Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Coming up on the show today, City Journal's Seth Barron joins Manhattan Institute Fellow Rafael Mangual to talk about the disturbing leftward shift among urban prosecutors across the country. Over the last five years or so, cities from New York to Philadelphia to Chicago have elected a new generation of prosecutors. Prosecutors that are dedicated to reducing punishment for crime, increasing oversight on police, and dismantling mass incarceration, among other policy goals generally ranged under the social justice cause. If you want a recent example of the widening rift between big city police departments and local prosecutors- earlier this week, Chicago's newly elected state's attorney announced her office would drop all charges against Jussie Smollett, the actor accused of staging his own hate crime assault, which led to a weeks-long investigation by police in addition to a media frenzy. After the announcement, Mayor Rahm Emanuel stood with police Superintendent Eddie Johnson and denounced the decision. But regardless of that particular case, the consequences our nation's cities of this shift among prosecutors could mean a lot of trouble ahead. That's it for me. The conversation with Seth and Rafael begins after this.

Seth Barron: Hi everyone. Welcome back to 10 Blocks, the official podcast of City Journal. This is your host for today Seth Barron, associate editor at City Journal. Rafael Mangual is Deputy Director of Legal Policy at the Manhattan Institute and a fellow. His latest piece for City Journal is called "'Justice' for whom: left-leaning urban prosecutors are working to undo the success of the crime-fighting revolution." Thanks for joining us, Rafael.

Rafael Mangual: Oh, my pleasure, Seth. Thanks for having me.

Seth Barron: So what was the crime-fighting revolution?

Rafael Mangual: Well, the crime-fighting revolution is what New York City saw happen throughout the 90s into the early 2000s. I mean, you know, I think people forget just how bad things were, in the early 1990s in New York. I mean, you couldn't go anywhere without being confronted with just rampant crime and disorder. Subways were covered in graffiti, murders were up in the 2000s per year, there were more than a 100,000 robberies in the city. I mean, it was just absolute mayhem and you know, within just a decade, things completely turned around, and I think this was largely due to a combination of things. Most notably probably the adoption of a broken windows approach within the New York City Police Department. But that was also coupled with, you know, really sort of much harsher incarceration practices then what are considered, popular, or you know, palatable today.

Brian Anderson: Okay. So what are urban prosecutors doing now that could unwind these successes?

Rafael Mangual: Well, it's interesting. Urban prosecutors, now are talking like defense attorneys. There's been this really rapid shift among big city prosecutors really in the last few years. And I think what it traces back to is Robert McCullough's apparent failure to indict Darren Wilson who shot and killed Michael Brown in Ferguson, Missouri in 2014. You know, this obviously caused a serious uproar and you know, when no indictment was brought against Darren Wilson, who by the way was subsequently cleared by a Federal investigation, but that didn't matter. And what you saw was this really just kind of a transition in terms of, you know, the political attention paid to prosecutor races. And within a couple of years, you had really sort of progressive, left-wing folks who were, you know, campaigning on ending mass incarceration and lowering sentences and essentially going softer on crime. And so what you've seen now is for example, in Boston, you've got Rachel Rollins, she campaigned on ending prosecutions for a series of minor offenses. I think she put out a list of 22 offenses that she will no longer prosecute. In Manhattan, you've got Cy Vance who says he's going to stop prosecuting marijuana possession, fare evasion. Chicago's Kim Foxx went, you know, kind of all in on so-called restorative justice. In Philly, Larry Krasner, he wants to even lower sentences for violent crimes, which, you know, he at least is honest enough to acknowledge is what really drives the incarceration numbers in this country. So it's just really, both interesting and a little scary to see how quickly there's been a shift among urban prosecutors across the country, in big cities.

Seth Barron: Well, reformers in New York City, say that the jails are crowded with people who are being held on minor charges. So is the problem with the laws or how they're being enforced.

