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Conversations with Coleman
America's Failed Criminal Justice Experiment with Rafael Mangual (S3 Ep.27)
01:40:44
My guest today is Rafael Mangual. Rafael is a fellow at the Manhattan Institute and Head of Research at their policing and public safety initiative. His new book is called "Criminal (In)Justice: What the Push for Decarceration and Depolicing Gets Wrong and Who It Hurts Most". In this episode, we discuss the nationwide push for defunding and de-policing starting in the summer of 2020. We talk about the so-called root causes of crime. We talk about Ava DuVernay's documentary "13th" and Michelle Alexander's book "The New Jim Crow". We discuss the causes of mass incarceration. We talk about cash bail and bail reform. We also go on to talk about legalizing weed and much more. -Get 20% Off and Free Shipping with the code [20COLEMAN] at Manscaped.com. That’s 20% off with free shipping at manscaped.com and use code [20COLEMAN]. -Sign up through wren.co/coleman to make a difference in the climate crisis, and Wren will plant 10 extra trees in your name! -Sign up today at butcherbox.com/COL...
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Welcome to another episode of Conversations with Coleman. If you're hearing this, then you're on the public feed, which means you'll get episodes a week after they come out and you'll hear advertisements. You can get access to the subscriber feed by going to ColemanHughes.org and becoming a supporter. This means you'll have access to episodes a week early, you'll never hear ads, and you'll get access to bonus Q and A episodes. You can also support me by liking and subscribing on YouTube and sharing the show with friends and family. As always, thank you so much for your support. Welcome to another episode of Conversations with Coleman. My guest today is Rafael Mangual. Rafael is a fellow at the Manhattan Institute and head of research at their policing and Public safety initiative. His new book is called Criminal what the Push for Decarceration and De Policing Gets Wrong and who It Hurts Most. Rafael and I discuss the nationwide push for defunding and depolicing starting in the summer of 2020. We talk about the so called root causes of crime. We talk about Ava DuVernay's documentary the Thirteenth and Michelle Alexander's book the New Jim Crow. We talk about the causes of mass incarceration. We talk about cash, bail and bail reform. We talk about legalizing weed and much more. So without further ado, Rafael Mangual. Okay, Ralph Mangual, thanks so much for coming on my show.
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A
Thank you so much for having me. It's a real pleasure to be on you.
- [02:04]
B
Yes. So before we get into the book, I just want to frame the conversation a bit. Two years ago at this time in the summer 2020, we were in the midst of protests, riots in every major city. And all of it was connected to very strong calls to defund the police, to demilitarize the police, to abolish and dismantle police forces, abolish prisons, get rid of qualified immunity. And people like you and me, and I was at Manhattan Institute at the time where you are now, people like you and me were saying, okay, hold the phone. These proposed solutions are actually bad and are likely to hurt poor people, black people, Hispanic people, inner city residents the most. And my perception of that moment is that we were, you know, our voices were mostly ignored in that conversation. And now it's two years later, the dust has settled. And as I learned from your book, which is called Criminal what the Push for Decarceration and De Policing Gets Wrong and who It Hurts Most. So what I learned from your book is that 2020 represented the largest one year spike in homicide in either in all of American history or in recent recorded history. And you can clarify that for me in a second. But. So the dust has settled and it's. And crime is the worst it's ever been in my adult lifetime as a New Yorker. Last week, before I started reading your book, just by coincidence, I tried to buy Pepper Spray online because I'm a musician and I. I've always been one for New York City nightlife ever since I moved here in 2014. And there are neighborhoods that I've been hanging out at, you know, at 1am till the weekend on, you know, at any point in the last 10 years that now literally look like the zombie apocalypse. And you know, what, what in 2015 would have been, you know, one beggar asking me for a couple dollars. And I felt no fear because there was no threat. And I either choose to give or I don't. That's now become just like a stream of people that walk the line between beggars and muggers, which is like someone can ask for your money and then when you say no, demand it, right? And so I felt, you know, a neighborhood like Greenwich Village. I feel actual fear walking through now late at night, especially on like a weeknight when I might be playing a gig, you know. You know, all that to say this is happening in cities all across the country. And it's very tempting to see it as a logical consequence of all the policies that were pushed in the revolutionary year of 2020. So before we get into all of this stuff, I just want to ask you a little about your background. You're from New York City. I learned from the book that your dad was a cop. And so talk a little bit about your upbringing and how, if at all, it led you to be interested in crime, policing and incarceration.
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A
Yeah, I was a kind of regular kid, born and raised in Brooklyn. Like you said, my dad was a cop. So as soon as I was old enough to kind of be cognizant of what was going on in my life, I understood the significance of that and I was really proud of it as a kid. You know, it was something I got asked about by my friends, you know, like, what's it like with your dad being a cop? Do you ever get to see his gun? You know, does he carry a badge? And, you know, you know, and at the time, this was, you know, I was born in 1986, so this is early 90s New York City, mid 90s New York City. As I got older and it's, you know, there's this sense that crime is just sort of part of everyday life. It's something that you have to accept. And so members of the NYPD were kind of viewed as like soldiers in a way. Like, you know, these guys are definitely going to war. Like, they're dealing with the worst of the worst in a place that's notorious for this kind of stuff. And, you know, you had just a lot of terrible stories on the news. There was just kind of this real palpable sort of sense that things were always on edge and could go wrong, you know, wherever you were, especially, you know, in Brooklyn. And I lived in a pretty nice part of Brooklyn. I mean, it's very nice now, certainly much nicer than it was back then. But, you know, compared to, like, neighborhoods like East New York or Brownsville, you know, the part of what I called Flatbush back then, but I think they call it Kensington now, you know, it was still pretty calm. You kind of had to cross Coney Island Avenue before things started to get hairy. And, you know, so it was just something that I was aware of. And I was really proud of the fact that my dad was a cop. And I think that was the sort of seedling for my interest in this topic as I got older. But, you know, also growing up in Brooklyn, I grew up in hip hop culture and listening to Biggie Smalls and Jay Z and, you know, that was always kind of a big part of my life as I got older and sort of set up my own identity. And. And when we moved out of Brooklyn to Long island, that was a big sort of culture shock. You know, I went from kind of being in an all, you know, Latino and black neighborhood and school to going to an all white school. And first time I dealt with racism and, you know, so that was also around the time where my dad and I kind of started to clash and kind of fast forward a little bit. I had kind of had these sort of two competing things in my life where, you know, I had a dad who was, you know, in law enforcement. It was an institution I respected, but I kind of grew up with hip hop in my life and a lot of the conflicting messages that sort of reside within that subculture and then as well had some friends who were on the wrong side of law. And as I got older, I felt more and more, I think, in sort of undergirding need to reconcile those things or choose a side, so to speak. And when I was a sophomore in college, I was in sociology class and we Had a guest speaker come in and he gave a, he was an ex con and he gave a talk about Rockefeller drug laws under which he was convicted. And sort of more of a diatribe really about how the NYPD was racist and the system was rigged. And you know, I just remember viscerally kind of pulling back from that as a 19 year old and thinking like, this isn't exactly right. Like, you know, I know guys like him, you know, he knew what he was doing, he knew what risks he was taking. And I found myself for the first time feeling like I had a desire to engage intellectually with my peers that hadn't existed before. I was an athlete in high school, didn't apply to college, got to college because I played baseball. And that was kind of the start of this journey. And I came across City Journal, discovered George Kelling and James Q. Wilson and Charles Murray, who back then was doing a lot of criminology work. And you know, I just kind of dove in and over the years really, you know, sort of develop a deep appreciation for this topic. And from about the time I was 21 until, you know, I started working at the Manhattan Institute, in the back of my head was like, hey, how do I get my career to this point? I really want to do this kind of journalism. And it worked out.
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So let's get into, let's just dive right into the topic. Many people take it as obvious that the root causes of crime are poverty or else inequality or structural racism. And the reason people believe this is pretty straightforward. If you look who commits crime, right? Overwhelmingly, people that commit crime come from poor communities. Therefore a simple correlational logic would suggest that poverty is causing crime. And what's more, when you look at someone who robs a liquor store, it's never wealthy people robbing a liquor store, right? It's someone that could stand to gain. Someone for whom, you know, $500 in a cash register could really mean a lot, right? Not someone who works on Wall Street. Yet you argue in your book, and I agree with you, that poverty is not the root cause of crime, nor is inequality. So can you explain how you arrive at that counterintuitive conclusion?
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A
Yeah, I mean, well, it seems counterintuitive at the surface, but I think that once you kind of dig in, it becomes clear why those explanations are insufficient. I mean, for one thing, the vast majority of poor people are law abiding, right? I think it's when people kind of oversimplify this and make the simplistic claim that crime is almost entirely a Function of poverty, even violent crime. I think it's to make that argument is to malign members of communities who are struggling financially because the vast majority of them are good. And so I think that's a starting point, right? Like, the vast majority of poor people are not criminals. So, yes, a lot of criminals are poor, but what we don't know is, like, which way the causation works runs. Right. It's entirely possible, and I think, indeed true, that the sort of characteristics, sort of antisocial disposition that leads one down a life of crime are also associated with a lack of success, lack of economic success. That would also be correlated with poverty. And I think that that starts to become clear when you try to find a relationship between some of these socioeconomic indicators and violence, and it becomes really hard. So New York City, for example, if you just look at the year before we peaked in homicides in 1990, we had 2,262 homicides. So look at 1989. The poverty rate that year in New York City was actually slightly lower than it was in 2016. Reason I picked 2016 is because that's the year before we hit our valley. Number of homicides at 292. So we go from 1990 to 2017. Poverty basically doesn't move, but moves a little bit in the wrong direction, which is to say it goes up slightly. And yet we have this massive, massive decline in homicides.
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B
And by massive, you're talking about like 90% decline.
- [11:41]
A
Exactly. I mean huge, huge. And it's not just homicides, of course. Like lots of other crimes, robbery, aggravated assault, rape, all declined. What that tells me is that to whatever degree poverty might be associated with crime, it is not anywhere close to being an immediate cause of violence. Another thing is that it's not at all clear that people are better off financially when they engage in violent crime, which is kind of the focus of the book. You often watch videos of robberies. There was one that went viral that took place in Lincoln park, which is a really nice neighborhood in Chicago. There was a guy who was getting robbed, and they asked him for a cell phone and they want to unlock the iPhone. So they're making him give the code. He doesn't want to give the code. They beat him up. Eventually he gives the code, and then they shoot him afterward before they take off. They didn't have to shoot him. They got his proper. Gave the code. You know, they had already beat him up. There was nothing financially to be gained. And you start to see a lot of that. And the more you dig into it, the more you kind of understand that there's something else at play.
