CRIMINAL PUNISHMENT AND THE POLITICS OF PLACE.

• Author: Pfaff, John F.
• Position: Special Issue: The Geography of Confinement

Introduction 571 I. County Prosecutors, City Crime 574 II. Prisons and the Census 585 Conclusion 592 INTRODUCTION

As a general matter, our criminal justice system focuses on the person: who committed the crime and what punishment does that person deserve? Most of the reforms that have been proposed or passed over the past nine or ten years have primarily focused on the who as well, seeking to change the rules under which parole boards operate, or the ways in which we train or oversee police officers, or how we address implicit racial biases in judges. (1)

Yet where plays a significant role in crime and punishment as well. In fact, in the end, where likely matters more than who. For instance, crime is densely concentrated. Most reported crimes in any city take place in only a small fraction of city blocks, with neighborhoods often maintaining their high- or low-crime status even as the population within these neighborhoods changes. (2) As one scholar points out, it is easier to predict where a crime will happen in a city than who in that city will commit it. (3) Furthermore, racial disparities in offending are the product of place, produced in no small part by how government policies have shaped where people live. Decades of government policies, such as explicitly segregating public housing, (4) explicitly and implicitly tolerating or encouraging redlining, (5) and denying the GI Bill (6) and FHA mortgages (and thus the ability to invest in higher-quality housing) to Black Americans, (7) all worked to concentrate disadvantage and social instability in poor, predominantly minority neighborhoods. (8) The cumulative effects of these policies are still felt today. (9)

If the story of crime is largely one of place, then the story of punishment is as well. A significant share of crimes occurs in proximity to where those who commit them live, so the geographic concentration of crime concentrates punishment as well. Some studies talk of "million dollar blocks," which are single city blocks that have so many residents behind bars that at any given time the state is allegedly spending at least $1 million per year to incarcerate these people. (10) As a result, the costs (as well as the benefits) of punishment have an impact on place that extends beyond the individuals incarcerated. A simple but striking example: in one study of a high-incarceration neighborhood in Washington, D.C., scholar Donald Braman reported that so many men were behind bars that it disrupted family formation in that area. (11) Healthy family formation requires a male-female ratio of approximately 50-50, but in some areas, that ratio fell to about 60 men for every 100 women. (12) Since most people form relationships with those they live close to, this is a clear geographic cost of punishment.

This Essay explores another connection between punishment and place: how geography shapes the politics of punishment. To understand why actors in the criminal justice system act the way they do, it is essential to understand their incentives, and that requires us to carefully examine not just who these people are but where they are. What are the boundaries that define the constituents to whom these actors respond and thus their incentives and goals?

When we take a closer look at the geography of criminal justice, we soon see that what we call the "criminal justice system" is not in any way a system. It is, at best, a web of systems (plural), each of which faces different pressures and politics due in part to different geographies. Police are generally city employees who respond to a police chief who is appointed by a city-elected mayor. Prosecutors are almost always elected by county electorates, parole boards are appointed by state-elected governors, and sentencing laws are written by legislators who are nominally state officials but respond to constituencies that could span several towns (in rural areas) or barely one neighborhood (in dense cities). (13) Judges can be state or county officials, who are either elected or appointed, depending on the state. (14) Neighborhoods have different goals than their cities, cities than the counties in which they are located, and counties than the states they make up.

Sometimes the jurisdictional lines we draw may make sense, but quite often they appear to be haphazard, if not completely arbitrary. Why, for instance, do we choose prosecutors along county lines? As we will see, many actors in the criminal justice system face troubling or perverse incentives, in no small part because of the constituents to whom they respond (or the people to whom they don't respond). (15)

To examine the role of place in the politics of punishment, this Essay considers two examples: (1) the decision to elect prosecutors at the county level, and (2) the impact of locating prisons in rural communities. Both push us towards greater punitiveness and away from often-sensible reforms in subtle but important ways that have started to garner attention among scholars and activists but are still under-appreciated. One weakness of current reform efforts is that they rarely target these underlying geographic (and other structural) issues that led to mass incarceration in the first place. Many of the same pressures that caused us to over-react to rising crime in the 1970s and 1980s and under-react to falling crime since the 1990s remain; unless reforms confront these structural issues, it may not take much of a rise in crime to see many reforms undone.

