A focus on drug offenders and private prisons can distract from the larger problem. Illustration by Ben Wiseman

Reformers are famously prey to the fanaticism of reform. A sense of indignation and a good cause lead first to moral urgency, and then soon afterward to repetition, whereby the reformers become captive to their own rhetoric, usually at a cost to their cause. Crusaders against widespread alcoholism (as acute a problem in 1910 as the opioid epidemic is today) advanced to the folly of Prohibition, which created a set of organized-crime institutions whose effects have scarcely just passed. Progressive Era trade unionists, fending off corporate thugs, could steer into thuggish forms of Stalinism. Those with the moral courage to protest the Vietnam War sometimes became blinded to the reality of the North Vietnamese government—and on and on. It seems fair to say that a readiness to amend and reconsider the case being made is exactly what separates a genuine reforming instinct from a merely self-righteous one.

The fight against mass incarceration in the United States is no exception to this rule. In recent years, the horror of what Americans have done to other Americans—and particularly white Americans to black Americans—has led to a steady, engaged anti-prison polemic, one with many authors singing more or less in unison. The numbers make their own case: 6.7 million people, mostly men, were under correctional supervision during the year 2015—more than were enslaved in antebellum America and more than resided in the Gulag Archipelago at the height of Stalin’s misrule.

In a new book, “Locked In” (Basic), John F. Pfaff, a professor of law at Fordham, calls this choired voice (in which this writer has been a participant) “the Standard Story.” The standard story, as he sees it, insists that, first, the root cause of incarceration is the racist persecution of young black men for drug crimes, which overpopulates the prisons with nonviolent offenders. Then mandatory-sentencing laws leave offenders serving long prison sentences for relatively minor crimes. This hugely expanded prison population, one that tracks in reverse the decline of actual crime, has led to a commerce in caged men—private-prison contractors, and a specialized lobby in favor of prison construction, which in turn demands men to feed into the system. (This exploitation is further supported by local communities in which a new prison can replace a closing factory, providing one of the few reliable sources of decent incomes for working-class, mostly white men.)

Pfaff, let there be no doubt, is a reformer. “Mass incarceration,” he writes, “is one of the biggest social problems the United States faces today; our sprawling prison system imposes staggering economic, social, political, and racial costs.” Nonetheless, he believes that the standard story—popularized in particular by Michelle Alexander, in her influential book, “The New Jim Crow”—is false. We are desperately in need of reform, he insists, but we must reform the right things, and address the true problem.

Pfaff takes on the elements of the standard story one by one, mostly concentrating on statistics involving state prisons, where the majority of inmates are housed. (American prisons operate in such a complicated patchwork of federal, state, and local jurisdictions that, as Pfaff points out, it is hard to get a good handle on the numbers.) First, he inspects the claim that it is predominantly nonviolent drug offenders, imprisoned against all moral logic, who populate our prisons. It’s a claim that President Obama endorsed as recently as 2015: “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before, and that is the real reason our prison population is so high.”

In fact, Pfaff argues, drug convictions are a distinctly secondary factor in prison growth. During the great wave of incarceration—generally thought to have begun around 1980, and cresting about three decades later—state prisons added something like a million inmates, with about “half that growth coming from locking up more people convicted of violence,” Pfaff calculates. Nonviolent drug offenses accounted for only around a fifth of the new incarcerations.

What’s more, many of the drug convictions were meant to be what Pfaff calls “pretextual attacks on violence.” Violent crimes that are associated with drug dealing are more difficult to prosecute than drug offenses themselves, which usually involve hard evidence rather than the testimony of witnesses. This argument sets off some suspicious-skeptical alarms, since it seems cousin to the idea that we might as well lock ’em up for drugs as for anything else, since, if we didn’t, “they” would be committing violent offenses anyway. “It is, of course, completely fair to debate the morality . . . of using drug charges to tackle underlying violence,” Pfaff observes, to his credit. He accepts that “blacks are systematically denied access to the more successful paths to economic stability,” and therefore “face systematically greater pressure to turn to other alternatives.” But he also makes a more complicated argument, following recent sociological research: it’s not that the prohibition of drugs attracts crime, which then produces violence; it’s that violence thrives among young men deprived of a faith in their own upward mobility, making drug dealing an attractive business. In plain English, young men without a way out of poverty turn to gangs, and gangs always turn to violence. Since efficient drug dealing is, by its illicit nature, likely to involve violence, those accustomed to violence are drawn to drug dealing. One sees the logic: Lucky Luciano and Al Capone weren’t ambitious street kids who chose bootlegging as a business, and were then compelled to become gangsters to pursue it, as in “Boardwalk Empire.” They were already cadet gangsters, who saw that their acquired skills lined up neatly with those demanded by bootlegging.

And so the war on drugs, however misguided as social policy, was not, Pfaff insists, a prime mover of the epidemic of incarceration—the numbers just aren’t there. Even in New York State, famous for its Draconian “Rockefeller laws,” the decline in the number of inmates imprisoned for drug offenses in the past fifteen years has been dramatic—without changing the face, or the fact, of mass incarceration. Pfaff calls this his core claim: “If we define the people in prison as a result of the war on drugs to be those serving time for a drug conviction, then that war simply hasn’t sent enough people to state prisons for it to be a major engine of state prison growth.”

What about mandatory sentences? Pfaff notes that these outsized punishments are given to a very small part of the actual prison population. Most new inmates are serving relatively short sentences. This, Pfaff observes, is essentially good news. “Prison admissions are a flow, not a stock,” he writes. “They depend far more on choices made today than on the lingering effects of thousands of past decisions.” Pfaff deals with the issue of for-profit prisons with similar statistical efficiency: even if private prisons were banned tomorrow and all their inmates released, the prison population would drop by, at most, eight per cent. The numbers just aren’t there.

So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.

Pfaff, in making his case, points to a surprising pattern. While violent crime was increasing by a hundred per cent between 1970 and 1990, the number of “line” prosecutors rose by only seventeen per cent. But between 1990 and 2007, while the crime rate began to fall, the number of line prosecutors went up by fifty per cent, and the number of prisoners rose with it. That fact may explain the central paradox of mass incarceration: fewer crimes, more criminals; less wrongdoing to imprison people for, more people imprisoned. A political current was at work, too. Pfaff thinks prosecutors were elevated in status by the surge in crime from the sixties to the nineties. “It could be that as the officials spearheading the war on crime,” he writes, “district attorneys have seen their political options expand, and this has encouraged them to remain tough on crime even as crime has fallen.”

Meanwhile, prosecutors grew more powerful. “There is basically no limit to how prosecutors can use the charges available to them to threaten defendants,” Pfaff observes. That’s why mandatory-sentencing rules can affect the justice system even if the mandatory minimums are relatively rarely enforced. A defendant, forced to choose between a thirty-year sentence if convicted of using a gun in a crime and pleading to a lesser drug offense, is bound to cop to the latter. Some ninety-five per cent of criminal cases in the U.S. are decided by plea bargains—the risk of being convicted of a more serious offense and getting a much longer sentence is a formidable incentive—and so prosecutors can determine another man’s crime and punishment while scarcely setting foot in a courtroom. “Nearly everyone in prison ended up there by signing a piece of paper in a dingy conference room in a county office building,” Pfaff writes.