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B
Was it that they didn't want to leave a witness in this case or.
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No, he. No, he. I believe he survived.
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Oh, I see.
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I think it had more to do with just the fact that it was kind of a perceived slight, like, hey, you gave us a hard time. Hold that. You know, this. This is for not cooperating. This is for the sign of disrespect. And when I talk to police officers and, you know, a lot of rough neighborhoods and working on gang task forces in cities and stuff, they tell me a lot of the same thing which is at the root of a lot of homicides and aggravated assaults are actually these notions of perceived disrespect. And, you know, I've heard this a lot throughout my career, and I remember hearing, you know, my father talk about it as a police detective, you know, saying, like, yeah, these guys ended up in a shooting because, you know, one guy looked at him and he didn't like that. And so they got in an argument. The next thing you know, people take the guns out, and it's like, you know, I had a cop in Chicago tell me, like, you can actually track and predict some of these things just based on social media posts where you'll have, you know, some gang member go into one neighborhood, make a derogatory video, you know, saying, like, hey, where are you guys at? You know, I'm on your block. Post it up on Instagram, and then that gang will feel the need to retaliate. And then this, right, that simple act, you know, creates the cycle of just, you know, unimaginable violence. So, you know, the sort of lack of connection between financial gain and a lot of the sort of violent crime categories that I'm talking about book is just another reason to be skeptical of the idea that poverty's at the root of this, but also inequality, unemployment, none of these measures really fit well with violence patterns, right? When you look at the Great Recession, unemployment rate nearly doubled in the country. Homicide rate declined by 15% between 2007 and 2010. Same thing in New York City, which was hit particularly hard by the Great Recession. The Great Depression, violent crime didn't go up. It went up a lot in the 1920s, which is one of the most prosperous, you know, periods in American history. And so there's a lot going on. The other reason I really wanted to take on this claim, in addition to the fact that I think it's wrong, is that I think it's there's. It saps the sense of urgency that I think needs to be brought to this issue. You know, I was, I was having a conversation, we were talking earlier, before we started recording. I had this conversation with Trevor Noah on his show recently. And at one point during our exchange, you know, he mentioned sort of social spending and how that might be able to help alleviate some of the conditions that lead to crime. And I, you know, kind of push back. And I mentioned this, this data point out of Chicago, where it was like over a two year period, there was a massive increase in per pupil spending in the public school system. And that increase actually coincided with an increase in violent crime. And the point I was trying to make is like, look, there's not a perfect fit between these measures of violence. And then his response was really interesting. He was saying, like, well, you know, if you're trying to build a really good, you know, professional sports team, you kind of start years out from when you want to win a championship, you develop your farm system, you draft. You know, it takes a while for, you know, those efforts to bear fruit. It's like, fair point. But this ignores the fact that people are dying now, you know, and so the idea that we have to take this sort of long term view of like, hey, let's make this really huge concerted effort today with the hopes and no guarantee whatsoever that we can solve one of society's most intractable problems that we've yet to solve that any society's ever solved in the history of humankind. You know, into 20 years. That's hard for me to swallow. When you have cities like Chicago flirting with their 1990s highs and homicides. When you have cities like Baltimore, where, you know, almost entirely on the north side, they set a brand new homicide record all time for their entire city. Baltimore did that. Sorry, that was Philly. Baltimore did that in 2019. Louisville has done that like three or four times in the recent, in the last five years. You know, Indianapolis, you know, there needs to be a bigger sense of urgency. And I think that the socioeconomic root cause argument undermines that urgency.
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B
Yeah, I think this is one of the most commonly held opinions, especially by people on the left, that has almost no empirical backing in the sense that just look at any correlation graph over time or these major events where lots of people become poorer. Like you said, the Great Depression, the Great Recession, the great crime decline of the 90s, and the arrows are almost always going in the wrong direction. And at the same time, there are places in media and culture where people are telling us exactly why they commit crime. So I know, I know you're a big fan of rap. I'm a big fan of rap as well. If you listen to rappers, especially rappers who advertise their criminality, someone like 21 Savage, who really does come from a criminal background, and you just listen to their songs and explanations of why they killed somebody. Right. Usually the explanations are going to be related to personal beefs, turf warfare, the kind of thing that you would see in an old western movie where guys with hats on horses pull their guns out because you said something about his wife or whatever. You know, like most of what you're going to see is a kind of machismo that is very recognizable. You could say defect in the male character. Yeah, that has a lot to do with how people are conditioned to behave and what people think is normal, given where they come from, which is to say culture, more than it has to do with socioeconomic indicators or poverty.
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A
I think that's exactly right. And, you know, this is a point that I try to bring out through references to pop culture, including hip hop music in the book. But, yeah, it's one of the reasons why, you know, there are demographic groups in jurisdictions across the country that are experiencing poverty at very elevated rates, even compared to some of the demographic groups that you see have high levels of involvement in serious violent crime, both as victims and perpetrators, and yet they have very, very low levels of violent crime. So, like, think about the Asian community in New York City, which experiences poverty at a significantly higher rate than the black community in New York City, but has a much, much lower rate of involvement in violent criminality, again as both victims and perpetrators. And I think culture is certainly a plausible explanation for that. I mean, you know, there. It matters if you grow up in a place in which violence is elevated as a legitimate means of acquiring respect, a legitimate means of resolving disputes. I mean, I remember, you know, being in high school and spending time with a friend of mine up in Washington Heights, and it was just like. It was very nonchalant. That, like, oh, you guys have beef, you have to fight. And there was. There's this concept called, you know, on site. You'd say, like, that means, like, okay, someone. It got back to you. Like, it's on site with so and so. That means the next time you see each other, no matter where you are, no matter whether you can be in the middle of a McDonald's, you can be at school, you can. The next time you cross paths, punches are thrown, no words are set and that was just kind of accepted as the norm. But that was on the weekend. Then I'd go back to Long island for school, you know, Monday through Friday. And it was a very, you know, none of the kids I went to high school thought like that. And so, yeah, I think culture is definitely a big part of it. It makes people uncomfortable. But I don't see another explanation that is as plausible.
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B
Yeah, so there's this really interesting paper that I came across a few months ago which basically looked at first time fathers and looked at fathers as a cohort and asked whether they commit less crime when their girlfriends or wives become pregnant. Very interesting study design. And I'll link to in the description, it's called family formation and crime paper Family formation and crime. And it found that when that crime rates fell 25 or 30% when people's girlfriends mostly in this case, get pregnant and stays that low after the kid is born. And so, I mean, it's a very interesting result because it says something about the motivations of people who commit crime and how those motivations can be tugged on by circumstances. Like a 30% drop is huge. That's the kind of drop, if any policing tactic caused that it would be, you know, it should be headline news.
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A
It's also at odds with the socioeconomic argument. Right. Because having a kid is expensive.
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B
I know that's right. That would make you maybe rob more liquor stores to afford the diapers. Right. If it's all about getting cash or about alleviating poverty.
- [21:02]
A
Yeah, that's the first thing that came to my mind as you were telling me. That's a fascinating finding. Do they say anything about what the mechanisms are or do they have a suspicion about.
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B
I'm not sure. Yeah, I'm not sure. I have to look into the paper. I'll send it to you. But yeah, but the other thing, if you ask really what this is, it seems to me that the knowledge that your girlfriend is pregnant is a psychological reason to think long term as a person. Right. Like if you're at all normal, then the fact that you're about to have a baby often leads people to reevaluate their priorities and to think longer term and to think less selfishly. And that would seem to me to be the most plausible reason why you would get a crime drop as a result of just learning that your girlfriend is pregnant. And that's a huge incapacitation.
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A
Could be part of it too. It's a time suck, you know, when you're preparing to have a family, you might Start working more hours, you might be spending more time at home, going out less. Right. If you're going out to parties with your girlfriend, she starts getting break, she can't drink. So maybe you're staying home on Friday nights compared to going to a place where a fight might break out, you know, so, yeah, that's, that's interesting. But yeah, I do think you're onto something with the longer term thinking thing. I mean, I remember when my son was born and my whole outlook changed, it seemed overnight. But, you know, you definitely start to put a lot more pressure on yourself as a man to prepare to take care of somebody forever.
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B
So one point of emphasis in your book is who is actually affected by crime the most.
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A
Right.
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B
You have some interesting stats about just how many places and counties in America there are virtually no murders every year and how concentrated crime is in particular cities, in particular neighborhoods, on particular blocks of particular neighborhoods. And so can you say a little bit about that and about how an increase in crime affects different people disproportionately?
- [22:53]
A
Yeah, I mean, you know, we actually kind of did it a little bit at the front of this podcast. It's like a very understandable colloquialism to talk about crime as like a national problem. Let's talk about America's crime problem or New York's crime problem, or, you know, Philadelphia's crime problem. But the reality is, is that crime has never been an evenly distributed phenomenon. It's very, very hyper concentrated. I mean, like really hyper concentrated. So in New York City, for example, three and a half percent of street segments, a street segment would be corner to corner, both sidewalks. Three and a half percent of the city street segments see 50% of the violence crime. Wow. So if you live on the Upper west side of Manhattan, your crime picture is going to look very, very different than if you live in Not Haven on the South Bronx or in Brownsville, Brooklyn. And even within Brownsville, Brooklyn, if you live in a certain housing project, your crime picture might look different than if you live in a private home on a tree lined street. There are environmental factors just from the physical built environment that are conducive to crime in some ways that just don't exist in others. And there's a fascinating literature on environmental criminology showing, for example, that you can reduce shootings in some jurisdictions simply by greening vacant lots, because those vacant lots function as a kind of conducive environment to crime. And so by greening those lots, you eliminate an environment that's conducive to Crime that can't be easily replicated somewhere else, which is why you just don't see the crime get displaced.
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B
So, yeah, and by greening, you mean planting trees and.
