Mass Incarceration : Throughline The United States imprisons more people than any other country in the world, and a disproportionate number of those prisoners are Black. What are the origins of the U.S. criminal justice system and how did racism shape it? From the creation of the first penitentiaries in the 1800s, to the "tough-on-crime" prosecutors of the 1990s, how America created a culture of mass incarceration.

Mass Incarceration

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


JUDY WOODRUFF: The U.S. locks more people up than any other country.

UNIDENTIFIED PERSON #1: There's been a lot of talk about mass incarceration in the last few years.

MICHAEL JACOBSON: But we incarcerate a greater percentage of our population than any country on Earth.

MARTHA TEICHNER: Even though over the last 20 years the crime rate has actually dropped.

UNIDENTIFIED PERSON #2: The American criminal justice system gives local prosecutors enormous discretion. And historically, they've used it in service of a harsh law and order agenda.

UNIDENTIFIED PERSON #3: In fact, there's a long history in this country of dealing with problems in the African American community through criminal justice system.


You're listening to THROUGHLINE from NPR.


Where we go back in time...

ABDELFATAH: To understand the present.

ARABLOUEI: Hey, I'm Ramtin Arablouei.

ABDELFATAH: I'm Rund Abdelfatah.

ARABLOUEI: And on this episode, the origins of mass incarceration in America.

ABDELFATAH: The United States imprisons more people than any other country in the world. And that includes China, which has a population of more than 1.3 billion.

ARABLOUEI: What's even more striking is that a third of American prisoners are black.

ABDELFATAH: Across the political spectrum, many Americans agree that this is a major problem facing the nation. But naturally, the next question is, what do you do about it?

ARABLOUEI: And that question is hotly debated. Much has been written about it in recent years. But a look at the history of mass incarceration and how it developed in the U.S. is necessary to begin to come up with solutions.

ABDELFATAH: And the story of how the U.S. came to incarcerate more than 2 million people isn't just about the things we hear all the time - the drug war, mandatory minimums, racial profiling. It's also about how the country developed a culture that uses imprisonment to deal with criminality.

ARABLOUEI: It's about power and how the criminal justice system was shaped by a culture that sees African Americans as more prone to criminality and therefore, subject to control and imprisonment by the state.

ABDELFATAH: We'll start in the 1800s at the creation of the modern penitentiary in America.

ARABLOUEI: Then we'll examine how after the Civil War, cultural stereotypes criminalized an entire section of the population.

ABDELFATAH: And we'll end with the story of the American prosecutor.


ARABLOUEI: You're listening to THROUGHLINE from NPR.

Part one - the experiment.

ABDELFATAH: All right. Back in February, on a super cold day, Ramtin and I, along with our producer Lawrence Wu, packed into a car and drove down to Philly to visit Eastern State Penitentiary.

DAMON MCCOOL: We're going to go up the stairs. There's going to be a couple points where I'll tell you to watch your head, but I'll let you know when that happens.


MCCOOL: You guys cool going up here?


ARABLOUEI: Of course.

ABDELFATAH: Yeah. Yeah. This looks - I mean, this is - to be honest...

Eastern State opened in 1829 and stayed open as a functioning prison until 1971. Today, it's a museum that sits right in the middle of the Fairmount neighborhood of Philadelphia.

MCCOOL: It wasn't always, though. When the prison was built...

ARABLOUEI: Yeah. I was going to ask, when they first built - was this on the outskirts of Philadelphia?

MCCOOL: Yeah, so the prison was built on a cherry orchard about...

ABDELFATAH: The prison is basically a central building with five long corridors protruding from each side. Abandoned cells line the walls of each corridor. You can still see metal bed frames in some cells; rusted toilets in others. It looks frozen in time.

MCCOOL: My name is Damon McCool. I'm a tour guide here at Eastern State Penitentiary.

ABDELFATAH: At one point, Damon took us up a set of winding, creaky stairs to the guard tower. It must have been at least 30 feet high. I'm out of shape, and Ramtin is scared of heights, so it was kind of an ordeal getting up there. But once we did...

ARABLOUEI: This is...


ARABLOUEI: This is...

ABDELFATAH: ...We could see the entire prison.

ARABLOUEI: This is crazy. I mean, it's just - you get a real sense up here the scale of the prison - just how many people would have been in such a small place and just the difficulty, probably, in managing the space.

MCCOOL: We're in the center. We're above the center of the prison, and every cell block was intended to radiate out of this place.

ABDELFATAH: So that you can keep an eye on everything at the same time.

MCCOOL: That's the idea - security and surveillance.

