Criminal Justice

One of the most interesting people I met at the conference I participated in last spring in Dallas was Rafael Mangual, a lawyer who is now a fellow of  the Manhattan Institute specializing in criminal justice issues.  He has recently published his book, Criminal [In]Justice: What the Push for Decarceration and Depolicing Gets Wrong and Who it Hurts Most.  I have heard interviews he gave about the book to both Coleman Hughes and Glenn Loury and a debate he had with Lara Bazelon that is available on Bari Weiss's podcast.  That debate is particularly notable insofar as it matches two very impressive people who are living in different universes on the issue that they care about the most.  Both of them expressed appreciation for the opportunity to discuss that issue in a calm and reasonable manner, and we desperately need more people like them on both sides.

That issue, fundamentally, is this:  does the United States incarcerate too many people--many of whom have done nothing very serious--and does it need not only to stop incarcerating so many, but also to adopt alternative methods of dealing with crime?  The "yes" answer is now mainstream among liberals and in the mainstream media, illustrated this very week by an op-ed in the New York Times.  But in his concise and well-argued book, Mangual argues that the correct answers are no and no, while making a number of very important points about the problem of crime in the US.  The current push to send fewer people to jail, to abolish cash bail, to cut back on police and policing,  and to ignore many offenses, he argues, has already led to significant increases in violent crime that inflict great harm on minority populations.  I am going to summarize his argument here, adding a few observations of my own.

To begin with, Mangual suggests, in effect, that we should stop thinking in terms of a national crime problem.  We are not one nation with respect to crime, especially violent crime.  Most of our communities are extremely safe, but some neighborhoods are extraordinarily dangerous.  We all know that crime is much more common in inner cities, but I did not realize how concentrated crime is even within those areas.  Thus, Chicago in 2019 saw 492 homicides, nearly 60 percent of the total within the state of Illinois.  But in addition,  53 percent of those 492 homicides took place in just 10 Chicago neighborhoods that included just 15.6 percent of the city's population, while there were only 11 homicides--2 percent of the city total--in 28 other neighborhoods with 25.4 percent of the city's population.  13 of those 28 safe neighborhoods had large nonwhite majorities.  The situation in New York city and other cities is very similar.  Mangual did not attempt to calculate what total percentage of Americans that live in safe neighborhoods, or to provide that data broken down by race, but I got the impression that the majority of every race in America probably lives in pretty safe areas.

That brings me to a related point about race and incarceration.  Incarceration rates are indeed highest among black Americans, with Hispanics second, whites third, and Asians almost certainly at the bottom.  (They are not included in  many tables because their sample is so small.)  But what exactly does this mean?  A handy table that I found shows that 6.7 percent of black men over 18 are incarcerated, about 3 percent of Hispanic men over 18, and about 1 percent of white men over 18.  One could write, based on those figures, that black men are seven times more likely to be incarcerated than white men, which would strike many of us as a very alarming statistic and some of us as clear proof of "systemic racism."  But one could also write that while 99 percent of white men over 18 are not in jail, 93.3 percent of black men (and 97 percent of Hispanic men) are not in jail either, and that, to me at least, gives a significantly different idea of the scale of the problem and its impact on various communities.  You may be thinking that it might be more useful to know what percentage of this various groups are or have ever been incarcerated, and I agree.  I have found a 1997 paper showing that 4.4 percent of white men, 16 percent of Hispanic men, and 28.5 percent of black men--which I agree is an alarmingly high figure--would go to prison at some time or another in their lives, but incarceration rates have fallen significantly in the last 25 years, along with crime rates, and I don't know what the figures are now.  We can surely say that the vast majority of men of all races appear to be law-abiding citizens, and although female incarceration rates have been rising they are still much, much lower than male. 

The United States does however have a much higher incarceration rate than any other advanced industrial democracy. It has now become conventional wisdom in some sectors of America that this is because so many people--largely minority men--go to prison in the United States for relatively minor drug offenses or other non-violent crimes.  (Interestingly enough, Mangual never mentions The New Jim Crow by Michelle Alexander, which made this argument most bluntly.  When I looked at that book myself I found that it was rather short on systematic data.)  Mangual makes a truly overwhelming case that that is not true.  As of December 31, 2018, 88 percent of US inmates were in state prisons, and more than 60 percent of them were there for either violent crimes (55.5 percent) or weapons offenses (4.6 percent.)  Only 14.1 percent of them were convicted of drug crimes and most of those were convicted of trafficking, not simple possession. Mangual also points out that many of those officially imprisoned for low-level drug offenses were actually arrested for something much worse, and plea-bargained their case down to a simple possession charge.  (I would have appreciated a breakdown of the other 26 percent but Mangual didn't give it.)  Nor is that all.  The median number of prior arrests for most state prisoners was about 8, and the median number of prior convictions was about 4.  Not only does a person usually have to do something pretty serious to wind up in prison in the United States, it seems that they usually have to establish a record as an habitual offender.     He also presents data to the effect that most inmates--even rapists and murderers--are paroled well before their sentences are over.  It occurs to me that I frequently read news stories about prisoners who have been trying to get their parole for decades, but these--however alarming they  may be as individual cases--are evidently the exception, not the rule.  And sadly, a relatively recent study of prisoners released in 2008, 81.9 percent of them subsequently returned to prison for at least one subsequent offense, and half of them committed violent offenses. The simple reason that Americans find themselves in prison so much more frequently than residents of European nations is that they commit, on the average, far more crimes.