- [24:23]
A
Yeah, making it a park, planting trees, having a little path. It sends a signal that someone's taking care of these things. It attracts foot traffic, it attracts witnesses, that kind of thing. But again, even if you zoom out to the national level, you can kind of get a better idea of this. But in the U.S. for example, 2% of our counties are going to see about 50% of our murders every year, and about 60% of counties are going to see zero murders every year. So if you were to be randomly dropped over the United States by parachute, you're probably going to land in a place with a murder rate of zero. If you repeat that experiment over and over and over again, say, 10, 20,000 times, you're going to be unlucky a few times and land in a place with a murder rate that would blow your mind. A place like West Garfield Park, Chicago, which has a murder rate of 131 per 100,000 in 2019. And just to put that in context, the national murder rate was about 5 per 100,000 in 2019. So when we talk about crime in national terms, when we talk about it in terms of a city or even a county, what we're doing is we're aggregating a phenomenon that doesn't exist in the aggregate, Right? Like the New York City homicide rate doesn't really tell you much about how safe you are at a given point in a given time. It really matters what street you're on, what time it is during the day to kind of get a true sense of what you're like. And I try to illustrate this in the book through the city of Chicago, which as a city had a much higher murder rate and has a much higher murder rate than the national rate. But if you just look at the 10 most dangerous neighborhoods in that city, you're going to get a murder rate that, like, close to three times as high as the citywide rate, which is already like, close to five or six times as high as the national rate. And then, you know, within that group, you're going to see a huge, huge contrast between the 28 neighborhoods that have one or fewer homicides. Now, in addition to the geographic concentration, there is also a demographic concentration. And, you know, in New York City, for example, a minimum 95% of all shooting victims every single year for which we've had data and we've been tracking this as a City. Since 2008, every single year, minimum of 95% of shooting victims are either black or Hispanic. Almost all of them are men. That is by far one of the most persistent and starkest disparities in the criminal justice data. It doesn't get nearly enough attention, in my opinion. But highlighting these points, highlighting the fact that the black male homicide victimization rate in the United states is like 10 times that of the white male homicide victimization rate, highlighting the fact that while black men constitute about 7% of the population, they constitute nearly 50% of known homicide victims and perpetrators. You know, that highlighting those data, I think, tell us a few things. It tells us who stands to gain the most if crime goes down, who stands to lose the most if crime goes up. But it also helps contextualize a lot of the data points that get seized on to make the case that the criminal justice system is racist, to make the case that racial bias is at the root of policing, at the root of incarceration, at the root of prosecution. Because it helps us understand, once we internalize that reality, that, hey, if police, for example, are going to be responsive to where crime happens, and I think they should be right, like, I'm old enough to remember that the sort of central critique of police was that they weren't responsive enough to black crime, you can hear it in J. Cole's music where he makes jokes about how fast911 responds in white neighborhoods. Now we have the you sort of proliferation of big data in policing that allows police to deploy their resources to the places that need the most. If you accept that decision process as legitimate, if you accept as legitimate the police should have more resources in Brownsville than they should in the Upper west side of Manhattan because Brownsville needs it more, then you have to accept that those officers are going to interact disproportionately with individuals that live in Brownsville. And if you have an overrepresentation of certain demographic groups in certain neighborhoods where crime concentrates, then we have to control for that. When we're analyzing these other data points that often get seized on to make the case that the system's racist.
- [28:25]
B
This is a very difficult part of the conversation for people because there are sincere reasons and then there are insincere reasons. The sincere reason is that you don't want to encourage the idea that black men and Hispanic men are somehow defective or somehow less than white people and Asians, or that there's some. You don't want to fan the flames of actual racists at all. Who are, who are very, you know, actual racists really enjoy these kinds of statistics, right? They're like foaming at the mouth with happiness to hear that these things are true because it serves their worldview that white people are superior. At the same time, there's an insincere reason which is you just don't want to sound racist. You don't want anyone ever to be able to attack you as a racist because that would be inconvenient for your career. And so basically you're just, you're not going to say or stand for anything that could possibly get you accused of racism, even if it means lying about the reality of crime. Right. And even if it means abandoning the majority of poor black and brown residents of cities that are not criminals and that stand to lose the most when crime goes up. So, for example, as you point out in your book, 2020 was the largest single year increase in homicide. And that increase was felt overwhelmingly by black people.
- [29:53]
A
Right.
- [29:53]
B
Like it was not. Homicide may have gone up a little bit for white Americans, but pretty much all of it was a direct result of more black people getting killed. And many of those people were criminals that were shooting back and forth. Many of those people were children caught in the crossfire and completely innocent people, black people and Hispanic people caught in the crossfire. And the only way to talk about that honestly is to have a little courage and stop thinking so hard about your self image and the fear you feel at being seen as a racist by somebody and, and start acknowledging the problem. I mean, but it's. It's very difficult to talk about this for people and I guess it's difficult for me to talk about, and I wish it weren't the case, but it's true. You know, in 10 years in New York City, there have been maybe five to 10 times I've really felt threatened by somebody, which is to say, like someone was. You know, there's situations where I, I could very plausibly have gotten jumped or beat up and narrowly avoided it or whatever. And every single time it's been a black man. That's a fact. I get no joy from saying that, but it's a fact we have to acknowledge if we're going to talk about the racial makeup of prisons, for instance. So.
- [31:03]
A
Yeah, no, I mean, look, I think you're exactly right. You know, it is a difficult conversation, but it's a difficult conversation because I think people are so quick to revert to the framework that they've been conditioned to operate within, which is this framework of Disparities equals discrimination. And we're only looking at the costly things. We're only looking at disparities about the costly things. Right. You talked about the people affected by shootings. You know, often the people pulling the triggers back and forth, people caught in the crossfire, but also just the broader community. Right. Like, there are studies showing that beyond just the immediate victims of criminal violence, if you are a high school student who lives within a certain radius of a shooting, even if you didn't witness that shooting, weren't involved in that shooting, and don't know the people involved in that shooting, the mere fact that it happened is enough to make you perform statistically significantly worse on a standardized exam than your similarly situated classmate who lives in the same neighborhood with the same demographic area, who sits in the same classroom, but lives outside that radius. You perform worse than they do. Even controlling for everything like iq, et cetera. So it is really, really, really difficult for people to go about their everyday lives if they cannot take for granted that, like, hey, I'm safe here. And, you know, one of the examples I like to give is, like, the D.C. sniper situation. This was all over the news. I remember this. When I was a kid, I heard about it. You know, as I was working on the book, I went back and watched some of the old news clips. I mean, people who are living in some of the most elite zip codes in the country around the Capitol, were consistently reporting to beat reporters and journalists that they were doing all kinds of wild stuff to minimize their risk of being hit by the D.C. can you.
- [32:50]
B
Summarize for me the D.C. sniper situation?
- [32:52]
A
So these were. These were two. This was in the. I must say the early 2000s. Two black men, an older black guy and a younger black kid who basically terrorized the D.C. area for a number of weeks. Just clipping off random people pumping gas and just have your head blown off. You know, they were in this kind of nondescript car and using a sniper rifle. And as more and more of these bodies kept piling up, people lost their minds. Now, people were telling news reporters back then, like, if I'm leaving work late, I would zigzag. Run a zigzag through the parking lot as I got to my car, or I would drive past the E on my car before stopping to get gas so as not to be shot by the DC Snipers now.
- [33:29]
B
And the sniper wasn't just targeting poor neighborhoods. It was just like.
- [33:32]
A
No.
- [33:33]
B
Anywhere in D.C. random.
- [33:34]
A
Yeah. Anywhere in the D.C. area.
- [33:36]
B
Yeah.
- [33:36]
A
You know, they were eventually caught, prosecuted Convicted, can't remember if they were sentenced to death or not. But. But, you know, statistically, your chances of being victimized by the DC Snipers back then were basically on par with, like, being hit by lightning or winning the lottery. And yet it had this profound psychological impact on individuals, Their sense of security, how they went about their day. They actually changed their routine activities, to use a criminological term. Now, what I tell people is like, remember that and now try to imagine what it would be like to live in a neighborhood where you hear gunfire on a nearly daily basis, where the possibility of being violently victimized, shot, stabbed, robbed, raped, is higher than the probability of you graduating from college. Imagine what the psychological weight of that is on a day to day basis. And, you know, I think part of the reason why it's been so easy for people. People to resist the framework that people like you, me, Glenn Lowry, John McCord or others have adopted is they have no idea what that's like. So there's these degrees of removal that I think prohibit them from fully appreciating the other side of the ledger. What I call the other side of the ledger, and what I mean by that is that, yes, there is disproportionality with respect to who bears the costs associated with a robust program of enforcement, of incarceration, of prosecution, et cetera, but the benefits that arise from that are also disproportionately enjoyed by these very same communities. Right. So you talked about how the increase in the homicide rate in 2020 was almost exclusively felt by black men. Really, you know, wasn't many black women, but was exclusively felt by blacks in the United States. Well, if you go back and look at the homicide decline between, say, 1990 and 2014, that decline was almost exclusively concentrated in the black community. So, you know, one statistic that I put in the book is from a study that a guy name Patrick Sharkey didn't. I often disagree on substance with Patrick Sharkey, but I think he's a good scholar and he's done some really interesting empirical work. But he looks at the homicide decline and sort of who benefited from it, you know, in terms of demographic groups. And what he finds is that between 1990 and 2014, the decline in homicides added a full year of life expectancy to the average black man in America.
- [35:47]
B
Wow.
- [35:48]
A
And according to that study, the public health equivalent of that would be to eliminate obesity altogether. So this massive, massive benefit compared to white people, it only added 0.14 years of life expectancy to white men. So Here you have this massive, very, very stark disparity in the dispersion of the benefits associated with the things that I think helped bring about the homicide decline. And yet that gets left completely out of the conversation when we're talking about, you know, racial disparities in criminal justice. And my hope with the book is that by kind of harping on the point of who it hurts most, it will help people understand that these are also the communities that stand to gain the most in a disproportionate way, which I think, I hope makes it harder to kind of malign the argument that I'm making as one that's indifferent to the reality of disproportionality along racial lines and criminal justice data.