Rafael Mangual: Oh, it's certainly with how they're being enforced or not enforced in this case. You know, it's really, it's interesting because there's only so much that police can do. And in a city like New York, they seem to be doing a pretty good job of identifying the folks who, you know, who pose a risk. You know, and, and there was this kind of synergy with prosecutors and deciding who was going to get the most attention in the form of time served. And, you know, for the most part, you know, only about 10% of the people that the NYPD arrest end up serving any time in jail and only about 2% go to prison. But, in the past couple of years, what we've seen is just a sort of broader scale attempt to frustrate the efforts of the NYPD, by going even softer on the criminals that they're bringing before the justice system.

Seth Barron: Well, so Rikers Island is the primary jail for New York City, who's there? Like, who are the people in Rikers? Are they kids who got arrested because they were smoking weed? Are they people who were drinking on their stoop?

Rafael Mangual: Absolutely not. This is one of the biggest misconceptions about the criminal justice reform debate, especially in cities like New York. There's this idea out there that the people who are, you know, crowding our jails and prisons are these, you know, unfortunate, just really unlucky low level offenders who never did anything else wrong and just happened to get caught that one time doing something silly or stupid like smoking pot or drinking in public or hopping a turnstile and that's just not the case. You know, we've actually got some data on who's in Rikers Island, right? For example, 91% of the pre-trial population, in that jail is held on a felony charge. 49% of them on violent felony charges. Over half of the jail population is facing most, more than one case. And most of the jail population, I think the average percentage of the jail population who has been there before is 75%. Historically, these are not people who just need a second chance. These are people who have had second, third, fourth, fifth chances, and have proven themselves to be chronic offenders or serious violent criminals. That's who's in Rikers Island and you know, to mislead the public and create the impression that the people behind bars in this city are these just kind of unlucky kids who, who got caught with a little bit of pot is just, it's really unconscionable. Especially because we already do such a really good job of sort of focusing those crucial resources on really what amounts to the worst of the city's worst. I mean, like I said, again, only 2% of NYPD arrests result in a prison admission and only about 10% result in a jail admission. Here in New York City, that's, that's pretty good for a city of 9 million people. And you know, over again over 20 years, the Riker's population has been essentially cut in half. You know, it just doesn't make sense, the way they're arguing their case.

Seth Barron: But with crime low historically in New York City, why are there so many people in jail?

Rafael Mangual: Well, I wouldn't, I would kind of push back against the idea that there are so many people in jail. I mean the New York City jail population's only about 8,000 people. This is a city with almost 9 million people. So, I don't think that that number reflects a particularly large or troubling number of incarcerated folks. And I think it actually does quite well in terms of reflecting the lower crime rates compared to the 1990s when the Riker's population was probably double what it is today.

Seth Barron: But when we talk about the people in jail, there's a tendency to dehumanize them. But these are people are innocent, right? I mean that's the way our system works. They're in jail because they're not guilty. They are awaiting trial.

Rafael Mangual: That's certainly true for a portion of the Riker''s population who's awaiting trial, but what you have to realize is that there's a significant portion of the Riker's population who's actually already been sentenced and are serving a term of not imprisonment but incarceration in jail. So, you know, if you are convicted of a felony offense and are only, are getting less than a year, in terms of time that you have to serve or if you're convicted of a misdemeanor for which the term of incarceration is less than a year, you're actually going to be spending some time, spending that time in Rikers Island and not upstate in a New York state prison. So I think first you have to kind of disaggregate the part of the Riker's population that's there serving sentences for crimes that have been adjudicated. There's another portion of the Riker's population that are actually prisoners who are transitioning out of their sentences, from upstate prisons or are being held in Rikers while they are going to court, that sort of thing. So, you know, there really is only a small portion of the Riker's population and not a small portion, but the portion of the Riker's population who's being held pre-trial is not as it's not the entirety of the population and it's not as big as I think as people think it is.

