A Smarter, Bipartisan Approach to Criminal Justice Reform

The debate over the role and policies guiding our police, courts, and prisons did not start with the deaths of George Floyd and Breonna Taylor in 2020. Activists and policy wonks have been debating major changes for decades. But to understand the current political and cultural moment that Rafael Mangual criticizes in his new book, Criminal Injustice: What the Push for Decarceration and Depolicing Gets Wrong and Who it Hurts Most (Center Street, 255 pp., $29), it helps to first look to how four decades of U.S. crime policy got us here.

The bad old days

Those old enough to remember the 1980s and 1990s witnessed a nadir of American urban life. Bloody crime stories seemed to lead every news broadcast, movies like Robocop and Escape from New York portrayed dystopian near futures of hollowed-out metropolises run by murderous psychopaths.

Artists like Grandmaster Flash, Too $hort, and Ice-T used a burgeoning street sound called Hip Hop to tell current stories of joblessness, addiction, and violent gang life in American cities. National politics of the era — from President Reagan’s revamping of Nixon’s War on Drugs to the 1994 Crime Bill spearheaded by then-U.S. Senator Joe Biden — reflected what seemed to be a national and bipartisan consensus for law and order. The infamous Willie Horton ad that blamed Massachusetts Governor Mike Dukakis for grisly crimes committed by a released prisoner reaffirmed the political fealty to tough-on-crime policies and implied that the face of crime was Black.

America’s violent crime problem was real, despite the fact that the Horton ad played to racial fears. More cops and prisons were — to many across the political spectrum and irrespective of racial identity — the obvious policy solution. In the decades since, American urban centers became much safer and richer, with predominantly white wealth moving back into the cities from the suburbs, bringing new problems of gentrification and displacement. The reasons for the great crime decline are hotly debated, though many books and research papers of varying quality have tried to explain it.

As crime declined precipitously, however, arrests and incarceration continued to mount. The long-derided cannabis legalization movement gained momentum in the early part of this century, in part, by showing that police arrested millions of Americans on simple possession charges. Millions of people smoked weed without falling into a life of crime driven by addiction and despair, as D.A.R.E. counselors had warned American schoolkids two decades before. Horror stories of nonviolent drug offenders doing decades in prison or even serving life sentences put the effects of the Drug War into stark perspective.

Michelle Alexander changes the debate

In 2010, the policy game changed with the publication of Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Criminal justice reform, which in D.C. policy circles had been an issue with moderate interest with a primary focus on reducing extraordinarily long drug sentences, began its ascent as a key issue in American politics. The book became a bestseller and a zeitgeist of public policy interest that would soon draw in some of the biggest names in political fundraising from both the progressive left and libertarian right and, eventually, titans of Silicon Valley and corporate America. Alexander’s provocative thesis—that the U.S. penal system was a new colossus of racial oppression—hit the ever-sensitive nerve from America’s original sin: race-based chattel slavery.

The book and the moral force it stoked were not the only motivations for reform — particularly in traditionally red states like Texas and Georgia that were trying to rein in runaway prison budgets — but it was a powerful one. The book’s theme of persistent racial injustice coincided with the growing chorus calling for change in how policymakers view incarceration. And in the broader sense, whether racially motivated or not, the “nonviolent drug offender” doing years of hard time became the poster child for a carceral system run amok. Stalwart conservatives, former prosecutors, and even old drug warriors were coming to the table to discuss reducing the number of Americans in prison.

The killing of Mike Brown widened the scope of reform

To this point, the most prominent reform efforts focused on harsh sentencing and liberalizing drug laws. Although libertarians aimed the Drug War writ large, and a growing number of blue states were experimenting with liberalizing cannabis laws, national reform efforts focused on how long a “just” sentence was.

In August 2014, an unarmed Black teenager named Mike Brown was shot and killed by police officer Darren Wilson in Ferguson, Missouri — a suburb of St. Louis. Brown’s killing sparked outrage in the community and garnered national attention as demonstrations quickly grew and escalated with massive police response. Activists and protestors chanted, “Hands up! Don’t Shoot!,” echoing a witness account that Brown had surrendered when he was gunned down. Racial divisions quickly became apparent in the local and national reactions to the protest and unrest, as people criticized actions of the Ferguson and greater St. Louis area police departments in real time.