- [36:40]
B
Yeah, so many things I could say here. I mean, one is that I find it particularly odious when people, you know, some of the loudest voices for defunding the police, dismantling the police, abolishing the police. You know, someone like a Patrisse Cullors, who is one of the three co founders of Black Lives Matter, after having enough money to completely move out of high crime neighborhoods and buy several houses in, you know, sunny, crime free suburbs, basically lights the dynamite as soon as they've cleared the blast radius and says, set it all on fire. Defund everything. Now that I live in a neighborhood that it will be totally unaffected by that policy change. I mean, we should just stop to consider how whenever someone moves anywhere in a city like New York or any major city, always in the top three list of your concerns is what is crime like in that neighborhood? Usually it's number one. And it can be so it's so obvious that it's number one that you could forget how important it is to you. So, like, I know you lived in East Harlem for a while, right?
- [37:45]
A
Yep.
- [37:45]
B
East Harlem is notoriously one of the, at least in my tenure in New York has been known as one of the crime hotspots in New York. And the one time I don't remember why I was walking through East Harlem, I was on 1 16th and like first or something. Broad.
- [38:01]
A
Yeah.
- [38:02]
B
In broad daylight, I saw a man beating the shit out of his girlfriend like 20ft away from me, and there was no one else on the block. It was just like, I got to walk past that and feel like a coward for doing nothing. But looking at him, he could beat the shit out of me if I tried to intervene. And I don't even know if she would want me to intervene. It could be one of those cases where If I called 911 and everything went, quote. Well, she would be cursing me out for, right? You know, like. So I. Needless to say, I never went back to East Harlem again because that was terrifying. The point. Yeah, man, yeah, go ahead.
- [38:34]
A
I was gonna say, I mean, yeah, we moved to East Harlem because we could get a better deal on an apartment there. You know, my wife and I didn't have any kids yet. She was working in East Harlem. It was an easy commute because I was along the 4 or 5 and I. Manhattan Institute's right here outside Grand Central. So it was three stops, 15, 20 minutes to get to work. And it was a nice building. It was a brand new building. I think we were the first people to live in our apartment. But, you know, along Second Avenue you had the Douglas Houses that were kind of very much a notorious crime hotspot. On 123rd you had the Taino Towers, which, again, you know, lots of crime, you know, outside the building. On a summer night, it's like half the residents are hanging out outside and fights break out. And, you know, down 3rd Avenue you've got a bunch of liquor stores that drug dealers hang out in front of. And then 125th Street. At the time, I don't know what it's like now, but it was basically like an open air shooting gallery. So it was just, you know, people strung out, laid out in the street, half naked. You know, people defecating on the street, throwing up on the street. I remember one time I was walking to the train to come into the office, and so this guy, you know, clearly an addict, he was in a wheelchair. And here go these like, three high school girls in Catholic school uniforms. And he, you know, he's kind of like leering at them. And as they get closer and pass him, he says something just absolutely filthy. They keep walking in stride as if this is just a regular part of their day. These Girls are like 14, 15 years old. And then as soon as they turn the corner onto 125th, he just very casually leans over, sticks his finger in his mouth and. And pukes an insane amount all over the street. And then rolls away and just goes right back to the group that he was hanging out with on 120 fish. I just remember thinking, like, this is right around the time that we got pregnant with our son. And I was like, we can't push a stroller around this neighborhood, no way. You know, by then we weren't even going to the supermarket down the street to go food shop. We would call An Uber. And take an Uber down to the target on 1 16. Jesus, get groceries, get back in the Uber. Because there was like an, you know, there's this parking lot structure. You didn't have to like go out onto the street. It's like we would walk occasionally, but very, very rarely, you know. And it was, it was really just about a safety concern. But you know, the thing that really kind of sticks in my craw and pisses me off about this whole debate is like, we're lucky. Like, you know, my wife and I, we do well, we've had success. And so we have that option of moving. Like when we got pregnant, it was like, hey, we're going to break our lease. And like we ended up paying two rents for like two and a half months. And you know, we could afford to do that, but lots of people don't have that luxury. And it's like, what do we do about them? Right? Like they deserve safety. Safety too.
- [40:56]
B
Right. All they have in the short term are the cops.
- [40:59]
A
Exactly.
- [41:00]
B
And so, and I guess I want to raise that to encourage people to think of how important it is to them to not live in a massive crime hotspot and how much money those of us who are able to, the premium we spend on not living in a crime filled neighborhood. It's as important to poor people to not live in a crime filled neighborhood. They just often don't have the options that we have. And so to from a place of safety to just say, yeah, we should defund the police. When as I mentioned in this podcast, people in neighborhoods like that are generally saying exactly the opposite. They're saying either I want the same amount of please keep the police presence the same, or often saying, I actually want more police presence.
- [41:41]
A
Yeah. I mean, look, and there's also data showing that particularly in low income minority communities, that they want better, more equitable policing. Right. So that's, that's a debate to have. I suspect that a lot of that, a lot of responses along those lines are kind of knee jerk in the sense they're based on a sort of uncritical acceptance of a narrative that prevails in the sort of mainstream legacy media. Right. Like we're just, we're kind of told that it's a given that police violence is a massive problem. We're told as a given that police officers are, you know, racially biased and determining who they stop and, and who they use force against. And that I think is frustrating too, because it serves as kind of a speed bump along the path to you know, safer communities. Which is not to say that these are issues that should be ignored or that policing is perfect. That's not what I'm saying. What I'm saying, though, is that we have to, I think, have a more realistic sense of what the scope of the problem actually is, what is likely to actually fix it. So you can poll people and find lots of support for certain kinds of reforms. That doesn't mean that those reforms are going to work, and it doesn't mean that that support is reflective of a realistic sense of what the underlying problem is. And so, like, I'll ask people, sometimes when I'm giving a talk, I'll say, like, how often do you think police officers use force when they're making an arrest? The answers tend to range from like, 15% at the low end to like, you know, 50% at the high end. Like, you know, if people kind of know my work, you know, and are in the audience, they'll say. They'll say the right answer. But people who haven't really studied this and are just kind of casual observers, this is kind of range that they come back with. And yet the reality is, is that police officers use force in less than 1% of arrests, you know, and it just blows people's minds when they hear that, well, that can't be true. You know, they'll say like, well, this is police data that you're relying on. Right. So they have an incentive to make it look one way. And it's like, well, you know, the police state has been around for a long time, and we've seen a really sharp downward trend over that time. So, you know, they had that same incentive back then, presumably, right. In 1971, when the NYPD first started murder, reporting how many shootings their officers engaged. And I think they shot 220 plus people now. I think they discharged their weapon maybe two dozen times across an entire year. Even though the population in the city's gone up, the size of the NYPD has gone up.
- [43:57]
B
Yeah.
- [43:58]
A
And so, you know, that's a massive improvement. One, which is not reflected in the sort of rhetorical posture of our debate. But two, you know, I think it. It helps kind of water down the concern that maybe there's something up with the police data. The other thing is, is that you would expect to see an incongruity between the police data on use of force and the surveys of people who have contact with police and how often they say that they're subjected to use as a force or that they have force threaten on them. And you don't see that incongruity. The statistics match, the rates match. And so, you know, I just. Another thing I hope people get out of the book is that like, there is a lot more to understanding what the real scope of this problem is. And so the risk of over defining the problem and overblowing it is that you gin up support for policy experiments that have significant downside risk that again, are going to fall disproportionately on the places that are most vulnerable to crime. Right. Like, you know, when you, when you saw the decrease in pedestrian stops within the Chicago Police Department in 2015 and 16, it didn't really affect things all that much in the Gold coast and you know, Lakeview and Wrigleyville and some of the nicer neighborhoods like Lincoln park, but it really, really changed things in places like Englewood and Austin and West Garfield park and Humboldt Park. Like, it's really, really important for us to understand whose lives we're experimenting with.
- [45:13]
B
Yeah. And I just see example after example after example of the residents of disproportionately black, poor, high crime neighborhoods rebelling against this progressive urge towards de policing and leniency. Right. Like, so the election of Mayor Adams, Mayor Eric Adams in New York is one example. All he did was run on crime. I mean, his whole campaign summarized in a single sentence was, I've been a cop my whole life. We are going to deal with crime. And black New Yorkers elected him in droves over all of the candidates that to different degrees departed from his hard line stance. And so he took the hardest line and he won handily. Right. Precisely with the people that, you know, when polled in many cases will say that the police are racist and that they want police reform, but they want police presence, certainly, and are totally allergic and rebel against the narrative that you see in lots of media outlets in academia. Like everything you would learn in a policing 101 class at AS like an undergrad at Columbia University would be rebelled against deeply by the majority of black New Yorkers. And that's a very interesting fact. Just like the departure from what is mainstream among academic scholars, you know, outside of conservative think tanks like mi. Right. Like at the, at the elite universities. It's just totally rebelled against by most people, including the people that folks think they're speaking for. And I wanted to talk specifically about, about the New Jim Crow, the book the New Jim Crow by Michelle Alexander and the documentary the 1313th by Ava DuVernay, because I think anything that's been written or filmed in the 21st century, these two pieces of argumentation have done the most to persuade liberals and progressives that the criminal justice system is inherently systemically racist. That I'll just put forth some of these claims to you and maybe you can talk about what's wrong with them. That overwhelmingly that America has a mass incarceration problem. Right. Where like 5% of the world but 25% of the prison population. What the hell is up with that? The new Jim Crow argues that our mass incarceration problem is largely, maybe exclusively, driven by drug offenders. You know, putting people in prison for having a small amount of weed in their pocket. Right. Why is it that kids who go to Harvard smoke weed in their dorm rooms and nothing happens to them but kids from the hood smoke weed and they end up in prison for X number of years? And that's what's driving our mass incarceration problem. It disproportionately hits people of color. And these fears of violent crime are largely fear, you know, right wing fear mongering, sometimes even Democrat fear mongering that ends up just putting people in prison for nonviolent offenses. And the prison conditions are awful and it causes criminals to commit more crime because of the effect of prison on their psychology. So basically, yeah, take all of what I just said as a summary of the new Jim crow and the 13th and talk about what you think those pieces get wrong.