Seth Barron: There's a movement now to eliminate cash bail. So for the people who are awaiting trial, they haven't been convicted. They're not waiting to go upstate. They're not serving out their sentence. That's still thousands of people and they're basically just at Rikers because they're too poor to pay their bail. So why is it that people who are rich don't have to sit in jail and people who are poor, do have to sit in jail? Isn't that unfair?

Rafael Mangual: Yeah. I mean when you put it that way certainly, you can make the argument that it's, that it's not fair. And, you know, in a state like, in a city like New York where judges can't actually consider the public safety risks posed by a defendant, I actually think that's a reform worthwhile, which is that I think judges should be allowed to consider this because I do think it should be, you know, in pre-trial incarceration should be based on more than someone's ability to pay. But no, I just don't think that the data support that there is a large number of people in pre-trial detainment who just can't afford their bail. I mean the pre-trial population's average stay is not all that long. They usually, you know, plead down and are out in a few days. That's not really what's driving the population there, which I think again, we've already done a pretty good job of cutting down on to the extent that that's a goal we be pursuing. I certainly don't think that's a goal we should be pursuing for its own sake. But that's another argument.

Seth Barron: Now King's County District Attorney Eric Gonzalez came out with a big report recently, which you've read and written about. What, can you tell us about his report and what he suggests?

Rafael Mangual: Well, you know, what I can tell you is that the report is just based on some really fallacious thinking, I think and, and some misguided assumptions about, about what incarceration looks like. You know, one of the things that really jumped out at me is this idea that New York City is contributing to mass incarceration, which, you know, again, just to reiterate, I mean just is not supported by the data when you've only got 2% of NYPD arrests resulting in an imprisonment. I think that's already an indication that we're focusing those crucial resources on the right people. But you know, another example of the kind of misguided assumption that underlies the report is his claim that incarceration in New York City destabilizes families and, and has failed historically to make us safer. I mean, these things just, you know, either depend on really kind of interesting assumptions or just aren't true. When it comes to the destabilization of families claim, for example, I mean, one of the biggest assumptions that underlies that is that the people being incarcerated would otherwise be positive forces in their communities and in their households. And, you know, there's no supporting evidence to suggest that in, in Gonzalez's report. And you know, I think that's an important thing to ask about because for example, one study that was published in the Journal of Childhood Development found that when you have a parent in the household who engages in high levels of antisocial behavior, which I think you can safely categorize a decent number of the people in Rikers island for example, as falling into that psychologically antisocial category that the impact on their families is actually significantly worse than, for example, the absence of a prosocial father, which seems to be the assumption underlying Gonzalez's claim, which is that, you know, it would hold true if, and really only if, a significant portion of the number of people incarcerated in New York City are psychologically prosocial. But I, I don't think, I think that's a hard leap to make. And as for whether incarcerations made us safer historically, I mean, you know, the sentencing project, for example, which is no fan of mass incarceration, a big critic of the use of incarceration and, you know, their scholars have long advocated for lowering the incarcerated population in cities across the country. In a 2005 report, they admitted that incarceration was responsible for about 25% of the crime decline throughout the 1990s. You know, so this idea that it didn't make us safer, that there's no benefit to incarceration, just doesn't hold true. I mean, what I think is really behind is just this sort of strategic decision to ignore the incapacitation benefits of incarceration. The other reality is that when someone's behind bars, they can't hurt anyone and you know, we ignore the consequences in this debate, of what it will mean to start letting these people out. And, you know, New York City's actually had some interesting recent examples of this, right? There was the Edgar Garcia case in the Bronx. This was a 16-year-old kid who, you know, who shot at some rival gang members on a crowded street in broad daylight, in the Bronx. Bullets whizzing past, you know, a little girl's head and the girl wasn't much bigger than the backpack she was carrying. I mean, it was just really crazy and that kid's out on bail right now. I mean he's free and his case is actually may even get transferred into family court and he may be tried as a juvenile. I mean, you know, when you have things like that happening that that reality is just intentioned with the claim that New York is this sort of mass incarceration state. There was the subway shooting on the 7 train on Superbowl Sunday. The perp who they arrested for that it turns out was actually out on bail for a significant indictment, just a couple of months earlier. There was another case of this kid named Frank Valencia, who was 17, turning 18, was caught with a handgun, 300 rounds of ammunition, a machete, brass knuckles, the whole deal. Was arrested, given youthful offender status and probation and then a week after his release, he shot a female police officer in the face at point-blank range. Thankfully the officer survived and he was eventually convicted as an adult because he was 18 after that week had passed. But this idea that there's no downside to decarceration, really makes me nervous and I think it should make everyone else nervous too.

