curious to see where it
leads. And hopeful that more research will make it into decisions. Seems too
much of that space (legislation) is fueled by dogma and priviledged ignorance.

~~~
kazinator
> _There is a summarization on pages 29 & 30._

... corresponding to logical pages 201 and 202.

------
hodwik
Little known fact; the prisons are primarily filled with dangerous criminals.

~~~
mellavora
and how many of them were dangerous criminals BEFORE we locked them up?

~~~
hodwik
According to this study, most of them.

~~~
antimagic
It does make you wonder why the US has so many more "violent criminals"
compared to other similar Western countries though...

~~~
hodwik
If you look at the violent crime offenders in the USA, more than 3/4's of them
are locked up for "Aggravated Assault".

According to Wikipedia, the definition of Aggravated Assault in the US is:

-an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another negligently causing bodily injury to another with a dangerous weapon.[20]

-causing bodily harm by reckless operation of a motor vehicle (vehicular assault).[21]

-threatening another in a menacing manner.[22]

-knowingly causing physical contact with another person knowing the other person will regard the contact as offensive or provocative[23]

-causing stupor, unconsciousness or physical injury by intentionally administering a drug or controlled substance without consent[24]

-purposely or knowingly causing reasonable apprehension of bodily injury in another[25]

-any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.[26]

If you want to investigate the difference, I suspect you should start there,
since that seems to make up the bulk of our incarcerated.

------
simplulo
Completely missing from the article is an estimate of the coupling between
drug and non-drug crime (e.g. prostitution or robbery to finance a drug habit,
violent conflict vertically and horizontally along the supply chain, tax
avoidance, and corruption of police and other government employees). There are
also tertiary effects, like drug gangs engaging in additional illegal
activities supported by the core competencies of trafficking and violence.
This merits an additional study.

~~~
tptacek
Not only is that not completely missing from the paper, it's addressed
empirically. The author is particularly concerned with the affect of prior
drug _arrests_ on felony charging, with previous drug convictions as a
predicate for three-strikes laws, and with the relationship between violent
offenders and drug charges --- they turn out to be mostly disjoint cohorts.

The author agrees with you that further study is merited.

~~~
simplulo
That's a nice start, but many members of a drug gang might not ever touch
drugs, at least if I can believe The Wire's portrayal of drug organizations
and their division of labor. I am also skeptical of the correlation between
arrests for drug offenses (where there is no victim to complain) and violent
crimes.

~~~
tptacek
The author would be the first to agree that there are questions raised by drug
prohibition that we don't have enough data to answer. You should give the
paper a close read. It's hard to come away from it thinking that he's blasé
about prohibition.

------
kazinator
Author should define an abbreviation for "War on Drugs" early in the paper
instead of repeating the full phrase.

------
jakeogh
Either individuals own themselves or they don't. And if we don't, who does?
Where do they get that authority?

------
danharaj
I didn't think that the direct effects of policy of the drug war were
considered the primary driver of prison population growth. The abstract
(because I don't have time to read the whole thing) doesn't mention how much
more _money_ police departments have received, and how their funding rates are
directly tied to how much 'crime' they 'fight'. The author lists what he sees
as the ways drug war policy could impact prison population growth but the list
is meager and does not integrate drug war policy into the broader social and
political context.

The drug war was just a subset of a systematic antagonism by the state against
certain population segments. The same communities that were ravaged by crime
and police alike were pushed into calamity by social policies that lifted up
_ahem_ privileged segments of the population while leaving others in the dust
with inadequate social and economic resources.

The only connection between conviction rates and the drug war the author
considers are drug related convictions. That is, frankly, stupid. It is the
increased presence of police brought about by the drug war by increased
funding, bloating of federal agencies, and escalated enforcement practices
that links the policy to the effect. If a cop is in the neighborhood because
of the drug war and decides to rough someone up and arrest them for 'quality
of life' offenses or 'resisting arrest', that is an effect of policy, of which
the drug war is a major component.

Normally I wouldn't feel so skeptical of an expert's findings on a highly
complicated subject, but there's also the fact that this publication claims it
is nonintuitive and runs counter to the conventional thoughts of his peers. I
think the lines of reasoning I tried to point out are well demonstrated in the
first source he cites, Michelle Alexander's fantastic book. I think the author
can only achieve the results he can by drawing a small box around some
policies and calling that the drug war when what other people call the drug
war is far larger than that.

P.S. Another comment mentioned gang violence, which is strongly linked to
inadequate social and economic resources _and_ a large illegal drug trade.

P.P.S. When the police and prosecution get to decide who is a violent
offender, you can't use measurements of who is a violent offender in order to
establish whether or not police policy is effective and just. Furthermore, why
do people become violent offenders? The higher order effects of a policy that
treats communities as disposable, unwanted, and antagonistic certainly feed
into this.

------
melling
Can someone write a tl;dr? Many a day on HN has been spent ranting about the
war on drugs and the prison population.

e.g.
[https://news.ycombinator.com/item?id=9490310](https://news.ycombinator.com/item?id=9490310)

~~~
hodwik
TLDR: Only 17% of the prison population is made up of drug offenders, making
up only 20% of the 5-fold increase in the prison population in the last half
century, and the types of legislation available to us would likely not lower
that population measurably.

~~~
adventured
And how many of the other 80% were a result of the collapsed economic and
cultural sphere that the war on drugs caused for millions of black families?
(emphasis there, because such a large percentage of that huge increase in
prison population has been black)

None of that happens in a vacuum. If you lock up a parent for drugs, and his
son is raised in a broken household, in a broken neighborhood overflowing with
the effects of failed war on drugs policies, what's the likely outcome to that
situation? You don't have to take my word for it, read any interview with any
black person that has ever made it out of that situation. Read about what
their lives were like, what the culture was like, what their households were
like.

That's why this article's premise is so obviously far off. The war on drugs
touches everything.

~~~
tptacek
I don't know which article you're arguing against, but it isn't this one. This
isn't a case against decriminalization. It's a case that decriminalization of
drugs is _not enough_ to end mass incarceration.

If you believe what you appear to believe about the injustice of mass
incarceration and its racial disparities, as I do, you should be celebrating
this article, not excoriating it.

------
ypcx
Just skimmed the PDF. I believe the war on drugs is responsible for the
majority of the offenses reported in the Violent and Property categories. And
let's finally face it: had psychedelic therapy options been available,
literally no one would get stuck in hard addiction drugs including alcohol.
And had cannabis been legal and used to treat depression, large part of the US
population would not be psychotic and intermittently suicidal zombies. It also
reminds me of the JRE podcast with an ex-cop where he says that 90% of arrests
are due to the war on drugs:
[https://youtu.be/lHb23-puvLI?t=739](https://youtu.be/lHb23-puvLI?t=739)

