Washington Lawyer - August 2017 - 34

WORTH READING

A FRESH LOOK AT
PRISON REFORM
Review by Ronald Goldfarb

n his provocative new book Locked In, Fordham
Law School professor John F. Pfaff explores the
standard, current lore that prison overcrowding
is based on racism, mandatory sentencing, the
overuse of drug laws against black men, and a proliferation of private prisons that creates an evergrowing demand for prisoners. He doesn't deny
these factors contribute to prison overcrowding,
but he goes beyond these familiar premises to
conclude with a fresh and provocative proposal.
Pfaff collects data that raise questions about the
core assumptions of criminal justice reformers. First,
he points out that the so-called system is, in reality,
a patchwork of systems - federal, state, and local
- 87 percent of which is run by the states. He also
punctures the myth that most crime is made up of
nonviolent drug offenses, reporting instead that
more than half of state inmates are imprisoned for
having committed violent crimes. According to
Pfaff, these prisoners serve the longest sentences,
while crime rates have dropped in recent years.
Still, more than 1.5 million inmates fill American
prisons, a far higher number than in any other
country in the world, and their incarceration cost
taxpayers hundreds of billions of dollars each year.
To Pfaff, reforms at the front end - such as changes
in prison admissions - make more sense than
those at the end of sentencing and during parole.
In Pfaff's view, more regulation of prosecutors bears
further consideration. The now-fashionable focus
on reforming drug offenses merely goes after
low-hanging fruit, according to Pfaff. Instead, he
offers more fundamental strategies for reform.
The dialogue over prison reform in recent decades
has encompassed both liberal concerns over
racism, economic disparity, and human rights as
well as conservative objections to the high cost of
prisons. A recent book, Locking Up Our Own, by Yale
Law School professor James Forman Jr. points out
that some blacks view "protection of black lives as
a civil rights issue" and that some in the community
have called for law enforcement to focus on

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black-on-black crime - what he calls a "politics of
responsibility," and protecting the black community
from victimization. In Forman's view, crime victims
want tough law enforcement.
Pfaff's book examines data that point to the
problem identified by federal Judge Jed S. Rakoff:
prosecutors are a major driver of the increase
in incarceration. They are rewarded for high
conviction rates, which are typically achieved by
manipulating the indictment process to garner plea
bargains in which defendants plead guilty to avoid
more excessive charges. Pfaff suggests a change
in plea bargaining guidelines offers an opportunity
to reform this flaw in the sentencing process.
The ideas that Pfaff develops in Locked In are
worth considering. In a recent article in The New
Yorker, Adam Gopnik concluded that prosecutors
nowadays "have something like the authority of
Inquisitors in the old days of the Church." Gopnik
endorses Pfaff's conclusion that "the true cause
of crime is being a young man," and considers
whether our penal system should allow selected
inmates to "age out" of prison at 40.
When dealing with a complex subject such as
prison and criminal justice reform, fresh ideas
like Pfaff's help advance the conversation toward
achieving a more just criminal justice system.
Locked In is a clear-eyed look at a systemic social
problem, and the ideas that it presents are worthy
of consideration by policymakers.

Ronald Goldfarb is an attorney,
author, and literary agent. He can be
reached at ronaldgoldfarb.com or
rlglawlit@gmail.com. Read other
reviews at dcbar.org.

http://www.ronaldgoldfarb.com http://www.dcbar.org http://www.dcbar.org

Table of Contents for the Digital Edition of Washington Lawyer - August 2017