Seth Barron: Well, New York City under Mayor de Blasio in the last five years has stepped, walked back a lot of its previous strategies on fighting crime. And you could argue that broken windows policing and proactive policing in the way that were pioneered before de Blasio are kind of over. But crime hasn't gone up. So doesn't that indicate that broken windows policing and all of those intensive strategies, they didn't work? They were, it's a myth.

Rafael Mangual: No, no, I don't think that's the right conclusion to draw from this, although I think that's exactly what, people like Eric Gonzalez would have you believe. But the reality is that we are still experiencing the benefits of the policing revolution that took place in New York. We're also still experiencing the benefits of the harsher incarceration practices for serious violent offenders that New York still practices. You know, over the course of time where New York lowered its prison population, New York state, it also started increasing the amount of time served for violent offenders and so there are sort of lag benefits to those longer-term incarcerations where people are not coming back into the community. Also, New York City has just changed quite a lot since the 1990s. So the dynamic on the streets, even in the outer boroughs is much different than it was in the early 90s. Our population's much, bigger, it's much denser. Things like drive-by shootings are much less common. And a big reason for that is because the broken windows policing revolution really pushed the outdoor drug market indoors and underground, which one took targets off the street and help drive, you know, the, the decline of shootings and murders, but also made public spaces more attractive to development and investment that we now see. And so, you know, it's much harder to take public spaces over once they've been sort of occupied and developed by the law-abiding portion of the public. You know, unfortunately, however we do, we are seeing some kind of troubling indicators that the walk back from this may start going a little too far. The NYPD for example recently announced an initiative to sort of pay closer attention to six precincts throughout the city. I happen to live in one of those precincts and I can say in my personal experience, the sort of sense of public disorder has gotten grimmer in the past few years. And, you know, I think we walk away from those practices that help sort of dig us out of the hole that we were in in the 90s at our peril.

Seth Barron: Well, one final question. Black and brown people are 90% of the jail population in New York City and that's a really striking number. So doesn't that prove that racism is baked into the system?

Rafael Mangual: No, no. It doesn't and you know, the reason it doesn't is because all you have to really do to understand that is just control for crime and who commits crime in New York City. And the unfortunate reality is, is that a significant portion of the most serious crimes that for which people are incarcerated in New York City are committed by black and brown men mostly. You know, this is, it's a sad reality and you know, I don't pretend to have all the answers in terms of what to do about it and what, how to change that. But police have to respond to crime and where the crime is and that's where the resources for law enforcement should go. And, you know, so long as, as black and brown men are contributing to a significant proportion of the serious and violent crime in places like New York City and all over the country, unfortunately, that reality is going to hold for a while.

Seth Barron: Wow. Those were some challenging perspectives you've offered us, Rafael. Well, don't forget to check out Rafael Mangual's work at city-journal.org. That's city-journal.org. We would love to hear your comments about today's episode on Twitter @CityJournal #10blocks. Lastly, if you like our show and want to hear more of it, please leave ratings and reviews on iTunes. This is your host, Seth Baron. Ralph, thank you so much for joining us today.

Rafael Mangual: Thanks so much, Seth, pleasure.

Seth Barron: Thanks for joining us for the weekly 10 Blocks podcast featuring urban policy and cultural commentary with City Journal Editors, contributors, and special guests.