ABDELFATAH: You want to walk around?

From those heights, you could imagine a full prison, hundreds of people locked away in small cells. It looks industrial and efficient, almost like a computer chip. There's a coldness to its design. So it's easy to forget that when it was built, Eastern State was progressive.

MCCOOL: So the building is an architectural marvel. When it was built, it was the largest public building in America. When Eastern State opened, every single cell had a sink and a flushable toilet inside of it, which was revolutionary because this penitentiary had indoor plumbing before the White House.


STEVE BUSCEMI: A building designed to inspire penitence or true regret in the hearts of criminals.

ABDELFATAH: If that voice sounds familiar, it's because it's actor Steve Buscemi. He narrates Eastern State's audio tour.


BUSCEMI: The architects here believed that all human beings, regardless of their behavior, have good in their hearts. They believed Eastern State Penitentiary would inspire a new generation of prisons worldwide, built on this optimism and faith in the human character.

ABDELFATAH: Eastern State was part of the movement that laid the foundation for America's penitentiary system, and that approach to systematic imprisonment created the conditions for the mass incarceration problem that would happen more than a century later. But initially, it was an idea based on seemingly good intentions.

The founders of the prison were Quakers. They believed that the purpose of punishment was penance. Until that point, most American prisons were just holding cells packed with men, women, even children - people convicted of everything from petty crimes to murder. And it made for filthy and violent conditions. So the creators of Eastern State sought to make a prison that was more humane, that would move prisoners into individual cells, giving them time to reflect, work and read the Bible. Penitentiaries were supposed to heal people, but that's not exactly how things worked out.

Steve Buscemi describes the case of a guy named John Curran, a 22-year-old inmate who served two years for stealing a horse.


BUSCEMI: Curran spent 23 hours a day inside his cell. He was not allowed to speak to anyone except the chaplain or the guards, who were called overseers. He slept in his cell. He ate three meals a day in his cell, and he worked there as well. Prisoners made chairs. Some wove fabric. Others dyed cloth.

ABDELFATAH: Why did prisoners like Curran spend so much time alone? Well, the idea was that being alone would give the prisoner time to reflect on what they'd done, that they would find God and become rehabilitated. The building design itself was supposed to evoke spirituality.

MCCOOL: So you'll notice 30-foot-tall barrel rolled ceilings, lots of natural light. Some early observers have called the skylight in every cell the eye of God, so there's definitely religious undertones to the building.

ABDELFATAH: Researchers and government officials around the world took interest in this new prison model. They visited the prison to study its impacts. One of those visitors was Alexis de Tocqueville. He's most known for his book "Democracy In America," which was published in 1835. But the purpose of his visit to the U.S. was to learn about innovative American prisons for the French government.

MICHAEL MERANZE: Because at that point, the U.S. was considered the leading reform country for punishment.

ABDELFATAH: This is Michael Meranze. He's a historian of American prisons.

So when de Tocqueville visited Eastern State Penitentiary in 1831, he told his guides...

SEYMOUR DRESCHER: I would like to interview the prisoners.

ABDELFATAH: The guides said, sure.

DRESCHER: They're very proud of their system.

ABDELFATAH: But the conversations probably weren't what de Tocqueville expected.

DRESCHER: Almost every prisoner is in tears. They say, it's so isolated; it's so lonely.


BUSCEMI: In the gloomy solitude of a sullen cell, there is not one redeeming principle. There is but one step between the prisoner and insanity - inmate James Morton.

DRESCHER: And they say, work is, in fact, a salvation for us. The punishment of not being able to work would be worse than anything else because if you have nothing to do, you'll go absolutely crazy.

ABDELFATAH: That's Seymour Drescher. He's a professor of history at the University of Pittsburgh and an expert on de Tocqueville's life. So the Eastern State Penitentiary model, or a version of it, popped up in other American cities. And de Tocqueville visited those prisons as well, documenting their effectiveness for the French government.

DRESCHER: So Tocqueville goes in, and he gives this very, very impressive report.


ALEXIS DE TOCQUEVILLE: Nowhere was this system of imprisonment crowned with the hoped-for success. It never affected the reformation of the prisoners. In order to reform them, they had been submitted to complete isolation. But this absolute...

DRESCHER: What does a prison mean? It means, in fact, the opposite of being a free man.


DE TOCQUEVILLE: It destroys a criminal without intermission and without pity. It does not reform. It kills.

ABDELFATAH: Still, the French government and other European countries began to adopt the Eastern State model.