- [48:35]
A
It's a big question because they get a lot wrong. Okay, So I am going to really push back against what is largely still considered the conventional wisdom. And that conventional wisdom has been perpetuated in part because of those two pieces. I think you're right about that. Let's start with the claim that we have a mass incarceration problem. A mass incarceration problem. That term itself contains a very specific argument that we over incarcerate on a massive scale, meaning that a huge portion of who's in prison shouldn't be there. How do we determine whether or not they should be there? Well, I propose in the book that one way to do that is to ask ourselves the question of can we safely release most people who are in prison? And that's exactly what we would need to do if we were to achieve parity with the other kind of Western European democracies that we're often unfavorably compared to. So you mentioned this statistic that we have 5% of the world's population, about 25% of its prisoners. It is true as far as it goes. It is intended to have the rhetorical impact that it often has, which is to say it's supposed to have shock value. But there's good reason for this, right? You know, you ask a lot of left wing people in the United States about gun control and one of the first things that they'll point out is that the United States has such an elevated level of gun crime compared to other developed nations. This is something that they seem to completely forget when we're talking about the issue of incarceration disparities between the US and other democracies. So the reality is that the US Just has way more pockets of concentrated violent crime and violent crime of the sort of, I'm talking about homicide shootings. This is violent crime of the sort that would land you in prison for a long time, irrespective of where you committed it is really important because this is the level of incarceration that we have in the United States is presumed to be a function of our overly punitive disposition toward crime. And I don't think that's entirely right. And there are a couple of reasons for that. I mean, to take Germany, for example, another Western European democracy, were often unfavorably compared to they actually sentence a higher proportion of people convicted of murder to life in prison than we do here in the US in the uk, mandatory minimum sentence for gun possession is five years, of which you have to serve at least three and a half years mandatory minimum. That is an offense that is very, very regularly met with probation or diversion here in cities like New York. So it's not the idea that we're more punitive. What we have a lot more of here are instances of really serious violence, criminal violence, homicides, shootings. Again, there are, you can just cobble together. And I do this in the book, actually. I look at England, Wales and Germany, which I think collectively have a population of about 142,200,000 people. And I look at how many homicides they had in I think it was 2018 or 2019, it was like 3200. Now when you take those numbers, leave them aside for a second. Let's just look at four cities. Let's look at Chicago, Baltimore, Detroit and St. Louis. You can just pick out a handful of neighborhoods in those four cities. Come up with a geographic area that has 470, 480,000 people and you will get 10% of all of the homicides seen across those three countries I just mentioned, despite those neighborhoods consisting of just 0.3% of the combined population of those three countries. Right. So it just just to give you a sense of the scale of our problem compared to theirs. Again, a problem that people recognize is much larger in other contexts of other social debates. So that's point one. The idea that this is driven by drugs is just wrong. And it boggles my mind that Michelle Alexander's book continues to receive the praise that it does, continues to sell as well as it does, because I think it's been debunked, at least its central claim has, on multiple occasions by scholars on both sides of the aisle. Right. John Thab, who's no conservative, wrote an entire book kind of explaining why that myth was just that mythology. Let's look at who's in prison in the United States. We're looking at the state prison population, which accounts for about 90% of all prisoners. Only 14% of prisoners in the United States, at least at the state level, are incarcerated primarily for a drug offense. Right. 60%, more than 60% are incarcerated primarily for either a violent offense or weapons offense. So that is a huge disparity. Speaking of disparity, the idea that drug enforcement is at the root of the racial disparity in incarceration is also wrong. We could release everyone incarcerated for a drug crime today, and the racial disparity in our prison system would not change a wink. In fact, I think it would actually grow slightly. So that's also wrong. The drug point, too, should be criticized further. I think it reflects a poor historical and an incomplete historical analysis, which is to say that the idea that we can assume that the story of drug enforcement in this country is a story of racism is wrong. And, you know, I'm going to cite here a scholar that I think, you know, well, Michael Fortner wrote an entire book about the role that the black community played here in New York in the development of the Rockefeller drug laws, which is kind of one of the sort of precursors to the mandatory minimums attached to crack cocaine offenses at the federal level in 1986, and that the Anti Drug Abuse act of 1986, which established the very infamous 100 to 1 sentencing disparity between crack and powder cocaine that features prominently in the 13th. What they don't tell you in the 13th is that 16 of the 19 members of the Congressional Black Caucus co sponsored the Anti Drug Abuse act of 1986. This was popular in the black community back then. You can go back to 1990 and on PBS, watch William F. Buckley, white founder of National Review Debate, Charles Rangel, black congressman from Harlem, on drug legalization, where Buckley is taking the position that we should legalize drugs. And Rangel is actually proposing life in prison for certain crack dealers. So the idea that the black community didn't play a role in the escalation of the drug war is wrong. And it's important to recognize because it undermines the claim that the drug war was escalating as kind of a, you know, a racist attack on a disfavored demographic group. But again, it's not at the root of our incarceration problem. The vast majority of people incarcerated are not incarcerated primarily for drugs. And even the ones that are incarcerated primarily for drugs are incarcerated because they've also proven themselves to be dangerous in other respects. These are individuals who have very, very lengthy criminal histories. Right. The average person released from prison in the United States had more than 10 prior arrests and more than five prior convictions before they entered prison. So, you know, the idea that we're sort of systematically denying people second chances is just absolute horseshit. It's not true. And so it's also not true for drug dealers. Right. And when we talk about the sort of justifications for incarceration, there, there are four. There's incapacitation, there's deterrence, there's rehabilitation, and then there's retribution. We're just talking about incapacitation, which is the sort of benefits that communities enjoy as a result of someone being taken off the street, not being able to commit crimes and harm the community. When we look at drug offenders, they are not exclusively drug offenders. I even, I hate using that label because it implies a sort of static nature to the category that just isn't rooted in reality. There's really no such thing as just a drug offender. Very few criminals specialize in that way. Which is to say that, you know, when you lock somebody up for a drug offense, you're not just protecting the community from drug offense offenses, you're often protecting the community from violent offenses. And if you look at the recidivism data in the United States, more than three quarters of people who are incarcerated primarily for drug offenses are going to get rearrested for a non drug offense after they're released. More than a third of them will be rearrested for at least one violent offense specifically. So, you know, there is.
- [56:14]
B
So how do we know that that isn't a consequence of they got busted for a drug offense, went to prison where they had to toughen up and acclimate to violence, and then. And also inevitably, probably befriend a lot of violent criminals, and then they get out and they're in those circles. And it's criminogenic in that way.
- [56:34]
A
Right. So there's, there's two reasons. One is that no one's really going to prison on their first offense. Right? You're getting multiple bites at the apple before you get incarcerated. My colleague Heather McDonald likes to say that a term of incarceration in a state penitentiary is akin to a lifetime achievement award for persistence in criminal offending because of, you know, how many times you have to offend before you actually get sent to prison. So, you know, people have it in their head that prison is a very common outcome as a result of a criminal conviction. It's not. Only 40% of state felony convictions result in a post conviction prison sentence. And most people entering prison have at least one prior felony conviction, multiple misdemeanor convictions, and more than multiple arrests. So that's reason one. Reason two is that you know the literature on the degree to which prison is criminogenic. Incarceration is criminogenic is not as it doesn't speak as loudly as I think proponents of this view think it does. Which is to say that yes, there is some evidence that for some people, the experience of being incarcerated leads to higher rates of recidivism later, later on. And sort of one of the working theories is that this is because prisons are essentially schools of crime. And so, you know, you go into prison, you learn how to be better offended, you become more comfortable with violence, et cetera, and then you go on and commit crimes at higher rates. Now, when you're trying to study the effect of something like incarceration, you want to ideally have a situation in which the treatment, exposure to the treatment, in this case, incarceration is random, but the decision to incarcerates almost never random. Right. There are really good reasons why judges send offender X to prison. There are really good reasons why judges divert offender Y away from prison. So how do we figure out how to develop a quasi experiment or an experiment without violating ethics rules? Well, one way that you do it is you look at offenders who are engaged in the sort of criminal conduct that isn't so serious that it would obviously lead to their incarceration, but isn't so minor that it would obviously lead to their diversion. Call this people who are on the margins of incarceration, so their criminal histories aren't super extensive. Often you're talking about mid level drug offenses, lower level assaults, burglaries, et cetera, larceny, theft. And you're looking at these kinds of offenders in a particular jurisdiction and you look at the judges that they get randomly assigned to, and you categorize those judges as kind of middle of the road, lenient and harsh. And then you take all the middle of the road judges out, you look at only the people who get randomly assigned to both lenient judges and then get diverted, and then the people who get randomly assigned to harsh judges and then get sent to a term of incarceration, whether that's in jail or in prison. Now, for those people who get incarcerated as a result of being randomly assigned to a harsh judge, their outcomes are on average worse than the people who get diverted. The problem is, is that this body of research gets grafted on to a population of offenders that are not at all like the marginal offenders that those studies are looking at. And so it doesn't really tell us very much. And the studies that actually do look at whether or not there is an impact of incarceration on post release recidivism for high risk offenders, what you find is that the criminogenic effect is entirely concentrated among low risk offenders, which is to say that we don't actually make most of the people who tend to go to prison worse off by sending them to prison. So the other thing I want to say here is like, yes, I am all for trying to figure out whether there is a subset of people in prison or jail whose incarceration is not serving a legitimate penal end. And to my mind, the most legitimate penalty penological end is incarceration is incapacitation. I am not a retributiveist at heart. I understand it. I think you have to satisfy society's need for it because otherwise you get vigilantism. I don't think we have figured out how to rehabilitate at scale. And so, you know, while I think we should continue to invest in efforts to, you know, figure that out, I don't think it sort of tops the list as reasons to incarcerate. I think deterrence would probably come in at number two. So when we're talking about the kinds of releases that we would have to engage in to achieve parity with Western Europe, which would require us to release about 75% of all people incarcerated in the United States, we're talking about people who are actually dangerous, who are very, very likely to recidivate if they're released. And you know, and by very likely, I mean like 83% of people who are released from prison are going to go on to reoffend at least once on average. They'll get rearrested five times over 10 years. And that has to be viewed in the context of the reality that the vast majority of crime A doesn't get reported reported in the first place. And then the crime that does get reported, the vast majority of those crimes don't get cleared, which is to say they don't result in an arrest. So you kind of have to take those numbers with a grain of salt and understand that they're understating the scope of the problem as well.
- [61:14]
B
So what do you do with the examples that I see crop up in the media from time to time, of person that was sentenced to a few decades in prison for possession and you know, a governor pardons them on the way out, or President Trump pardons someone from the federal system. Like these seem to be real examples of someone in prison for, you know, decades for weed. And so are these just flukes that are unrepresentative of the general picture? And how do those flukes arise?