After an unusual presentation by the county prosecutor’s office–one that effectively provided a defense rather than the typical one-sided presentation a prosecutor levels against a target — a grand jury declined to indict Wilson for Brown’s death. Given the state of the law and the evidence available, this was almost certainly the correct legal decision. Still, the behavior of local officers at the scene and officials afterward revealed a deep contempt for the protestors and gave credence to the patterns of injustice activists alleged.

In March 2015, the U.S. Department of Justice released two reports about the events in Ferguson. The first, which dealt with the case against now-former Officer Wilson, concluded that there was insufficient evidence to charge him with federal crimes in Brown’s death. The report also could not substantiate the claim that Brown had his hands up when Wilson shot him. While conservative commentators hailed these findings as evidence the protests and outrage were much ado about nothing, the second report was a scathing indictment of the Ferguson Police Department. The report documented racial bias and a police force more concerned with feeding municipal coffers at the expense of Black citizens than maintaining public safety.

Police — and to a lesser extent, local prosecutors — came under greater public scrutiny in the national push for justice reform due to Ferguson. The revelations of Ferguson, it turned out, were not unique. While other police departments were not necessarily gouging their citizens through excessive enforcement to generate revenue — though some were — most big protests came alongside longstanding grievous complaints about police in that city, most often from Black neighborhoods. Police abuses, lack of accountability, and problem officers that used to be only locally notorious became national headlines.

A series of experiments with ‘smart on crime’ policies

In recent years, policymakers at every level of government across the nation have made changes to address the growing calls for reform. As I already mentioned, states like Georgia and Texas were finding ways to reduce the number of citizens behind bars and simultaneously lower their crime rates. Old tough-on-crime prosecutors of both parties were voted out of office and replaced with new faces that promised significant change in prosecution policies. President Obama commuted the sentences of hundreds of nonviolent drug offenders in a partial resurrection of the much-maligned executive pardon power. New York Mayor Bill de Blasio ended the City’s fight against an NYCLU lawsuit challenging the “stop and frisk” program that — according to the NYPD’s own numbers — resulted in the stops of four million individuals over its most active ten years, most of whom were innocent Black and Hispanic men. All these changes and more came during the violent crime decline without any real signs of a trend reversal.

Authors like Patrick Sharkey and John Pfaff warned that the two-decade drop in violent crime couldn’t last forever and that reformers should prepare for that eventuality. Some certainly did, but when preliminary data showed spikes in homicides in certain American cities, the immediate reaction of too many commentators was denial or downplay rather than recognition that something had changed.

Although nowhere near the rates of the 1980s and 90s, the increase is real, and reformers should not run away from that. The fear of crime has returned to the voting booth — as evidenced by the election of tough-on-crime New York Mayor Eric Adams — but rising crime is a legitimate public policy concern irrespective of what it may portend for any given election.

Rafael Mangual: An emerging voice for the old guard

Into this milieu, the Manhattan Institute’s Rafael Mangual submitted his debut book, Criminal Injustice. Eminently accessible to the lay reader, Criminal Injustice has made a splash because Mangual has gathered a trove of information that — as the title suggests — pokes holes in some of the arguments used by advocates of decarceration and depolicing.

But Mangual’s argument misses much of the context of the criminal justice reform debate laid out above, and, in doing so, oversimplifies the complaints and demands of reformers across the spectrum.

Viewing criminal justice reform through a partisan lens places the issue back on the Democratic side of the political column, erasing years of effective policy change in deeply Republican states.

Despite the wide chasm between mainstream Democratic officeholders and the leftist activists who often protest against them, Mangual barely distinguishes between them, conflating the two factions as if they are on the same side. By blurring these lines, Mangual plays into a counterproductive and deeply misleading partisan narrative that pits pro-police Republicans against anti-police Democrats. Irrespective of which policies one supports, the idea that policing is a partisan issue is highly corrosive to the legitimacy of police as a public institution, particularly given the politics of the individuals bad policing hurts most. Moreover, viewing criminal justice reform through a partisan lens places the issue back on the Democratic side of the political column, erasing years of effective policy change in deeply Republican states. As such, Mangual’s book is much more a work of criminal justice politics than a guide for crafting useful policy.