MCCOOL: I think that Eastern State marks the beginning of a 200-year-old experiment in prisons and penitentiaries in the United States and different experiments on what those prisons and penitentiaries should look like.

ABDELFATAH: Yeah, it's interesting 'cause a lot of the questions I feel like they were asking when they created Eastern State we're still asking ourselves now. Right.

MCCOOL: Sure. What kind of prison works? What does justice mean? - things like that.


NORMAN JOHNSTON: Eastern State is, without a doubt, the most influential prison that was ever built.

ABDELFATAH: Prisons like Eastern State continue to be built in the U.S., Europe and even Latin America throughout the 1800s. But these and other penitentiaries were more than just buildings that house people convicted of crimes. They spread the idea that people who break laws are criminals who need rehabilitation, who have an affliction. And under those terms, prison was the cure. It would bring people back from this altered state of existence through the use of solitary confinement and penance. But those remedies ultimately failed.

MERANZE: And there was a major investigation into the prison. By around the 1870s, it really was not the system that it was originally.

ABDELFATAH: But in some ways, it didn't matter that it failed. The creation of Eastern State and other penitentiaries institutionalized criminalization. In the decades after their creation, prisons became a place where America sent people it deemed undesirable. And it was a vessel for dealing with its deep social and cultural issues. People were in prison for being gay, for being immigrants, and as you'll see in our next story, for being black. This last piece - race - sets the stage for mass incarceration.


ARABLOUEI: You're listening to THROUGHLINE from NPR.


ABDELFATAH: Part 2 - slaves of the state.


ARABLOUEI: This is the music from the 1915 silent film "Birth Of A Nation."


ARABLOUEI: The movie retells the story of the decades after the Civil War from the perspective of the Ku Klux Klan. It paints the Confederacy as victims of Northern aggression, but most importantly for our story, it perpetuates the stereotype of black men as violent and dangerous. Throughout the over-three-hour film, white actors in blackface were shown stealing, committing random acts of violence and attempting to rape white women.

Many people protested the film. It was polarizing, but it was still a hit. The film earned millions of dollars in just a few years, a huge sum at that time. And millions of people saw it. Even President Woodrow Wilson screened the film at the White House. Afterwards, he reportedly said, it's like writing history with lightning. And my only regret is that it is all so terribly true.


ARABLOUEI: A lot of Americans shared Wilson's view of the film - that it was true, that it was history. The film cemented stereotypes of black men that already existed in the country. But there was an ugly fact that was used as justification for those racist ideas - that black people were more likely to be in prison than white people.

And it's worth stopping here for a minute because this idea comes up again and again. More black people are in prison, so black people must be more criminal. It seems logical, but this ignores another fact - that black people were ending up in prison because an entire system was created to target them, a system that was set into motion when slavery ended...


ARABLOUEI: ...After the Union won the Civil War.


UNIDENTIFIED ACTORS: (Unintelligible).


ARABLOUEI: The Civil War was fought to end slavery in the U.S. Hundreds of thousands of people were killed in the pursuit of that goal. After nearly four years of war, in 1865, just months before the Confederacy formally surrendered, Congress passed the 13th Amendment to the Constitution. It formally ended the institution of slavery, or at least that was its intention because embedded right there in the language of the amendment was a loophole. It said no person could be enslaved in the U.S. except...

KHALIL GIBRAN MUHAMMAD: Except for punishment for a crime.

ARABLOUEI: This is...

MUHAMMAD: Khalil Gibran Muhammad.

ARABLOUEI: He's a professor of history at Harvard and the author of "The Condemnation Of Blackness."

MUHAMMAD: And Congress shall have the authority to enforce this act. That's essentially what the 13th Amendment says.

DOUG BLACKMON: That exception to the amendment was an opportunity for white Southerners, in particular, to resurrect new economic and labor systems that relied on the arrest of large numbers of African American men and the return of them to situations that looked extraordinarily like slavery had appeared before the Civil War.

ARABLOUEI: This is Doug Blackmon.

BLACKMON: I'm a filmmaker and author. And I teach remarkable groups of students at Georgia State University in downtown Atlanta.

ARABLOUEI: So after the Civil War, during the period known as Reconstruction, Southern states took advantage of the loophole created by the 13th Amendment and passed laws that would later become known as the black codes. They were basically...

MUHAMMAD: State-level laws that were targeted to the formerly enslaved population.

BLACKMON: And those black codes were explicitly intended to reimpose white control over all African Americans.

MUHAMMAD: That included everything from new vagrancy laws, which essentially criminalized unemployment.