- [61:46]
A
Yeah, so these are real stories. Right. Like again, the argument here is not that the criminal justice system always gets it right, that it's perfect. You know, I acknowledge several times throughout the book, yes, there is a subset of people incarcerated who shouldn't be there. However, there's also a subset of the general population that should be incarcerated, but isn't. How does that happen? And it can happen in a couple of ways. Right. There are some jurisdictions that over the course of the 70s and 80s adopted, you know, three strikes rules where if you commit certain felonies and are convicted of those felonies three times, you are, you know, open to very, very lengthy sentences as a result. And there's very little discretion that judges have over that. There's a reason why those rules were developed. Right. And I think we're seeing some of that now. Right. Like I opened the book with a story of a woman named Brittany Hill who was shot and killed in Chicago in the Austin neighborhood. And that the shooting was caught on video. It's, it's extremely tragic. I mean, she's sitting there, broad daylight, holding her baby, one year old girl. And that girl was narrowly spared. You know, the, her mom was shot like just under where she was holding the baby. But this woman, you know, shields her baby from gunfire, tries to get away, collapses in the street. You can watch all of it. Her daughter's just sitting there amid this barrage of gunfire and in kind of her last act of heroism on earth, she throws herself over her baby. Now, because the shooting was caught on video, the Chicago Police Department was able to make an arrest fairly quickly. And they Arrested two people. One of them was a guy who had nine prior felony convictions, including a conviction for second degree murder. He had God knows how many arrests and he was out on parole. So he had an active criminal justice status. He had many, many, many bites at the apple, many second chances. Nine felony convictions. That's not misdemeanor convictions, that's not total arrest. Nine felony convictions, including for second degree murder. And yet this guy's out on the street. And so like, yes, there are these terrible stories of people who have been incarcerated for far too long, for far too little. We should try and optimize. What I think happens though, is that the marginal case like the ones that you just described, they are reported as if they are at the center of the distribution. They're not. And they create this sort of dissonance, you know, this sort of false narrative, false view in the heads of people who have good hearts and want to avoid that kind of thing, but come to see that as a common outcome when the reality is that it's actually much more common that you'll get the kind of story that I just told. You know, in the city of Chicago, the average person charged with a shooting or a homicide has been 12 prior arrests. 20% of them have more than 20 prior arrests. It is much, much more common that the failure to be harsh enough will lead to a life destroyed than it is that a failure in the form of being too harsh will lead to a life destroyed.
- [64:27]
B
And the distribution of sympathy here really bothers me. Like the fact that almost nobody I know has sanctified or canonized the name of a two year old black child caught in the crossfire. Though, like every year there are like dozens of heartbreaking examples. I remember there was one, I think it was from Chicago. And my failure to remember her name is part of what I'm talking about. It's like, I think she was trick or treating, wearing like a bumblebee costume and was shot dead, caught in the crossfire of just, you know, another nameless gang warfare shooting. And yet everyone I know has heard the names Michael Brown and Breonna Taylor and George Floyd and Sandra Bland and Walter Scott. And we as a nation, we have a tendency to canonize people that are killed by the police and just totally ignore the equally tragic. And disproportionately it's equally tragic, but it's actually much more likely to actually happen.
- [65:32]
A
Right?
- [65:33]
B
If you are a typical black citizen, you are much more likely to be victimized. Right? So it's, it's more common and yet there, I actually can't think of even one person that has been held up as an example of a problem that we really want to solve and where all the, the machinery of society's empathy and sympathy is triggered and comes around in a national way. I mean, it happens on a local scale. You go to such communities, you will find, you know, you will have the, the bouquet of flowers and the candlelight vigils.
- [66:05]
A
Right.
- [66:06]
B
But it just never, it never trickles up to the national media, I think.
- [66:11]
A
I suspect it has something with the, it has something to do with the fact that for whatever reason, well, to do upper middle class Americans, educated people who see themselves as sort of moral beings, they are told to, and feel guilty about situations in which individuals die at the hand of police because they have internalized responsibility on the grounds that they have voted for or have been silent in a system that voted for laws that put police in these communities and that caused these things. Whereas they don't see themselves as, they don't see themselves as responsible for the death of some kid who's killed by some gang banger. I was going to choose a different word there, you know, who's, who's been given his fifth or sixth bite at the apple of playing by society's rules by virtue of some criminal justice reform. And that bothers me. It does, because there's just as much responsibility in the other direction. These are much more sympathetic people, frankly. Again, the impact on these communities is, it goes well beyond, you know, just the individual. You know, it changes the scope of daily life. It affects how you plan for the. I mean, if you're a 15 year old kid living, you know, in one of these messed up neighborhoods where people are literally dropping like flies around you, where it's not uncommon for every single school year to lose 2, 3, 4 classmates to gun violence, how are you supposed to convince yourself that, like, oh, I got to take the PSATs next year and do really well so that I can do all the SATs and then go to college and then four years, maybe I'll graduate and get an internship and then develop a career. And it's like you have no reason to expect to make it past, you know, the age of 25. And yeah, I mean, I'm with you, man. Breaks my heart. It, it makes me angry. It makes my blood boil again. What do you do about it? I mean, my best attempt is just to try and get people to sort of feel the kind of sympathy that motivated this book for me. I mean, you know, I think it's very easy to kind of characterize the work that I do and other people who are kind of seen or, you know, sort of caricatured as like, tough on crime people. I think it's very easy to just paint us as motivated by antipathy for, you know, gang banger types, et cetera. And like, maybe there's some of that. But by far, I see my work as being driven mostly by a very, very deep sense of empathy for the people who are living in these places. And, you know, I just wish more people would feel that. I wish more people would see themselves in these kids who lose their lives. I wish more people. People would see these themselves in, you know, the old lady that's scared to go to the corner store by herself. I mean, it. Yeah.
- [68:51]
B
So I wanted to reexamine this. This point. I mean, a lot of what you just said in parts of your book are reorienting your perception of a lot of people in prison. Right. So I guess there are. There are two caricatures here to fight against. One is that everyone in prison is just a complete degenerate, you know, never going to be able to reintegrate into society. Violent to the core and irredeemable. And on the other end, extreme end of the spectrum, you just have everyone in prison is just like your college roommate that smoked weed, except they happened to be born in the wrong neighborhood and got fucked by the system.
- [69:31]
A
Yeah.
- [69:31]
B
You know, I think the truth is definitely in between. I don't know if it's right in the middle necessarily, but it's. So, I mean, the picture you're painting is, you know, the average person released from a state prison, which is the typical case, has, I think you said three to five prior convictions and like 10 prior arrests. Okay, so that's. Well, yeah, yeah. The picture you're painting is of someone who is basically a career criminals, like, when they get out of prison, they pretty much know they're going to continue committing crime. And that. That may seem like a crazy orientation, but if you think of organized crime, for example, like, that would. It wouldn't surprise you if Paulie from the Sopranos gets out of prison and goes back to committing crime because it is his career, in the same way that my career is writing and podcasting is like, why would you not go back to doing the one thing you know how to do well, and the.
- [70:25]
A
One thing that fits with your social disposition right there is.
- [70:30]
B
And the thing you've created your identity around as a kid, grown into as a man that you get pride from.
- [70:36]
A
And there's this sort of discomfort with the reality that like just a genuinely antisocial disposition explains a lot of criminality, violent criminality in particular. If you just look at the general population, a psychological diagnosis like antisocial personality disorder has a prevalence rate of between like 1 and 3%. For men, it's about between 2 and 4%. In prison population, it's like 40 to 70%, depending on the institution. Right. Like, we can't ignore. There is this underlying reality that for whatever reason, whether it's exposure to trauma in early life, whether it's, you know, a breakdown in the socialization process as a result of breakdowns in the family, like individuals who find themselves behind bars are very, very likely to have identifiable psychological dispositions that we don't really know how to, to cure, let alone how to cure at scale and how to cure for a long time.
- [71:33]
B
So I just want to get the second half of this point I wanted to get you to respond to is, despite that, you see documentary like Lynn Novick's, I think it's called College behind Bars. And I have friends that have taught in prison. And the picture you get from that is of people that have made very bad mistakes but are very much redeemable. And if given the right environment in prison, like seize the opportunity to learn and you know, write essays, you know, have like a hunger to participate in healthy pro social activities that's not getting nourished. And that like the picture you get from the documentary College behind Bars is, wow, these guys really have a lot to contribute to society. And we would have never known that if there were no college program at this particular prison. And why isn't there a college program at every prison in the country? So, so you say, you know, 40 to 70% have an antisocial disposition. And maybe we're just talking about that, the 30% or 30 to 60% who don't. And so what do you make of the fact that it seems like there are a lot of people in prison that can contribute to society but languish in prisons where there's nothing to do but there's nothing productive to do but, you know, pick which race, which race you're gonna gang up with and survive?
- [72:57]
A
Yeah, especially if you're out west. I mean, the prison politics, you know, the west of the country are very, very racial. And it's actually, it's a whole world that's very dark, if sort of intellectually fascinating. But yeah, I mean, look, I, I say this in the book and you Know, I believe it. I don't. I'm not one of these people who, again, is motivated by a sense of retribution. Like, I don't think prison needs to be a hellscape. And in fact, I think there's actually some pretty good evidence that things like overcrowding, for example, are associated with worse outcomes with more violence experienced on the inside, which in turn is associated with, you know, higher rates of PTSD diagnoses for people living in prison. So I am all for making the experience of incarceration as humane as possible, as productive as possible. I think it's also very important for us to remember that when we're talking about people languishing in prison, we're talking about people. People who did really, really, really terrible things. And again, long terms of imprisonment are not common. The median amount of time actually served in state prison is about 16 months. The mean is a little over two years. I think it's like one in five people who are convicted of either homicide or sexual assault are out within 10 years. So even for really serious crimes, people will get out and a lot sooner than a lot of us have in our head. But when you're talking about people who had been in there for a really long time, you're talking about people who did something terrible. And it is important for society's need to satisfy its. Whatever its retributive thirsts are, because if the system is seen as not doing that, what gets encouraged is what you see in a lot of really rough neighborhoods that are plagued by violence, which is, you know, vigilantism, taking things in your own hands and. And, you know, kind of meting out death sentences in the street. That. That's not a world I want to live in either. But, yeah, I mean that. All that said, I am 100% convinced of the reality that some people who find themselves behind bars find themselves there as a result of having made terrible decisions. I know some of these people. You know, I have family who have been in state prisons. I have friends who've been in state prisons. One of them recently told me that that was the best thing that ever happened to him because. Because he hit bottom, and it gave him an opportunity to realize that he needed to change his life, and he did.