Distinguishing between use of force and police violence

Mangual focuses much of his policing argument on how certain reform proposals do not reduce officer uses of force, particularly deadly force. Given the headline-driving incidents of police violence that killed George Floyd, Breonna Taylor, and Mike Brown, it is reasonable to assume that most reformers would consider minimizing such tragedies a priority. And Mangual is right, in some respects, that many people unfamiliar with policing think uses of force to restrain or incapacitate suspects — punching, chokeholds, tasers, shooting, and the like — are more common to everyday police work than they are. But Mangual limits his definition of the problem by excluding much of what a layperson would consider force or violence.

Take, for example, Mangual’s criticism of Radley Balko and those who have written extensively about the overuse of special weapons and tactics units (SWAT). Under the subchapter headline “‘Militarization’ Isn’t Driving Use of Force,” Mangual argues that “militarization” is overblown because SWAT raids rarely end with bodily injury, let alone the death of suspects, officers, or innocents.

Manugal writes, “There is no denying that SWAT teams have indeed become more prevalent and more commonly used across American police departments over the last several decades,” but that the relatively few shootouts and deaths “seem to suggest they account for an infinitesimal share of serious police uses of force.” And as he does throughout his book, Mangual admits that when police screw up, the consequences can be horrific. But in the main, his argument goes, SWAT is a safe way to utilize police resources.

But Mangual glosses over the terror of dynamic entry — the term for heavily armed officers breaking down doors and holding every living creature inside at gunpoint. While not a “use of force” in the sense that George Floyd and Mike Brown were killed in use-of-force incidents, most people would consider police seizing control of their homes in this way as “serious uses of force” that may inflict trauma even without physical injury.

The author is open to raising the evidentiary standards for “no-knock warrants,” which allow SWAT to break down doors without warning, but is silent on SWAT’s use of “knock and announce” raids. In either case, Mangual’s myopic view of force further reflects a broader thematic problem: he ignores or minimizes the indirect social costs of over-policing rather than confronting them and weighing them against putative benefits. That police departments all over the country employ dynamic entry for SWAT for anything but the most dangerous situations reflects, on their part, an institutional lack of respect for the sanctity of homes and the well-being of individuals they swear to protect and serve.

Having it both ways on the drug war

Nevertheless, Mangual is undeniably correct that most people currently incarcerated at the state level — and most inmates in prison — are in for violent offenses. Though “violent” can sometimes be misleading — carrying but never using a gun during another offense, like felony drug purchases, often qualify — there is a widely held but incorrect belief that most people in prison are there for nonviolent drug offenses. Some of the blame for this misconception lies with The New Jim Crow, a political book in its own right. But libertarians and progressives have long over-focused on the Drug War as a driver of mass incarceration. John Pfaff’s excellent book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform takes a sober look at the data to show who is in prison and why. The numbers are unambiguous that most people in prison are there for convictions for crimes of violence.

However, Mangual takes the implications of these data too far. First, on the federal level, drug offenses are a major driver of incarceration, and many of those sentences are too long. While it is true that drug sentencing is overstated in the mass incarceration debate— because most incarcerated people are in local jails and state prisons — the drug issue isn’t totally misplaced because it is one of the most relevant issues for our national government to address. For better and worse, drug prohibition and its priority in federal policy will naturally take up a lot of space in and around the halls of Congress.

Second, and far more troubling, is Mangual’s defense of using drug enforcement as a proxy for violence reduction. Part of his argument seeks to justify the disproportionate number of Black and Latino drug arrests relative to white arrestees:

Like other police enforcement activity — resource deployment, pedestrian stops, arrests, and so forth — drug arrests are often effected in service of an end not clearly tied to use or distribution rates. That end is violent crime reduction.

Because young Black men, in particular, are far more likely to die by violence, the argument goes, enforcing drug laws primarily in Black neighborhoods under the highest threat of violence is an indirect way to arrest and thus incapacitate violent criminals. Mangual cites Pfaff and others who show correlations between drugs, violence, and recidivism among incarcerated and formerly incarcerated individuals. But Pfaff’s work also showed that people who are arrested for drug offenses and those serving time on drug charges are vastly different populations.

Not only is there little empirical data to support the hypothesis that low-level drug enforcement reduces violence, the theory effectively justifies using drug laws as a tool of racial control. I was not expecting Mangual to effectively endorse The New Jim Crow’s thesis.

Nevertheless, it’s striking to deny the existence of institutional racism in the same chapter that he defends how an institution applies certain laws differently to Black people. Equal protection under the law does not have a “for their own benefit” exception.