BLACKMON: It became impossible for any African American man anywhere in the South not to be vulnerable to arrest on some spurious or specious or trumped-up allegation.

MUHAMMAD: All of this happens just in the moment when the Ku Klux Klan is born, which happens in 1866.

ARABLOUEI: The impact of the black codes was devastating. Many black men were placed back into servitude through incarceration, except this time, they were slaves of the state.

BLACKMON: It quickly becomes clear to the white radical Republicans in Congress and from the North that this freedom that has been won at the cost of 600,000 American lives in the Civil War is under threat, and that the 13th Amendment has not sufficiently guaranteed a safe and secure place in American society for African Americans.

ARABLOUEI: In response, the federal government passed two amendments to the Constitution. First, the 14th Amendment, which guaranteed equal protection under the law for all citizens, and the 15th Amendment, which guaranteed voting rights. The government also sent Army troops to occupy Southern states and protect black citizens. Under this protection, black people flourished. They opened successful businesses, created civil society and even won Senate and House seats in former Confederate states.

BLACKMON: African American men were voting. They were running for political office. Some had tremendous success in business and in politics - a difficult life, a difficult world, but one in which there was very genuine liberty.

ARABLOUEI: But this moment of prosperity wouldn't last.

BLACKMON: By the end of Reconstruction, which is in the late 1870s, this terrible, dark cloud has begun to set in over black life all over the South.


ARABLOUEI: Southern states began passing new laws to end black economic and political progress. The Jim Crow laws, as they became known, essentially served the same function as the black codes, and in some ways, were even more effective.

BLACKMON: And so it became a crime for a person to walk beside a railroad line. It was a crime to sell the produce of your farm after dark. It was a crime to speak loudly in the company of a white woman. To actually leave the employment of one person and move to another without permission was a crime.

ARABLOUEI: And as a result of all these arrests, the black prison populations in Southern states rose dramatically.

MUHAMMAD: For example, in the state of Alabama in the 1850s, 99% of those counted as prisoners were white. By the 1870s, 85% of those counted as prisoners were black.

BLACKMON: And so prisoners are typically held in county jails - there aren't enough of them. There is a kind of logical solution proposed of that rather than spending the money to build large prisons, simply turn prisoners over to companies and people who need large numbers of laborers. Let them pay the state or county government for the use of the labor of these convicts, and then also bear the expense of imprisoning them and feeding them and taking care of them.

ARABLOUEI: These prisoners were forced to live in labor camps and spend their days working on construction projects - railroads, plantations and mines - in horrific conditions.

BLACKMON: Sometimes there were visitors who would show up at one of these camps where almost no one ever came, and they would find dozens of black men laboring in the fields or in the forest with no clothing on at all in an emaciated state - people with missing arms and legs. And there was a phrase at the time that if someone working in these camps died, that this was no big deal because, quote-unquote, "one dies, get another."

MUHAMMAD: The South was hugely indebted to foreign investors because they'd borrowed money to fight against the Union. They were indebted to America for repayment for sedition in the first place. And they literally had to rebuild their infrastructure. And they began to see huge returns on their convict-leasing investments.

ARABLOUEI: The convict-leasing system affected thousands of black men in the South and further solidified the idea that those convicted of crimes could be used in whatever way the state saw fit. And in 1871, the Supreme Court in Virginia, one of the South's biggest states, ruled...

MUHAMMAD: That it was appropriate and lawful that convicted people could be, quote-unquote, "slaves of the state."


MUHAMMAD: So in a nutshell, mass freedom or emancipation was the moment for enshrining both mass citizenship rights, the actual recognition of black people as citizens of the United States, particularly in the 14th Amendment, and the capacity for mass criminalization. And it was that capacity for mass criminalization that the law allowed for that then took off and changed the trajectory of history.

ARABLOUEI: So if Eastern State and other penitentiaries began the culture of criminality, or seeing lawbreaking as an affliction in need of a cure through imprisonment, then the black codes and Jim Crow laws began a culture of assigning criminality to a particular group of people - African Americans. And as Khalil explained, by the end of the 1890s, many white people viewed the fact that black people were disproportionately imprisoned at higher rates as...

MUHAMMAD: Indisputable evidence of black criminality. It's as if nothing that was going on in the South mattered to the evidence of this prison problem.


ARABLOUEI: Before emancipation, black people were often portrayed in literature as naive and stupid and needing of white guidance. This was a way of justifying slavery. But when black people were no longer enslaved and recognized as citizens, that view started to change.

