Why The War On Drugs Matters In Mass Incarceration, Part 3: Felony Sentences

Xenocrypt
Xenocrypt
Nov 15, 2017 · 9 min read

Introduction:

This is the third article in a (hopefully) five-part series on the effects of “The War On Drugs” on “mass incarceration”, and why we shouldn’t dismiss those effects by focusing on a single statistic like “the incarceration rate”.

In part one, I showed that many of the “extra” prison sentences issued over the mass incarceration period seem to have been issued on drug offenses, along with other non-violent offenses:

And in part two, I wrote about how “the incarceration rate” statistic mixes up increased number of prison terms for non-violent offenses, such as drug offenses, with increased prison term length for violent offenses:

But just as you’ll miss growth in non-violent prison sentences if you only focus on the incarceration rate, you’ll miss something important if you only focus on prison itself: felony convictions.

In this article, I’ll discuss the public data I’m aware of on felonies. Despite the limitations of that data, I think there’s enough evidence to reasonably suspect that drug offenses drove a lot of the growth in felony sentences. Either way, the topic deserves more attention, and better information, than it has.

The Magnitude Of Felony Sentences:

How important are felony sentences in American criminal justice? Compare them to prison sentences.

To repeat a point from earlier in this series, the number of (state) prison sentences per capita increased dramatically from 1980 to 1990 and has more or less stayed elevated since:

As dramatic and important as that has been, the scale looks a bit less dramatic when you add estimated state felony sentences to the graph:

(Unfortunately the “Felony Sentences In State Courts” series was only released from 1986 to 2006, but I am using the same scales to emphasize the “missing data”.)

Both in terms of scale and in terms of amount of growth, the felony sentence rate dwarfs the prison sentence rate. So felonies — “widely defined as crimes with the potential of being punished by more than 1 year in prison” — are actually a much larger part of the criminal justice system than are, per se, prison terms. In the last year of this series, 2006, there were estimated to be 1.1 million state felony convictions, but only 460,000 of them resulted in a prison sentence. (Although another 320,000 felony convictions resulted in a jail sentence, and I imagine nearly all of the defendants were detained at some point of the process.)

I can’t actually fill in the rest of that graph of felony sentences, but I suspect the rest of it might look something like this —huge growth from 1980 to 1990 which has more or less persisted, similar to prison sentences:

In other words, I think it’s likely that the growth in prison sentences was mostly a subset of growth in total felony sentences. If the “mass incarceration” era saw millions and millions of “extra” prison sentences issued on top of previous policy baselines, then there were probably even more millions and millions of “extra” felony sentences on top of that.

Without better data we can’t say for sure.

National State Felony Sentences, 1986–2006:

Assuming I’m right that millions of “extra” felony sentences were issued over the “mass incarceration” period, we can ask the same question we asked about prison sentences: What offenses were these “extra” felony sentences issued for?

For prison sentences, I compared subsequent years to the “baseline year” of 1977 and saw that most of the “extra” prison terms were for drug or public order/other offenses. Unfortunately, as I said above, the only national estimates of state felony sentences were released every two years from 1986 to 2006. 1986 — after prison sentences had started climbing; just as the drug war was beginning — is not a good baseline year.

Still, the national series can give us some idea. Here’s national state felony sentence estimates per capita by offense category:

To me this looks consistent with what we saw with prison sentences. For both prison sentences and felony sentences, the drug offenses share increased rapidly from 1986 to 1990 and then stayed relatively flat until 2006. (By 2011 the drug offenses share dropped for prison sentences, but we don’t have that data for felony sentences.)

Partial State Felony Statistics 1980–1990:

Is there any information on felony sentences that covers a good “baseline year”?

As far as I know, the only public data series on felony sentences by offense that begins before 1986 is the Offender Based Transaction Statistics” (OBTS), a set of individual-level records issued for various states from 1979 to 1990. The OBTS series does include offense codes, but it only seems to be reliable for some states in some years.

Given how incomplete the records are, I don’t think it’s possible to construct anything like a national projection, but partial coverage is better than no coverage. Here are state felony sentences per capita by offense category for selected OBTS states:

(For why those particular states and years were selected, see my note on data choices.)

Classification and recording issues surely abound here, and these states might well be unrepresentative, but once again I think this chart is broadly consistent with what we’ve seen with prison sentences. In five of the seven states — California, New York, New Jersey, Virginia, and Alabama — drug offenses accounted for a majority, or just under a majority in the case of New York, of the growth in the felony sentences over the baseline of the earliest year included. (They may not have been as important in Pennsylvania or Minnesota.) Felony convictions for violent offenses do not seem to have driven much of the growth directly in any of the seven states.

