This Is What It Will Take to End Mass Incarceration – By Leon Neyfakh SEPT. 2 2016 5:02 PM

Photo by NOEL CELIS/AFP/Getty Images

Photo by NOEL CELIS/AFP/Getty Images

The New York Times published an important, eye-opening story Friday that decisively identifies the driving forces of mass incarceration in America: overzealous local prosecutors and judges in conservative rural counties who continue to believe that throwing people in prison for drugs is a good idea.

The story, by Josh Keller and Adam Pearce, shows just how much variation there is in punishment from county to county, noting in its lede that a man who was sentenced to 12 years in prison for selling oxycodone in Dearborn County, Indiana, would have received six months at most if he had been prosecuted 20 miles away, in Cincinnati, Ohio. While many large cities have significantly reduced the number of people being sent to prison, the Times reports, prosecutors and judges in many small counties throughout the U.S. have only become more punitive, even as crime has fallen.

Using new data from the Department of Justice, the Times proves a point that some experts, most prominently Fordham law professor John Pfaff, have been making for a long time: If we are serious about reducing the nation’s sky-high incarceration rate, it can only happen if actors at the local level, especially prosecutors, can be convinced or forced to be less aggressive in the charges they pursue.

These three paragraphs from the Times story explain the depths of the nation’s criminal justice problem:

The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”

He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

That quote underscores just how much power and autonomy county prosecutors have. It also identifies the one way that ordinary Americans can exert pressure on them: by voting. Unfortunately, most people don’t pay much attention to prosecutor elections, and know little about how to evaluate the candidates. As a result, incumbents like Negangard almost always get reelected.

There is reason to be cautiously optimistic: Thanks in part to the Black Lives Matter movement, prosecutor elections have been attracting more scrutiny from journalists, activists, and donors over the past year or so, and in a number of races we have seen extremely “tough on crime” incumbents defeated by more moderate, or even downright progressive, challengers. Two recent examples are Anita Alvarez in Chicago, who was defeated by Kim Foxx in March, and Angela Corey in Jacksonville, who was trounced by an ever-so-slightly reform-minded Melissa Nelson in a Republican primary earlier this week.

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Cory Booker: Senate bill is “in my lifetime the first reversal of mass incarceration” – Updated by German Lopez on May 17, 2016, 8:00 a.m. ET

Sen. Cory Booker acknowledges that the Senate’s criminal justice bill is not perfect. But he doesn’t hesitate to point out that “it’s in my lifetime the first reversal of mass incarceration in the federal level.”

The legislation contains some big compromises: It keeps many mandatory minimum sentencesdoes not shorten sentences for violent offenders, and adds a new mandatory sentencing enhancement for fentanyl, a powerful opioid, when it’s present in trafficked heroin. Booker said that if it were only up to him, the legislation would have gone much further in rolling back punishments, and it wouldn’t have added the mandatory enhancement for fentanyl.

But he argued that at the end of the day, the bill would be progress, leading to fewer people in federal prisons. It would reduce some mandatory minimum sentences — retroactively for nonviolent offenders. It would give judges the power to downgrade 10-year mandatory minimum sentences for first-time drug offenders. And it would let people currently in prison take steps to reduce the length of their sentences through special programs, as long they demonstrate they no longer pose a threat to society.

(For more on the law, Families Against Mandatory Minimums has a great rundown.)

Booker argued this is enough to make the law a net good. And as a progressive senator, he said people should get on board.

Here’s my conversation with Booker, edited for length and clarity.

The criminal justice reform bill is a compromise

German Lopez: Since we last talked, the criminal justice reform bill was introduced and changed, and it’s now definitely safe to say it’s a compromise. How do you view the legislation now that it’s closer to final form?

Cory Booker: It’s never been the totality of what I wanted. It’s never been as bold as I wanted it to be. But it is a significant bill in the sense that it is stopping this drift that we’ve seen over the last 20, 30 years toward massive hyper-incarceration. And in fact, it’s the first major [federal] bill that’s going to begin to unwind or move the pendulum back toward the sanity that we as a nation should be so urgently demanding.

So the compromises at the end of the day — and some people are making them out to be far worse than they actually are — don’t undermine the truth of the bill. This is going to take our serious problem of over-incarceration and begin to reduce it, give judges more discretion, give people with these long, unnecessary sentences avenues to earn their time down and get more early release, and affect people as they come out of prison in a way that will empower them to be more successful. All those things are good things.

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The simple truth about why mass incarceration happened – Updated by German Lopez on August 30, 2015, 10:00 a.m. ET

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It’s a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there’s a much simpler explanation: The public wanted mass incarceration.

Chart of percent of Americans who said crime is "the most important problem."

It’s easy to forget now, but the politics of crime were huge in the 1990s. According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns. From the late 1960s to the early 1990s, crime was unusually high. The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence. So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It’s very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that researchhas shown that mass incarceration only partly contributed to this decline.

But people didn’t know that at the time. They didn’t know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive.

Politicians thought crime would get worse, not better

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people. This great video, from the New York Times, captures the era well:

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime. That’s partly why liberals like Hillary ClintonJoe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration. It’s why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime. And it’s why practically every state passed tough-on-crime policies throughout the 1980s and 1990s.

More than two decades later, criminal justice reform is all the rage. It’s an expectation for Democratic presidential candidates to have a progressive criminal justice platform. So the same politicians who caused this problem are being asked to undo what they did in the past. And they face a common question: How can they be expected to solve a problem that they helped cause?

Popular demand for tough-on-crime laws in the past doesn’t in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies. But based on voters’ concerns in the 1990s, if a politician didn’t contribute to the problem back then, he or she may not be prominent enough to run for president today. That’s how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

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