1. COUNTY PROSECUTORS, CITY CRIME

   Perhaps the single most important actor in the criminal justice system today is the prosecutor. (16) Unfortunately, there is a geographic disconnect that distorts the incentives many of them face in deeply problematic ways. As a general matter, prosecutors are elected by county electorates, but the communities with the most voting power are rarely those whose members are most likely to face prosecution. (17) As we will see, this separates the costs and benefits of aggressive enforcement in ways that can lead prosecutors to both under-enforce and over-enforce criminal laws.

   It is hard to understate the power of prosecutors. Granted nearly-unfettered and nearly-unreviewable discretion, prosecutors determine almost every aspect of a defendant's case: they decide whether to press charges or drop the case, whether to divert the case to some sort of alternative court or push through for a conviction, whether to charge the defendant with a felony or a misdemeanor, whether to file a charge that carries a mandatory minimum sentence, whether to seek jail or prison time as part of the plea bargaining process, and so on. (18) Moreover, prosecutors' offices are better funded and staffed than government-provided counsel who represent the 80% of defendants who face prison or jail time and qualify as indigent. This funding disparity further increases prosecutors' advantage. (19)

   As a result, prosecutors played a central role in pushing up prison admissions and populations, especially over the course of the 1990s and 2000s, as the crime rate fell steadily and the rate of serious crime fell steeply. (20) Between 1994 and 2008, total arrests fell by about 10% while the number of felony cases filed in state court rose by around 40%; fewer people were entering the system, but more people were entering prison. (21) That increase in filings, a decision wholly within the purview of the prosecutor, drove prison growth; the other two plausible sources of prison growth, namely the probability that a felony case resulted in an admission to prison and the time spent in prison if admitted, both remained stable over this time. (22) At least during the period of crime decline, rising incarceration rates were propelled most significantly by prosecutorial charging decisions. (23)

   Prosecutors have also driven prison growth in other less immediately-obvious but no less important ways. For example, some critics of the view that prosecutors are central to prison growth have argued that legislatures and the judiciary bear a big part of the blame instead, but this claim ignores the fact that district attorneys shape these institutions as well. (24) District Attorney associations are effective advocates for harsh new laws and are generally against efforts at reform. (23) And many judges are former prosecutors--far more than are former defense attorneys--who likely bring with them a prosecutorial mindset, even if just subconsciously. (26)

   By almost all accounts, their aggressive emphasis on incarceration was unnecessary, if not actually counterproductive. (27) And, as we will see, geography played an important role in driving this prosecutorial overreach. But first, it is also useful to look at a far less appreciated story of problematic prosecutorial leniency that further highlights the importance of place. As William Stuntz points out, over the 1960s, as crime appeared to start rising sharply, (28) incarceration stayed flat, and at times declined. (29) Figure 1, which plots the incarceration rate not in terms of per 100,000 people (as it usually is shown) but in terms of per 1000 reported violent and property crimes, illustrates this clearly. Prosecutors (as well as police and other law enforcement officials) appear to have under-responded to rising crime in the 1960s and 1970s just as much as they over-responded to falling crime in the 1990s and 2000s.

   Both of these mis-reactions are troubling. The over-reaction in the 1990s and 2000s sent thousands of people to prison with little benefit to public safety--and might have even made things worse. (31) And the under-reaction in the 1960s and 1970s not only led to excessive victimization, especially among poorer and more-minority populations, but it also surely contributed to the tough-on-crime backlash against seemingly-weak criminal justice policies that helped drive punitive practices in the 1980s and well into the years after. (32)

   Geography helps...