Since the available information on felony sentences is consistent with prison sentences, and since drug offenses accounted for a large share of “extra” prison sentences over the whole “mass incarceration” period, it seems reasonable to suspect that drug offenses also accounted for a large share of “extra” felony sentences. However the data is extremely limited and in particular isn’t any national data covering a good baseline year.

The Universe Of Current And Former Felons:

As large as felony sentences are, it shouldn’t be surprising that the universe of current and past convicted felons is also quite large, which has a huge impact. Felony records are quasi-permanent, with a host of formal and informal consequences that might last long after a person is no longer “incarcerated”. (Probably the most-discussed is felony disenfranchisement, but ex-felons are only permanently barred from voting in certain states.) It goes back to one of my main arguments in this series: No single statistic like “the incarceration rate” will ever be enough to understand something as large and complicated as the American criminal justice system.

Just how big is the population of current and past convicted felons? Unsurprisingly, it’s estimated that it’s much larger than even the large population with current or past prison record. According to the same “Demography” paper that I referenced in Part One, as of 2010:

— 3% of American adults, or 7 million people, had current or past prison records as of 2010, but

— Fully 8% of American adults, or 19 million people, had current or past felony records:

That means that a pretty large majority of the universe of current and former felons have never been to “prison”, although again I assume basically all of them have been arrested, been to jail, or been “incarcerated” in some sense at some point.

As the above table shows, the authors also estimated the number and percentage of Americans with current or past felony records grew markedly over the “mass incarceration” period, right along with prison sentences.

In other words, it’s not just that more people are going to prison, but more people are going through the whole felony system:

Shannon et al estimate that only 3% of American adults — 5 million people — had felony records in 1980, again compared to 8% of American adults — 19 million people — in 2010. That would seem to imply that at least 5% of American adults, or over 12 million people, might have “extra” felony records today.

Given the data limitations, the authors had to interpolate a lot, and I doubt even they would want you to consider these estimates to be exact.

But it’s probably safe to say that millions and millions of Americans have felony records today who wouldn’t have felony records under previous policy baselines, and again most of that is entirely invisible from the perspective of “the incarceration rate”. Whether or not you want to consider them part of “mass incarceration”, understanding them is crucial to understanding the effects of the criminal justice system.

Conclusion:

Because of the limited available evidence, I don’t want to try to estimate the effect of drug offenses on felony sentences. But to give a hypothetical that I think is plausibly consistent with the available evidence: If the felony sentence rate doubled from 1980 to 1990 and then stayed relatively flat, and if drug offenses rose from 15% to 30% of felony sentences from 1980 to 1990 and then stayed relatively flat, then drug offenses might account for about 44% of “extra” felony sentences over the 1980 baseline.

Perhaps drug offenses declined over the past few years and it’s a bit smaller. Perhaps I’m totally off. There might be earlier or more accurate data on felony sentences that I’m not aware of (especially for individual states).

What seems clear enough is that felony sentences are a large part of the criminal justice system (even when they’re not a part of “mass incarceration” as such), and that drug offenses have been a large part of felony sentences and probably a larger part of the growth in felony sentences. We probably need better data to understand exactly how much felony sentences have grown and the exact amount and nature of the role of the war on drugs in that growth, though.

Sources And Notes:

For a (perhaps excessively) detailed look at how I used the OBTS data, see:

https://medium.com/@xenocryptsite/note-on-how-i-used-the-offender-based-transaction-statistics-obts-series-efe3a69af87e

The national estimates of felony sentences, the “Felony Sentences In State Courts Series”, were taken from bi-annual reports: 1986, 1988, 1990, 1992, 1994, 1996, 1998, 2000, 2002, 2004, 2006.

The “Demography” paper is “The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948–2010” by Shannon, Uggen, Schnittker, Thompson, Wakefield, and Massoglia. Shannon linked to a readable version of it on Twitter.

The state-level individual records of felony arrests, the “Offender Based Transaction Statistics”, can be downloaded from the ICPSR’s “National Archive Of Criminal Justice Data”. The citations I’m supposed to use are so long they distort the length of this article so I put them elsewhere.

State and national populations are from the BEA API.

New court commitments from the BJS.

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