BLACKMON: Once white Southerners - and for that matter, white Northerners - begin to see huge numbers of genuinely independent black men, sometimes in competition with white men for jobs and opportunities, then the much more popular depiction begins to be that African American men are dangerous and that America is only safe if they are somehow brought back under tight control of white society.

ARABLOUEI: The black criminality stereotype grew from decades of unfair imprisonment in Southern states, but it wasn't just relegated to cultural depictions. By the beginning of the 20th century, black criminality became a part of the newly formed field of social science.

BLACKMON: Ideas have been planted that there's a scientific explanation for not just why one group is white and another group is black, but a whole range of other tendencies and expectations. What is viewed by the early 20th century as the leading science of Western society says that, in fact, black people are different and inferior to white people and that black men are more prone to violence.

MUHAMMAD: And this is the most important way in which Northerners convinced themselves that to describe black people as criminals was not racist - was to say that there wasn't racism in the North. And so if the North, as they argue, was free of racism, the only way you could explain disproportionate crime rates was to say, these black people have a crime problem. And the person who became most popular and perhaps the single authority on the problem of black criminality in the earliest days was a guy from Germany who was an immigrant named Frederick Ludwig Hoffman.


FREDERICK LUDWIG HOFFMAN: With an inordinate rate of mortality, with an excessive degree of immorality, with a greater tendency to crime and pauperism than the whites, the Negro race has also, as shown by the facts just given, a far lower degree of economic activity and inclination towards accumulation of capital and other material wealth.

ARABLOUEI: Frederick Hoffman moved to the United States in 1884. He was a statistician. At some point after arriving in the U.S., he directed his professional efforts to the statistical analysis of black inferiority. In his own words...


HOFFMAN: Only by means of a thorough analysis of all the data that make up the history of the colored race in this country can the true nature of the so-called Negro problem be understood. Being of foreign birth - a German - I was fortunately free from a personal bias, which might have made an impartial treatment on the subject difficult.

MUHAMMAD: He was like the Alexis de Tocqueville of the American crime scene.

ARABLOUEI: His research culminated in the book "The Race Traits And Tendencies Of The American Negro," which was a collection of statistics, charts and wild assertions that black people were just more prone to criminal behavior than other races. Hoffman's work was received mostly with praise. Many saw it as groundbreaking, and it inspired other scholars to investigate black crime as well.

MUHAMMAD: It was like a search for the truth of black inferiority everywhere in the country that just spread like wildfire.

BLACKMON: That justified not just the oppressions that occurred in the South, but also the oppressions and predations that began to occur in the North as black men and their families moved into other parts of the country.

ARABLOUEI: Throughout the rest of the 20th century, Khalil says that a cycle of demonization, enforcement and imprisonment reinforced the notion of black criminality and shaped policy.

MUHAMMAD: We don't have these conversations about the peculiarness (ph) of white men who shoot into large crowds of other people. We describe them as individuals, as lone wolfs. It is only black people that we can categorically - whether you are conservative, moderate or liberal - categorically say, these people do this, this and this. Look at what the numbers say.

ARABLOUEI: Ultimately, Khalil's argument is that after the 13th Amendment, the black codes and Jim Crow laws, a stereotype of black criminality emerged and set the stage for what would happen in the late 20th century - mass incarceration.

MUHAMMAD: If you think about how much we think of the criminal justice system as something that is a response to bad decisions and bad behavior by bad people. I mean, that's sort of how most Americans go to sleep at night thinking that this system makes sense to us. What we learn looking back on this period in American history is that the criminal justice system has always been part of the machinery of politics and economics and culture in America.

ARABLOUEI: And you might think you know what comes next, that mass incarceration becomes a story about the drug war, mandatory minimums, the three-strikes rule. But what's actually driving mass incarceration today? The answer might surprise you.


ABDELFATAH: You're listening to THROUGHLINE from NPR.

ARABLOUEI: Part three, American Prosecutor.

ABDELFATAH: So the way the justice system is usually depicted on TV can be, let's just say, misleading.

JOHN PFAFF: Think of the opening credits of the defining show of American criminal law, right?


STEVEN ZIRNKILTON: (As Narrator) In the criminal justice system, the people are represented by two separate but...

PFAFF: ...But equal branches groups - the police who investigate crimes, and the prosecutors who try them.


ZIRNKILTON: (As Narrator) These are their stories.

ABDELFATAH: The problem is this description is missing some very important parts.

PFAFF: Public defenders, judges, where are they in that opening monologue? The people are not represented by the police and the prosecutors.

ABDELFATAH: This is John Pfaff.

PFAFF: That's a pretty telling cultural moment.