A drug arrest can cause missed shifts and termination from legitimate employment; it can close off access to public benefits like housing and student aid; and it may risk the loss of cars or homes, depending on local forfeiture laws and policies, before one even considers the actual punishment for the crime. These collateral consequences and even short-term incarceration can further destabilize already at-risk individuals, bringing them closer to — not further from — illicit economies and future criminal behaviors.

Compounding existing problems with over-policing

Just as focusing on deaths from SWAT raids or other policing misses the myriad other ways they impose costs on individuals, the fact that most drug offenders don’t serve long sentences obscures the dramatic economic and social costs that can accompany drug arrests.

A drug arrest can cause missed shifts and termination from legitimate employment; it can close off access to public benefits like housing and student aid; and it may risk the loss of cars or homes, depending on local forfeiture laws and policies, before one even considers the actual punishment for the crime. These collateral consequences and even short-term incarceration can further destabilize already at-risk individuals, bringing them closer to — not further from — illicit economies and future criminal behaviors.

Even we accept Mangual’s suggestion that a pretextual use of drug enforcement reduces violence, we must reckon with the personal costs to the many people brought into the criminal justice system. Mangual’s justification for drug enforcement implies that many would not be caught but for the violence they live near. And that nearness is a remnant of the racial geography of many American cities. Without a more robust cost-benefit analysis of such pretextual law enforcement, it’s very hard to see how further destabilizing people close to violence is sound public policy.

Rationalizing racial profiling instead of interrogating policy efficacy

The weakest arguments in Criminal Injustice involve New York’s Stop and Frisk program : or as Mangual likes to call it, “Stop, Question, and Frisk” (SQF). The failure is two-fold.

First, Mangual spends many pages hypothesizing that young Black and Hispanic males’ tough-guy attitudes and attire choices can draw the attention of police, thereby leading to disproportionate police-initiated contact that he labels “false positives.” That is, police wrongfully target innocent Black and Latino boys and men because they project a persona that mimics or resembles that of criminals. To be polite, such conjecture is unsupportable on the evidence he presents — one psychological paper and his recollections of childhood. If anything, such evidence suggests the behavioral cues police use to initiate SQF are so common among these populations that they should cease immediately.

Second, and stunningly, Mangual explicitly speculates there was widespread falsification of official documents that counted the four million individuals caught up in NYPD’s SQF program. He writes:

“In the two years that followed the [court-ordered reduction of SQF], the number of stops reported by NYPD officers declined sharply, going from more than 680,000 in 2011 down to about 12,000 in 2016, all while crime continued to decline.”

He then suggests that incentives made NYPD officers overreport contacts not only “erroneously if not purposefully” but also “fabricating” the required UF-250 stop forms because of the difference in stops before and after the court decision has not been so large over that time.

Rather than acknowledge that officers probably over-applied SQF policy in line with departmental goals, Mangual uses rampant misconduct to defend police officers’ actions: a suggestion that raises far more questions than it answers about the trustworthiness and competence of the NYPD. I, for one, hope and believe NYPD officers were not falsifying and misidentifying 56 stops for every legitimate one they performed. It is concerning that Mangual believes that hundreds or thousands of officers filing bogus reports in response to policy is an effective defense of the NYPD’s conduct.

Both failures, however, ignore the simpler and far less troubling explanation for how SQF got out of control: The NYPD weaponized the officer safety exception in the 1968 Supreme Court case Terry v. Ohio to get guns and drugs off the street. Former Mayor Mike Bloomberg admitted as much when he was running for president: “I inherited the police practice of stop-and-frisk, and as part of our effort to stop gun violence, it was overused.”

Cops in Black and Hispanic neighborhoods sought contraband, and Terry allowed police to approach and question individuals when they had an articulable suspicion of imminent wrongdoing. The potential for abuse was clear to the Supreme Court, but policymakers ignored its warnings as Terry became the basis for aggressive police tactics. As Chief Justice Earl Warren noted:

The President’s Commission on Law Enforcement and Administration of Justice found that ‘in many communities, field interrogations are a major source of friction between the police and minority groups.’ It was reported that the friction caused by ‘misuse of field interrogations’ increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not really evident.’ While frequency with which ‘frisking’ forms a part of field interrogation practice varies tremendously with locale, and the particular officer, it cannot help but be a severely exacerbating factor in police-community tensions.” Terry v. Ohio, 392 U.S. 1,(1968) fn 11, at 15, internal citations omitted, emphasis added.