- [75:16]
B
That's not the most uncommon thing to hear, by the way.
- [75:18]
A
Yeah, it's not. It would surprise a lot of people.
- [75:21]
B
Yeah. I remember when my girlfriend was working in prison and teaching in prison for a while, she reported a lot of them, maybe even most of them, would openly say yes, I deserve to be here. They were the cohort that was wanting to change and take responsibility and use the time to become better. Right. And they, and they would, you know, many of them would acknowledge that they did what they did to deserve being there and would use that as a jumping off point in an almost Alcoholics Anonymous style taking of responsibility.
- [75:51]
A
Right. But there's also this reality that when you're incapacitated in that way, I think some people actually, and you know, I've had people who've been incarcerated tell me this, that like, it's almost like a sense of relief, like, I know I can't mess up now. Like I'm here, I'm protected from myself in a weird way. I can't do something terrible. And I'll, I'll have the time to calm down or age out of this or whatever it is. And, you know, I don't think that gets appreciated enough. But, you know, when you talk about some of these programs that have shown success, I think it's also really important to realize that we're often talking about programs where there's a bit of a selection bias at play. Right. Like these are individual inmates who are affirmatively applying to participate. Right. So you're already talking about a subset of the population that is more conducive to positive change than maybe the general population. You're talking about people who are going through programs that are being administered in a compulsory setting. Right. Like you don't really have anything else to do. You don't have any other options. It's an open question of whether you could achieve that same success outside of that incarcerated setting. But the other thing that you see often in evaluations of some of these programs is a reversion to the mean over the long term. So maybe you have a sort of short term diminishment in the likelihood of criminal offending, say for two, three years. As time passes, you start to see recidivism rates creep back up. So the Bureau of Justice Statistics, which does a lot of reporting on recidivism rates, has done a couple of longitudinal analysis that extend the sort of typical observation period for recidivism from three years to 10 years. And what they find is that there's actually a big increase after the five year mark. So if you were to stop at three or five years, you'd actually miss out on a lot of rearrests. And what that tells us is that there's something deeper that a lot of these individuals are fighting against and sometimes fighting valiantly. That just kind of takes back over time. And so again, when we're talking about these kinds of policies, which we should be talking about out. Right? Like, again, I'm not not saying like, you know, hey, there's this risk that means we zero it out. Everyone goes forever for anything. Like, that's not the world I want to live in either. But we just have to be very, very sober and careful about what risks we're taking with the lives of other people. Because again, most of the people making these decisions are never going to have to bear the consequences of.
- [78:12]
B
So let's see what else I want to hit before I let you go here. What do you think of marijuana legalization in general? I've sensed that there might be some. Some distance between you and I on this one. What is your general picture? Like, should we legalize marijuana? I mean, should places do that? I'm noticing now in New York that people now sell weed openly.
- [78:32]
A
Right.
- [78:32]
B
Like, people sell their tables just full of weed in Washington Square Park.
- [78:36]
A
Yep.
- [78:37]
B
And I don't like it. You know, I've always been pro legalization in general. Like, the notion I've smoked a good amount of weed in my life. The notion that anyone ever, frankly, has gone to jail or prison for having an amount of marijuana that like half of Americans at some point have, like, had in their pocket is crazy to me. And the disparity between how it's treated if you grow up in a suburb versus a city. And there's a racial disproportionate impact too. All of that has always seemed awful to me and to merit pretty much all of the condemnation that it gets from the end the war on drugs crowd. So I've always just agreed with that. I'm not sure the right equilibrium is to sell weed openly in the park. You know, we don't even do that with alcohol. Like, I don't want. I wouldn't want people selling. Selling liquor in the park. Right. So where do you stand on that in general and how do you see that? Our national conversation on that topic.
- [79:29]
A
Yeah. So there's. There's kind of two ways you could approach the question. Right. You can have the sort of moral, philosophical debate about whether these laws are congruent with a system of ordered liberty. You can also have the public policy debate. And, you know, that's the hat that I have on when I'm in my professional life. The questions that I'm asking is, is there evidence that society is going to be better or worse off for this? Is there evidence that crime outside of Just this particular category is going to go up. Is there evidence that violence will increase? And I think it's a hard question. I mean, there is some evidence showing that weed legalization is associated with higher rates of car accidents increase, including deadly car accidents. There's, you mentioned the sort of disparate treatment of drug possession in suburbs and cities, and that's actually an important point to hit on. It's, it's what I talk a little bit about in the book. But like that line of argument assumes that the rationale undergirding drug enforcement efforts are rooted in use rates, in possession rates, in dealing rates, as opposed to sort of functioning as trying to think of the right word basically as, as pretexts to fight more serious forms of violent crime. And so I, I think there's a lot of that, there's a lot of that at play. And so, you know, when you see disparate patterns along racial lines of marijuana enforcement, you also tend to see that that enforcement is concentrated in really high crime areas. I think part of that has to do with the idea that police are trying to uncover other kinds of crime, more serious contraband, to discover open warrants, et cetera. You can take issue with the legitimacy of that approach. I think that's a fair debate to have. But it's important to recognize that that's what's at play as opposed to racial animus, which I think is often what people kind of revert to as a default explanation in their head.
- [81:22]
B
Yeah, no, I think now, now remembering we've talked about this before, it's good point. You make that in practice police are using these lower level offenses to get at the illegal gun or whatever. You know, the, I think the example you use in your book is jumping the subway turnstile. It's like an annoying little fairly harmless thing to do. It's like you're not actually hurting anyone. It's like, okay, the city has 275 less in its coffers. But what that can be is like often in practice, cops will find whatever the stat was. 1 in 10 people, they catch doing it.
- [81:56]
A
1 in 6 had an open war.
- [81:59]
B
Had an open warrant for something more serious, and they never would have gotten, or they, they may not have gotten to that person for a long time had they not enforced that low level. Right, whatever. And, and, and this is true also probably for what is probably true is that anyone with a serious crime, statistically the type of person to commit very small infractions more than the general population. Right. Like, right. The criminal that that has three illegal handguns probably isn't fixing every broken tail light as assiduously as, like, the typical person. So if you're pulling over people for broken tail lights, you're gonna get more often than you otherwise than you would if you were sampling randomly. You're gonna get people that have warrants. And I think cops use that as a tool in order to do their jobs.
- [82:46]
A
Right.
- [82:46]
B
And now the trick is, on the other hand. On the other hand, I think if we're really to allow that kind of line of reasoning, then, I mean, there are just so many things like you. By that logic, you might as well make cigarettes illegal, because probably criminals smoke cigarettes, and that might allow us to get more people behind bars. And I mean, there are all kinds of actually fairly innocuous things that criminals are more likely to do that would help cops put more criminals in prison, but it would also give cops all of these outsized powers to penalize you for things that actually aren't very bad. That's what bothers me about it.
- [83:27]
A
The difference, though, between those things and marijuana would be that in the case of marijuana, the public has, through the political process, decided that this is one of those things they want to keep on the table. This is what. This is one of the tools they want to keep on the table. Now, again, I'm more ambivalent than a lot of people on my side.
- [83:48]
B
Well, which, which part of the public, like, I mean, it's just decriminalized in New York still, right? Am I right about that or. Yeah, and in a lot of places now, it's. It's legal.
- [83:57]
A
Right. And so, you know, I think it's one of those questions that is probably best left to the political process. And the. The tide is very much changing. And look, there's some research that shows, you know, you can probably legalize marijuana without an outsize impact on other categories of crime. But I do think it's important to keep in mind what you, you know, said earlier, which is that there's a lot of overlap between people who engage in lower level types of crime rates. Seven in ten homicide suspects in Baltimore identified in 2017 had at least one prior drug arrest. So when it comes to the drug war writ large, it's important for us to understand that things like substance use disorders are also very, very much more common in prison settings than they are in the general population. And so, you know, as you kind of expand the scope of behaviors that you're going to decriminalize, you, you minimize those tools. And that's a real public policy problem that we have to have a very, very sober and honest conversation about. Really quick.
- [84:51]
B
Okay, so just a couple more questions before I let you go. I wanted to ask you about bail reform and pretrial detention. This was another big topic in 2020, and a topic where policymakers actually acted on the desires of criminal justice activists on the left. I mean, so there is an obvious case for why bail is cash bail is a problem. It's like the police have arrested me for something. I may very well be innocent. Right. Like, people get it wrong. That's the whole point of the criminal justice system is the presumption of innocence. Until I'm convicted on evidence, I'm not a convict. That's the backbone of the system. Yet I can be put in a jail, as opposed to a prison before my trial happens, and bail can be set at an amount of money that I perhaps can't afford. And this ends up, you know, it seems to have nothing to do with justice. If you're just rich enough to pay bail, you can get out and live your life before your trial. And if you're not, then you're in jail before you've been convicted of a crime, and it seems just like a penalty for the poor. So can you talk about pretrial detention and bail reform and what your perspective on these things are?
- [86:04]
A
Yeah, I mean, look, I'm sympathetic to that critique, to the idea that when you overly rely on monetary conditions on release, that is on cash bail, you can create a situation in which a very dangerous but wealthy defendant gets to buy his or her release pretrial, whereas an indigent but relatively harmless defendant gets stuck behind bars because they can't come up with $500. It's important, again, to sort of back up, understand what the scope of that problem actually is. In places like New York City, which went the furthest than any other jurisdiction in the country. On the bail reform front, it was very, very unlikely that even people who had bail set would end up spending the entirety of their pretrial detention period in jail? Most of them would be out within a few days, if that. Now, again, doesn't mean it's not a real problem.
- [86:52]
B
Was it something like 10% that end up serving the full pretrial detention?