This broad picture of crime and punishment in the United States is the most important thing  I drew from this relatively short book, but Mangual makes many other important arguments about individual points as well.  He questions the recent movement against cash bail--most notably in the state of New York--on the documented grounds that it has allowed further crimes by repeat offenders while they are awaiting trial.  Taking on the popular argument that incarceration breaks up too many families, he cites studies showing that children are better off with a criminal parent in prison than in the home.  Regarding police shootings, he makes several simple points.  The 1000 police killings (which are evidently a subset of about 3000 police shootings) every year compare to 10 million police arrests every year, which are in turn a fraction of total police contacts with the general population.  A detailed study showed that only 3 percent of all those contacts even included a threat of force by the police. Of the approximately 1000 police shootings documented every year (with extraordinary consistency) by the Washington Post, more than 93 percent took the life of an armed suspect.  While cases like George Floyd, Eric Garner, Tamir Rice and Philandro Castile are  horrifying, they are anything but typical.  As John McWhorter and others have also pointed out, there are white victims of police shootings who were just as innocent as any of those, too.  And while the minority of victims of police shootings who are black [sic] does represent a larger proportion of the black population than the white victims do of the white one, the reason is simple.  These shootings usually take place during attempted arrests, and these are more common for black people because police spend much more of their time--as they should--in high crime neighborhoods that tend to be black.  And that leads me back to the point that I began with.

It is critical to keep in mind that while "high crime neighborhoods tend to be black," as I just wrote, that does not mean that black neighborhoods tend to be high-crime neighborhoods.  I already presented the data on Chicago--one of the most violent cities in the country--showing that most of its black and Hispanic neighborhoods seem to be quite safe.  Unfortunately two very different groups of Americans seem to want to miss this point.  We have bigots who still want to associate all black people with criminals, but we also have many successful, law-abiding black citizens, led by academics and journalists, who insist that all black people--not just a relatively small but extremely violent minority--are suffering from the injustices of the criminal justice system.  

I have avoided perhaps the biggest question of all--why does the United States have so  much more violent crime than other advanced nations?  Mangual doesn't really try to answer that question either, but he makes one important argument: that there is no correlation between poverty rates and crime.  Crime did fall substantially in the United States from about 1995 to 2020, when homicide, in particular, began to rise again.  Mangual makes clear that he believes that it fell because of the much-maligned 1994 federal crime bill--which, he points out, was supported at the time by the vast majority of the Congressional black caucus whose constituents were being devastated by the crack epidemic and the violence that accompanied it--and anticrime measures in various states.  Now, the 20-year drop has produced calls that we are too hard on crime and pressure to reduce policing and incarceration, leading to the election of "progressive prosecutors" in cities including San Francisco, Philadelphia, and Boston.  . That, he believes, has already led to a reversal of the positive trend--and to the recall of one of those prosecutors in San Francisco, I might add.  

Mangual includes a long discussion of stop, question and frisk procedures--his term for them--that turns in part on his own memories of his youth, when he and his friends, while not dangerous criminals, behaved in ways to suggest to passersby that they might be.  Meanwhile, he returns again and again to his basic point.  He regards incapacitation, not deterrence or retribution, as the main reason to put people in jail--that is, taking their capacity to commit crimes against the public away.  And this is necessary above all, he thinks, to protect the innocent citizens of high-crime neighborhoods.  He does ot address the increasingly common activist claims that "noncarceral" conflict resolution or compensatory justice might replace incarceration, even in cases of violent crime.

I do believe that we could do a lot to make prisons more humane.  Jimmy Hoffa after his own term in federal prison became an advocate for prison reform, and I saw him on television arguing with typical force that prisoners should be segregated by offense, by race, and by size to reduce their abuse by one another.  I also know that there are numbers of completely innocent people in prison and that we would  benefit if we could make it impossible to convict an accused person based on the identification of an eyewitness that did not know that person--a form of evidence that has proven worse than useless again and again.  The exoneration of the Central Park Five showed how easily police can sometimes induce a false confession.  Such evidence convicted Yutico Briley, a client of Lara Bazelon's, whose release she eventually secured.  On the other hand, Ms. Bazelon in an interview with Glenn Loury frankly reported not only that Yutico was a drug dealer, but also that his father, who had also been imprisoned, had said at the time of his arrest and conviction that some prison time might do him some good in the long run.  That suggests to me that in this case, and probably others as well, both Bazelon and Mangual are right.  On the one hand, Utico Briley went to prison with a very long sentence for an armed robbery he didn't commit; on the other hand, had he not, he very likely would have wound up in prison for something else that he did do.  On the whole, I put down Mangual's book convinced that we truly do have a serious, if highly localized, crime problem, and that as long as we do we will have to segregate violent criminals from our society to keep the rest of us safe.