In other words, NYPD’s SQF was not some sort of aberration or machismo-induced false-positive reaction by police officers on patrol. It repackaged old policies that have long irritated minority communities and damaged their relationships with police officers.

Mangual recognizes that policing in poor minority neighborhoods is different than in affluent white ones, where SQF does not occur. That neighborhoods have different needs is not by itself damning. Rather, because our cities remain largely segregated — in fact though not by law — how police treat different areas may dramatically change how people of different races experience policing.

These abuses of the law are by no means limited to New York. A concurrence in the D.C. Circuit Court of Appeals in a case called U.S. v. Gross (2016) put the situation very well, discussing the tactics of the D.C. police department’s Gun Recovery Unit (GRU):

As a thought experiment, try to imagine this scene in Georgetown. Would residents of that neighborhood maintain there was no pressure to comply, if the District’s police officers patrolled Prospect Street in tactical gear, questioning each person they encountered about whether they were carrying an illegal firearm? Nothing about the Gun Recovery Unit’s modus operandi is designed to convey a message that compliance is not required. While viewing such an encounter as consensual is roughly equivalent to finding the latest Sasquatch sighting credible, I submit to the prevailing orthodoxy, but I continue to reject its counterintuitive premise…

With the guise of voluntary consent stripped away, the reality of the District’s regime is revealed. It is a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects. If the Fourth Amendment is intended to offer meaningful protection in the context of Terry stops, the voluntary consent exemption cannot be used to engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol.

The author of the concurrence is Judge Janice Rogers Brown, a now-retired judge who no knowledgeable person could ever mistake for “woke.” Indeed, Judge Brown never mentioned race once in her opinion. But the GRU tactics at issue were being used in the poor Black areas of D.C., and her thought experiment placed them in the posh, predominantly white residential and shopping district of Georgetown. SQF and GRU tactics constitute separate and unequal policing; one doesn’t need a bleeding heart to recognize that.

Though Mangual is correct that removing police from areas more prone to violence is the wrong approach, he rationalizes the most notorious police policies that have antagonized minority communities for decades. Targeted policing can be effective in crime reduction, but that gets lost in Mangual’s defense of the indefensible. Visible police presence can deter crime without consistently violating the rights of young Black and Hispanic men as policy.

Choosing politics over better policy

That we have poor minority neighborhoods is evidence of the structural and institutional disadvantages that have long existed in our country, and that’s not the fault of today’s cops on the street. Nevertheless, it is a reality that the best policing policymakers understand when confronting community crime and police behavior concerns.

“You cannot reform this!” is a common refrain among police abolitionists, particularly after a new example of police abuse. And working anywhere near the system, it’s a very tempting sentiment given the countless stories one learns about that rarely make headlines.

But just since the beginning of the 20th century, urban policing specifically has shifted several times: from a job of expressly political patronage to certain uneducated immigrant populations; to the establishment of apolitical public institutions, with poorly paid officers too often subject to low-level bribery and widespread corruption; to professional organizations whose officers few Americans would ever consider to bribe to look the other way. Police organizations — like the governments their officers represent — have always had glaring flaws, and not all of the changes over the years have been positive. But history undeniably shows that police reform is possible.

At the same time, not everyone caught up in the system is Jean Valjean, Victor Hugo’s hero driven to crime by desperation who just needed a second chance and money to become an upstanding citizen. There are some people who, for various reasons, are dangerous to themselves and others, who ought to be removed from society after criminal conviction. But the beat cops I’ve talked to have said that even in “bad” neighborhoods, a relatively small number of people commit most of the serious crime. Perhaps the larger problem is the officers’ assumption is not what’s guiding most current policing policies and practice.

Unfortunately, Mangual criticizes constructive ideas for reform, and broadly defends abusive police behaviors, while greatly overstating how much reform has been a left-versus-right issue. Although he tries to make his case by centering the most vulnerable communities, he fails to take many of their longstanding complaints seriously, thus removing critical insights to crafting better policy. Mangual is right that most Black and Hispanic folks aren’t police abolitionists and want responsible police presence, but you don’t have to be an abolitionist to recognize the real problems that got people shouting in the streets in the first place.

Criminal Injustice is a missed opportunity to stake out a smarter, more bipartisan way forward to craft policing and crime policies. Reform is possible. Policymakers can both improve public safety and protect the personal security of the most vulnerable members of our society.