ABDELFATAH: He's a professor at Fordham University and author of the book "Locked In: The True Causes Of Mass Incarceration And How To Achieve Real Reform." In his book, John argues that this is no accident. The attitude captured in the opening monologue of "Law & Order" - which full disclosure is one of my favorite shows - shows just how much emphasis and power we place in the hands of the prosecutor in America. District attorneys can essentially decide if and how to prosecute cases. They recommend prison sentences, and they have the power to offer plea bargains.

EMILY BAZELON: Exactly. The prosecutors have the police. They're the ones who know how an investigation is proceeding and who gather the facts of an investigation. Defense lawyers are really lucky if they have any access to investigators at all.

ABDELFATAH: This is Emily Bazelon.

BAZELON: They are, in all the important ways, overmatched.

ABDELFATAH: She wrote the new book...

BAZELON: "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration."

JED SHUGERMAN: If I asked you who is the most powerful official in America, many people, you know, would first say the president. Or they might talk about a general at the Pentagon. Or they might, if they are really, you know, sort of sophisticated about the economy, they might say the chairperson of the Fed because that person controls interest rates. And my answer to that person is the most powerful person in America is the prosecutor.

ABDELFATAH: This is Jed Shugerman. He's a professor at Fordham University and an expert on the history of prosecutors in America.

BAZELON: Once you see prosecutorial power, once you are alive to it in the criminal justice system, it's everywhere.

ABDELFATAH: But usually, prosecutors aren't the first thing we think of when it comes to mass incarceration.

PFAFF: The first thing we always blame is the war on drugs.

ABDELFATAH: The fact is...

PFAFF: As of today, only about 15% of all people are in prison for drugs.

ABDELFATAH: John says that's because the vast majority of people in prison in the U.S. are in state facilities. Now when people usually talk about drug convictions, they're referring to federal prison numbers, which are higher, but federal prisons only represent a tiny fraction of the overall inmate population. So then you might be thinking it must be non-drug related crimes - everything from fraud to armed robbery to murder - that's gone up and driven mass incarceration. But according to John Pfaff, that's not true either.

PFAFF: Nope. The actual homicide rate now is lower than 1970. And then starting in '91, it starts this long, slow, steady decline. So over the course of the '90s and 2000s, arrests for serious violent and serious property crime dropped by, like, 25%. But the number of people being sent to prison keeps going up and up and up.

ABDELFATAH: That might sound a little confusing, but what John's basically saying is that as crime went down in the 1990s and 2000s, the number of people being sentenced to prison time went up. So what gives? Well, according to John, by the 1990s, a tough-on-crime culture throughout the country resulted in the hiring of more prosecutors in America, a lot more.

PFAFF: Ten-thousand more assistant prosecutors across the country, all right? So if you're the ADA two years out of law school, you needed - you can't just play "Minesweeper" all day, right? You've got to do something. There's always someone you can charge.

ABDELFATAH: In other words, all those new prosecutors receive cases, and that often translates into prison time. So more prosecutors, more prisoners, which means the argument we hear about drug convictions, mandatory minimums and private prisons driving mass incarceration doesn't provide a full picture of the problem.

PFAFF: None of these aspects are wrong. They're just not central in a way that's actually importantly problematic.

SHUGERMAN: Those all might play a small role, but they pale in comparison to the transformation that prosecutors bring.

ABDELFATAH: All of this raises the question, how did prosecutors become so powerful, and how did they develop this role in our justice system? That story goes all the way back to the beginning of the country.


BAZELON: When the United States was founded, prosecutors were not elected. It was actually a kind of part-time, low-status job.

ABDELFATAH: Up until the 19th century, prosecution in America was...

SHUGERMAN: Generally a private matter.

ABDELFATAH: Like, you would have to hire your own lawyer to prosecute someone who'd committed a crime against you.

SHUGERMAN: Victims would bring their own prosecutions. It was private on both sides.

ABDELFATAH: But over time, most states began to appoint public prosecutors. And then there was another twist.

BAZELON: Around the 1830s, prosecutors started to become full-time, and there was a movement in the states to make them more accountable to local voters.

ABDELFATAH: By the beginning of the 20th century, most American states elected prosecutors. And their power grew as the criminal justice system played a more important role in those states.

SHUGERMAN: You start getting more state role of regulating people, you know? So you get prohibition and regulating alcohol. You also get Jim Crow and regulating race in America. That's when the prosecutor starts to become a more powerful official. That's where you start seeing people start as prosecutors for a few years, and then they rapidly become upwardly mobile politicians.


