Reviewing Locked In, a new book on mass incarceration

Rob Kepple

TDCAA Executive Director in Austin

By now you have read a lot about various groups seeking to end “mass incarceration” in the United States. In my column in the November-December 2015 edition of this journal, I discussed “the newest theory on ‘over-incarceration.’” (You can read about it here: At the time, Fordham law professor John Pfaff was advancing his theory that mass incarceration has actually been driven by prosecutors. He noted that 20 years ago, prosecutors brought felony charges against one in three arrestees. Today, we are bringing charges against two of three arrestees, and that increase in indictments is the cause of prison growth in the last 30 years.
    Pfaff has now firmed up his theory in a recently released book, Locked In. I was intrigued by his original theory, so I picked up a copy and read it (so you don’t have to!). His main premise is that would-be reformers have missed the point by selling “the standard story.” The standard story is that incarceration rates were driven by the war on drugs in the 1970s through the ’90s, and we can significantly cut prison population by sweeping decriminalization of low-level, non-violent drug offenses. Pfaff spends the first part of his book detailing his research, which demonstrates that prisons are not filled with non-violent drug offenders but rather by mostly violent criminals. It’s not that he doesn’t care about the low-level drug offenders, just that reductions in those penalties won’t lead to closing prisons.
      Pfaff then turns his attention to what he believes is the real reason the prison populations have swelled since the 1980s: prosecutors. His research shows that the number of prison admissions per arrest rose, especially for violent offenders, and that drove up prison numbers. In other words, more people who got arrested for crimes were getting convicted. (By the way, Dr. Tony Fabelo, former director of the Texas Criminal Justice Policy Council and our resident criminal justice data guru, confirms that, indeed, in Texas the number of convictions per arrest has gone up over time.) He argues that nationwide, time served by violent offenders has not gone up much; it really is the increased percentage of arrested people who are convicted and sent to prison that has driven prison growth.
    Pfaff acknowledges that prison expansion has played an important role in the drop in the crime rate, but nevertheless he feels that it is time to significantly reduce the size of our prison populations. And here is where it gets tough for the author: If the real driver of “mass incarceration” is that prosecutors have successfully convicted more violent offenders over time, how do you reverse that trend? And do you really want to? After all, ever since Texas passed the Professional Prosecutors Act in 1979, it has been the policy of the state to professionalize prosecution and make you better at what you do. And it is not like we go out and seek new violent crimes to prosecute; we are just prosecuting what the police (or, arguably, the criminals) give us.
    It’s in the “action item” department that the book falls short. Pfaff casts about with possible solutions, but by remaining general in his discussion, he loses relevance to Texas. I suppose some of his proposals could come to pass here, but it doesn’t seem too likely in the near future. His three big solutions to slow down prosecutors are sentencing guidelines, which significantly reduce the top end and do not allow upward departures; plea bargaining guidelines that prosecutors are ordered to follow (as in New Jersey); and a significant increase in funding for the defense bar. Two more of his proposals already exist in Texas: alternatives to incarceration and more localized prosecution (I bet he doesn’t know that Texas has 334 independent prosecutors). I felt like he was struggling a little when he suggested that maybe our language can make the difference—like, let’s start calling violent offenders “people convicted of violent crimes.” I recently heard someone use the phrase “a formerly violent offender,” so maybe this idea is catching on.
    In the end, I don’t know what we should take away from the book. There was no real guidance for prosecutors in the way of introspection or examination of our practices. Perhaps in the future, Pfaff will take a few years away from the school environment and prosecute. I think he should come to Texas—crime may be down, but last time I checked, y’all were plenty busy and could use the help!
    Finally, if you want to read the book just give me a call. I will send it your way.

Thank you, Perry Cunningham!
I have been a lawyer now for 35 years. As a young lawyer, I was a minion involved in billion-dollar oil and gas litigation. As a prosecutor, I did the complicated cases that you do on a regular basis. When called upon at the capitol to be a resource, I have been involved in the 1993 Penal Code reform, death penalty reform, stalking, hate crimes, discovery—you name it. I am not the best at any of that stuff, but I never mind jumping in and learning the law.
    One area of the law, though, has always terrified me. DWLI. Yes, the dreaded driver’s license suspension laws. It is a deceptively difficult area, and I respect those who wade in and prosecute these cases. Was the defendant driving without ever getting a license? Was the license invalid? Suspended? What was it suspended for? Do I have the right documentary evidence? Secretly, I have made a promise to myself that if possible, I would never in my career as a lawyer try to untangle the legal jumble that is DWLI. My recurring nightmare is that someone calls TDCAA needing legal assistance on this topic, and I happen to be the one to pick up the phone.
    So with that in mind, I extend a hearty “thank you” to Perry Cunningham, an ACDA in Dallas County, for the cover story of the last issue of The Texas Prosecutor, “Untangling how to charge a DWLI.” (Click HERE to read it.) It’s terrific. In fact, it might be in the Top 10 of the most awesome articles ever because it will save me—and undoubtedly thousands of prosecutors who have made that same secret pledge of ignorance—dozens of hours trying to figure out that law. Now I am ready for that phone call!

Thanks to a civil legend
It’s official: Ray Rike has called it a career and retired from the Ellis County and District Attorney’s Office. Ray has been a long-serving civil practitioner in Tarrant and Ellis Counties and has been a mainstay of TDCAA seminars for decades. He is a brilliant lawyer, and his desire to help others in the profession has been his trademark. We will still get to see Ray at our seminars, I am sure, if for nothing more than to enjoy his friendship and a story or two. Thanks, Ray, for your contributions to the cause!

Imitation is the sincerest form of flattery
There are many very active state prosecutor associations in the country, but I have to tell you I believe that The Texas Prosecutor is the flagship publication of them all. Our Editorial Board (Jason Bennyhoff, ADA in Fort Bend County; Kathy Decker, ACDA in Kaufman County; Robert DuBoise, ADA in Palo Pinto County; Brian Foley, ADA in Montgomery County; Mike Holley, ADA in Montgomery County; Gabrielle Massey, ACDA in McLennan County; Kevin Petroff, ACDA in Galveston County; Scott Simpson, ACDA in Bexar County; Melissa Stryker, ADA in Harris County; and Bill Wirskye, ACDA in Collin County) and our communications director, Sarah Wolf, continue to fill the pages with timely and relevant articles, legal pieces, and news of importance to our profession. And I like that the publication has inspired our friend associations to follow suit. Just this month I got a note from my counterpart and good friend in North Carolina, Peg Dorer, who has started publishing a newsletter inspired by The Texas Prosecutor. Indeed, Peg tells me that she regularly tears out articles from this journal and puts them in files as reminders to develop columns like them in the future. Way to go, Texas Prosecutor!

Welcome, Adalia Young    
Next time you call in to our offices, you are likely to have the pleasure of talking with our new receptionist, Adalia Young. Adalia comes to us as a former school administrative assistant with a wealth of office experience, and she spent some time defending our state in the Texas Army National Guard as well. She is doing a great job of getting to know y’all, so please welcome her to the team next time you call in.

Tarrant County’s Annual Report
Last year I mentioned that Tarrant County CDA Sharen Wilson published her office’s 2015 Annual Report. It was ground-breaking, complete with a well-thought-out mission statement. (You can read about it HERE.) She has just put out 2016’s annual report, and it is worth a read. (It’s attached below as a PDF.)
    One great thing to notice is the trends. Between 2015 and 2016, for example, there was a 42-percent increase in requests for protective orders and a 25-percent increase in filings for mental health commitments. Publishing such a report is a great way to educate the public on who works in your office, what your office is doing, and what challenges you are facing.