- [86:56]
A
Right. Yes, I think it was even smaller than that. But yeah, that sounds right. So let's start with that reality that the scope of the problem wasn't particularly large, but it is a problem. The question is, how do we deal with it? The answer in New York was, well, let's just basically take cash bail off the table for the vast majority of criminal offenses, and release is now the most common outcome by a much higher percentage than it was before. My answer to this is that I agree that that critique identifies a real problem and that we should mitigate the risk of that happening. I don't think that New York went about it in the right way. The way I would do it is to reorient the inquiry around risk, meaning the risk that an individual defendant poses to the community should they be released during the pretrial period. Meaning that if you are dangerous, you should be held in pretrial detention irrespective of how much money you have in your bank account. And if you are harmless, you should be released irrespective of how much money you have in your bank account. People say, well, what about the presumption of innocence that you mentioned? Right? These people haven't been convicted of a crime. What sense does it make to send them to jail? How is that consistent with notions of due process? And the Supreme Court has spoken to this on multiple occasions. US vs. Solariano is probably one of the most prominent, is the prominent case on this. But basically the idea is, is that a brief, and that's the key word here, brief term of pretrial detention is consistent with the presumption of innocence because there has been some due process. When you are arrested and charged with a crime and you're arraigned, there's going to be a probable cause hearing, meaning that a judge is going to have evidence presented by the prosecution and defended by the defense, and they will make a determination not on. Not according to a standard of reason of beyond a reasonable doubt, but of probable cause, meaning that they have made a determination based on the preliminary evidence before them that more likely than not, you have committed this crime. Now, when you consider the fact that the vast majority of criminal prosecutions and with guilty pleas, you know, I think it should give us some sense of security, that the violation of someone's presumption of innocence is a big issue. Now, why do we talk about bail reform? We talk about bail reform, became an issue because of how long people stand to spend in pretrial detention if they're not able to secure their releases. And that amount of time, whatever it is, in whatever jurisdiction you're in, is entirely a function of resources. It's a function of how long it takes to get a case from disposition or from filing to disposition. One of the things that I don't think gets Enough attention is the degree to which our criminal justice system is underfunded. That sounds counterintuitive to a lot of people who have been told and convinced that spending on police and jails and prisons makes up this huge portion of state and municipal budgets. But the reality is that we have crowded out spending on core government functions to the degree that even in a city as rich as New York, it can sometimes take well in excess of a year for your case to be disposed of to make its way through the system. It shouldn't take that long. That it takes that long is to me the most offensive aspect of this entire debate. And so in addition to approaching this from the perspective that we ought to, that we ought to remand people who pose a significant risk of reoffending during the pre trial period. That kind of reform should be done alongside of a sincere effort to better fund the criminal justice system so that we can attach to that ability to that level of discretion a cap on the amount of time that people actually stand to spend in pretrial detention. Say it's, you know, whatever, four months, five months, so that that time is minimized and then you can get these cases through the system quicker. That means more judges, more prosecutors, more defense attorneys, more court staff, probably more money for jurors. And yeah, I think we would be in a much better world for that.
- [90:46]
B
So why is it that judges are prohibited from considering the danger someone poses when they're deciding whether to detain them pretrial?
- [90:56]
A
So they're only prohibited from that here in New York. New York is the only state in the union, the only state in the union that prohibits judges from considering dangerousness in any aspect of the release decision making process. So not just in deciding whether or not somebody should get released pretrial, they can consider dangerousness in deciding whether and if so, what kind of conditions to place on someone who is being released. So they can't consider dangerous when deciding whether or not to put somebody on an electronic monitor, whether or not to put somebody into a supervised release program. It really is. New York is an outlier in so many different ways on this issue. But the reason is, is because New York continues to operate under the old sort of pre salerno belief that the, the only function of bail is to secure somebody's appearance at court. That, you know, I think is wrongheaded. I think it is perfectly constitutional and reasonable for individuals to be held in pretrial detention on the basis of the risk that they pose to society. They've already right, like there's a probable cause requirement for an arrest that's evaluated. There's a backup judicial finding, a probable cause. We have the data that tell us the vast majority of these people are going to be convicted or plead guilty. So.
- [92:05]
B
So the counterpoint, someone might say, is that a lot of times guilty pleas are, if not coerced, then a result of a defendant being made to fear, strategically being made to fear with whatever the proverbial good cop, bad cop routine and just copying to a crime that they may not have committed. How do we know that that's not behind many guilty pleas?
- [92:30]
A
I mean, there've been some good empirical analyses that have given pretty good estimates of the rates of wrongful convictions. They're like, in the less than 1% range. That I think is one real cue. The other point, too, is like, criticisms of plea bargaining have to understand that the alternative is a system in which everyone goes through trial, which one can't happen just from a pure policy perspective. We don't have the resources to do that. The system would completely collapse. So it's a necessity. That's just an empirical reality. But the other thing is that the greater the percentage of people that take their case to trial. You remember, plea bargains are bargains. A lot of people characterize them as coercions, but people are often getting a deal. There's a reason that people take these bargains. And if those bargains weren't on the table and these people were just going to go to trial, they would go to prison for a much longer period of time. That in the aggregate would actually drastically increase our incarceration rate over time, which is something that a lot of the people who are sort of critical of plea bargaining are against and are motivated by. So there's this interesting kind of incongruity where a world without plea bargaining actually leads to a higher incarceration rate. There's one study I don't know if I cited in the book. I don't think I do. But I did an essay on this issue for Law and Liberty a while back where one of the papers I cited actually did an analysis of what the incarceration rate in North Carolina would look like if they reduced plea bargaining by, I think, 20%. It was like the incarceration rate went through the roof just by virtue of people spending, you know, whatever. It was like a year more incarcerated than they otherwise would have. So, yeah, I mean, those are. Those are real problems. But I don't think there's very strong evidence at all to suggest that the vast majority or even a significant portion of plea bargains are coerced.
- [94:15]
B
All right, what are the prospects of using an artificial intelligence? And to what extent do we already do this? To predict who is likely to offend before a trial, who's likely to recidivate and so forth?
- [94:29]
A
Yeah, I mean, I wouldn't call it artificial intelligence. I mean, you know, I would call it like big data. I mean, we, we do use algorithmic risk assessment tools. Basically, you know, an algorithm, you're asking a set of questions and each of those questions is going to be given a particular weight based on how predictive that particular thing is of risk. And over time you refine it. And some of the algorithms that have been developed are actually really, really good. You know, an evaluation of the algorithmic risk assessment tool that's used here in New York to assess risk of flight, and they wanted to see what it would look like as a predictor of risk of rearrest. I think it was like 0.74 predictive across all racial groups, meaning that about.
- [95:08]
B
70, which is probably better than human judges.
- [95:11]
A
Way better than you. This is the thing, right? Like one of the questions you always have to ask yourself in these criminal justice reform debates. It's like, are you comparing current practice to your ideal that doesn't exist? Are you comparing it to a viable, realistic alternative? Right. And so like the alternative to a world in which we don't use data to assess something like someone's risk of pre trial detention means that we're just relying entirely on the discretion and biases of judges and prosecutors, et cetera, to make these calls based on much less information. And so, you know, I think there's a lot of promise for using things like algorithmic risk assessment tools because they make it a more objective inquiry, it's more transparent, we can refine it over time, we can, you know, study its effects. How does it change the composition of a jail population over time? How does it change the composition of a prison population over time? And if you're worried about over policing, well then why not give police officers the tool to have their deployment, their resource deployment, determined by data informed risk assessments, where they can be more precise to the degree that you agree that policing has costs and imposes social costs on the community that can depress economic growth and the communal morale? Well then you should be. For a system in which the police are as precise as they can possibly be when they swing the hammer that they carry. One way to do that is to use data. And so it's something I would like to see more of it again because it makes the inquiry more objective, it minimizes the collateral damage. I guess it's not really the right word, but you know, it minimizes the impact on people that don't need to feel it.
- [96:51]
B
In your book, you describe a cycle where crime rises. The public and policymakers react to that rise by cracking down on crime successfully. And then crime is low for a while and people get complacent. Roll back those policies that kept crime low and then crime rises again. So where do you think we are in that cycle right now?
- [97:14]
A
Yeah, I think we're at, we're at the tail end of that cycle. We're at the part in which, you know, we are in the midst of somewhat long term process of eroding the institutions that provided a lot of the safety that we've been enjoying for the last 30 years. That process of erosion has been accelerated in the wake of 2020. And I don't think it's a coincidence that we're seeing crime start to move, you know, in the wrong direction really since 2015. I mean, you know, a lot of people kind of pinpoint 2020 as the point of crime rising. But the reality is that 2015, 2016, we saw crime go up across the country. And you know, I think what we saw in 2020 and 21 was really just an extension of that already pre existing trend. You know what I hope, what I suspect and the optimist in me says that each time the pendulum swings past the point of equilibrium, it won't go as far as it went the last time and, or it won't take as long for it to swing back. That's what I hope we see. And I hope that over time, as history passes, we learn from our mistakes, from our past, and that we don't kind of engage in these, in these misguided experiments in the future. But I think we're also seeing that as intelligent as we become as a society, as much information as we have at our disposal, for some reason we seem dumber in some ways and more likely to make bad choices or forget our history. So I don't know. But yeah, I do think we're kind of at that tail end of the cycle where things were relatively safe in the 50s, 40s and 50s. And then post war period, post civil rights movement period, you know, late 1960s, urban crime starts to go up, people start to grow uneasy. Starting in the 70s through the 80s and 90s, we start to see a toughening up of the criminal justice system that then I think in turn provided massive safety benefits that we saw manifest themselves throughout the 90s, early aughts and early 2010s. And now we've kind of been in the process of reversing course. And I think crime is moving in the direction it's moving in as well. So my hope is that again, it doesn't have we don't have to see 2000 murders a year in New York City for us to, to go back to doing some of the things that we know helped us get to the point that we got to in 2017.
- [99:32]
B
Okay, Rafael, before I let you go, can you tell my listeners where to find more of your work and how to follow you on the Internet?
- [99:39]
A
Well, you can follow me on Twitter, Rafa Mangual M A N G U A O. You can follow our work at the Policing and Public Safety Initiative that the Manhattan Institute. I am one of just a few really just awesome people working on these issues here. Hannah Myers, Robert and Charles Lehman. We've got a truly fantastic team. And yeah, I hope your listeners will engage with the book Criminal Injustice. I mean, you can buy it on Amazon, Barnes and Noble, wherever you get your books. But I hope it came through in this conversation. But it was really a sincere effort to bring attention to a side of the debate that I don't think has gotten much attention as of late. And, you know, hopefully it can do some good. Awesome.
- [100:20]
B
Thanks, Ralph.
- [100:20]
A
Thank you, Coleman.
- [100:26]
B
If you appreciate the work I do, you can support me by subscribing directly to my website, ColemanHughes.org and sharing this episode with friends and family. As always, thank you for your support.