SHUGERMAN: But the way that I tried to figure this out was I looked at all of the presidential and vice presidential nominees in American history.

ABDELFATAH: And Jed found the political ambitions of former prosecutors took a real turn in the 1940s when...

SHUGERMAN: The Republican Party doubles down for both president and vice president.


UNIDENTIFIED PERSON #4: This convention has dispensed with the calling of the role. And I hereby declare that Governor Warren has been duly nominated for the position of vice president of the United States on the Republican ticket.


UNIDENTIFIED PERSON #5: Mrs. Warren and daughters lead the convention hall to its feet in tribute to the 57-year-old Californian who, like Dewey, made history as district attorney and then twice was chosen as state's chief executive.

SHUGERMAN: The turning point is the 1944 nomination. Republicans nominate Thomas Dewey, who made his name as state and federal prosecutor in New York. The term we use now, gangbuster, was coined for this prosecutor, Thomas Dewey. And he rides that fame of being the gangbuster against organized crime and against organized labor to becoming the governor of New York. And Earl Warren, his background is being an anti-Latino, anti-Asian prosecutor in California who is maybe the most important architect of the Japanese internment during World War II.

ABDELFATAH: The two former prosecutors, Dewey and Warren, went on to lose that election, but the shift was clear. Being a prosecutor was a natural start to a career in politics, and this wasn't just true for Republicans.

SHUGERMAN: The Democrats aren't going to be out-prosecutered (ph). So what happens is the Kennedy family...

ABDELFATAH: The biggest family in Democratic politics had two sons who both became prosecutors, Robert and Ted.

SHUGERMAN: ...The Kennedy family reflects how the Democratic Party converges with the Republican Party in both being tough on crime. And that is part of the turning point in American history to people seeing career prosecutors making their name as being tough on crime, often using ethnicity and race to crack down on marginalized groups, becoming famous, and then being able to run for president, vice president or even becoming chief justice.

ABDELFATAH: The obvious next question - why is it so politically beneficial for prosecutors to be tough on crime? Remember; they have to respond to voter demands. And in many places around the country...

BAZELON: They have been beating a law-and-order drum because they have assumed - and to a large degree, they've been correct - that voters have wanted a tough-on-crime posture from district attorneys.

ABDELFATAH: But why do voters want a tough-on-crime posture? Well, this is where things get a little more strange because crime in America isn't actually that widespread.

PFAFF: Crime is profoundly concentrated. There are these studies that have shown that, you know, over year after year after year in various cities, like, half of all crime in a city will take place in about 10% of all city blocks, and all crime takes place in less than half.

ABDELFATAH: In other words, the great majority of Americans never experience crime.

PFAFF: They don't feel it. They just experience it second-hand, third-hand through the news.

ABDELFATAH: Chicago is a good example.

PFAFF: Chicago is part of Cook County. Half of Cook County lives in Chicago. Half of Cook County lives outside Chicago. And other cities are even more out of whack. So you have this county that's electing the DA. And so it's going to mean the fact that these suburban whites are going to have a very large say in who the prosecutor is, but they don't experience what the prosecutor does. But that DA's job is then to enforce law in the urban area where those suburbanites don't really go.

ABDELFATAH: So even if crime isn't a direct problem that affects voters, their perception of crime, which is often driven by media and stereotypes, often influence them to vote for candidates that are tough on crime.

SHUGERMAN: Fear of crime drives both policy changes that we label the war on drugs. And it also is the politics that drives prosecutors to be harsher and to prosecute more people and put more people behind bars.

ABDELFATAH: In other words, DAs responding to voters' demands to be tough on crime are often tougher on crime. And prosecutors generally view their job as trying to get justice for victims of crime. So naturally, there's always a fear of letting criminals slip through the cracks of the justice system.

SHUGERMAN: Prosecutors are rarely defeated, but part of the reason why they are rarely defeated is because so many prosecutors understood that the way to get defeated was to decline to prosecute someone. And then that person goes out and commits a rape or commits a murder, and then everyone in hindsight second-guesses that prosecutor and says - and blames that prosecutor for not having been tough on crime. Hindsight's 20/20.

BAZELON: High-profile, scary cases still drive criminal justice policy way too often. So in the response to my book, people who disagree with me are tweeting at me, like, one terrible murder that someone commits. It's always by a black person 'cause then you get a black face on the screen, and that's supposed to scare white people. That's a totally irrational way to think about it, but it doesn't matter because if you're succeeding with the fearmongering by giving a lot of attention to one bad thing that happens, then you're kind of winning the psychological war or the culture war.

ADAM FOSS: When we first got to the job, my understanding of what the options were for us as prosecutors was basically, you know, prison or nothing.

ABDELFATAH: This is Adam Foss.

FOSS: I'm the executive director and founder of an organization called Prosecutor Impact.

ABDELFATAH: Adam also spent years as a prosecutor in Boston. And we wanted to get his take on what it was like to be a prosecutor.

FOSS: While the stated metric system was sort of these nebulous terms around being fair and doing justice and serving victims, the concrete metrics that particularly young people were looking to as young prosecutors was getting cases to trial, winning them and getting out of district court and the superior court as quickly as possible.

ABDELFATAH: Some prosecutors have realized that if this is a problem they helped create, they can also help address it. These progressive prosecutors are part of a new bipartisan trend to combat mass incarceration.


UNIDENTIFIED PERSON #1: In the past few years, a wave of reform-minded district attorneys has been elected across the country.

UNIDENTIFIED PERSON #2: There is, without question, a national movement towards having progressive prosecutors all over the country.

UNIDENTIFIED PERSON #3: Around the country, a number of progressive prosecutors saying that they want to play an active role in ending mass incarceration.

FOSS: And if prosecutors wanted to, they could identify and acknowledge that it doesn't make sense to charge all of those people with all those crimes because we get nothing for it. It costs a lot of money, and there are other, better things that we can do in the community to resolve the problems that we're trying to with the criminal justice system.

ABDELFATAH: There are prosecutors in cities like Philadelphia, San Francisco, Boston and a bunch of others that are leading efforts to end mass incarceration. They've refused to prosecute certain drug crimes, pushed for reforms to the mandatory minimum laws and even helped advocate for the First Step Act, a bill passed by Congress that allowed some prisoners to get early release from federal prisons. All of this has contributed to the overall prison population dropping since 2010. But Adam Foss says, let's not kid ourselves.

FOSS: We can all take a victory lap if we want to, but we have to look around and understand that our prison numbers are still the worst in the world by exponence (ph). We have not reduced the prison population all that much - I mean, maybe single-digit percentage.

ABDELFATAH: And then Adam brought things back to a point Khalil Gibran Muhammad made about culture - that ultimately, policy won't be the way out of mass incarceration as long as the underlying culture in America criminalizes African Americans.

FOSS: I don't think there's a way out of it without reconciling our history, the truths about our history, the truths about our biases and our prejudices. Like, we do not get to the end of mass incarceration without dealing with those things.


ABDELFATAH: From the moment the first penitentiaries were built in the 1800s, prisons became the vessel for American anxieties about crime and the people who commit crime. As the fear of African Americans spread at the end of the Civil War, imprisonment became a weapon for controlling their entire community. And as the prosecutor gained power in America, their job essentially became to enforce norms and attitudes. All of this points to the real source of the problem.

SHUGERMAN: The - look. At the bottom line is - this is really a story about culture and politics. Like, if I made sure to change any one official or any one institution or give more money, hire more defense counsel and more public defenders' offices - if the public perceived that that was putting a thumb on the scale in favor of defendants, especially defendants of color - it's a little bit like water. Like, if you dam up water in one place by making a set of institutional changes, the water of public opinion will find another way to flow towards tough on crime.

BAZELON: We have to look at our own cultural responses to crime. There's a racial component to this. Often, white voters see black people committing crime as, like, the scary thing that they have to protect themselves from. And politicians have been really successful in capitalizing on this and putting - pumping more and more money into law enforcement, into prison.

SHUGERMAN: We can talk about how to change institutions, but if we don't change the culture, if we don't change people's understanding by educating them, then we're not going to have long-term cultural change.


ABDELFATAH: That's it for this week's show. I'm Rund Abdelfatah.

ARABLOUEI: I'm Ramtin Arablouei. And you've been listening to THROUGHLINE from NPR.

ABDELFATAH: This episode was produced by me...

ARABLOUEI: And me and...





N'JERI EATON, BYLINE: (Laughter) OK. Smizing and somber - N'jeri Eaton.

ABDELFATAH: Julia Chance and Susie Cummings fact-checked this episode.

ARABLOUEI: Thank you to Renaud Tahon and Thomas Jaensch for their voice-over work.

ABDELFATAH: And a special thanks to Anya Grundmann. Our music was composed by Ramtin and his band Drop Electric.

ARABLOUEI: If you like something you heard or you have an idea for an episode, please write us at or hit us up on Twitter @ThroughlineNPR.

ABDELFATAH: Thanks for listening.

Copyright © 2019 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.