Editor’s note: Rafael Mangual submitted testimony to the Presidential Commission on Law Enforcement and the Administration of Justice.
Misleading Narratives About Incarceration, Prosecution, and Policing: Drivers of the Decline in Respect for Law Enforcement and the Rule of Law
Commissioners, Attorney General Barr, and distinguished members of the Commission, I would like to thank you all for the invitation to deliver remarks here today on what is a deeply important topic. My name is Rafael A. Mangual, and I am a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, where I have worked since 2015, focusing mostly on issues relating to criminal justice.* While my remarks will draw heavily on the work I have done while at the Manhattan Institute, my statement here today is solely my own, and not that of my employer.
Today’s topic—the diminishing respect for law enforcement and the rule of law—is one that is dear to my heart. It’s also one I have closely observed as a writer. The title of the hearing actually describes a trend. That trend seems to me to be the product of false or misleading narratives about incarceration, and policing in the United States. That those narratives are false or misleading is itself a serious problem. But that problem has been compounded by the fact that those narratives are informing meaningful political action (illustrated in part by the growth of the so-called “progressive” prosecutor movement), which has resulted in consequential changes in public policy—both through and outside the political process. The stakes involved in pulling these policy levers are high. In some cases, those stakes can be life and death.
I’d like to begin by illustrating those stakes with two brief vignettes, which I’ll follow with an overview of what the prevailing narratives about American criminal justice get wrong, and how that has contributed to the diminishment in respect we’re here to discuss.
The first is that of a young woman named Brittany Hill, who was gunned down on Chicago’s West Side last year while shielding her one-year-old daughter. Ms. Hill’s murder was captured on a security camera operated by the Chicago Police Department. That video showed her standing on the street one morning alongside two other men when a sedan slowly approached the group. Just after Ms. Hill’s daughter waved to the sedan’s occupants, the man in the passenger seat opened fire, wounding Hill just inches below where she was holding her daughter. Ms. Hill turned to shield the little girl, collapsing just a few feet away, still holding onto her daughter when she died.
Because of the video, police quickly apprehended the suspected shooters, both of whom, as was reported by the Chicago Sun-Times, had extensive criminal histories and active criminal justice statuses at the time: One of the alleged shooters, Michael Washington (who was on parole) reportedly had “nine felony convictions, including for a 2004 second-degree murder charge and a 2001 battery charge that was reduced from attempted murder in a plea agreement.” The other, Eric Adams (who was on probation for a gun charge), has a history of multiple arrests.
The second story I wanted to share is that of Robert Williams, who, in February of this year, is alleged to have shot and wounded two NYPD police officers in ambush attacks within the confines of the Department’s 41st precinct. He was taken into custody at the scene of the second shooting, which was in the precinct’s reception area. Williams is apparently no stranger to the justice system. The New York Times reported that Williams has multiple arrests dating to the mid-1990s, including a robbery charge when he was just 14. After his sentencing in 1995, he was paroled twice. He subsequently returned to prison for violating his parole—twice. The Times also reported that Williams shot someone in 2002 and then carjacked a woman while fleeing. The shooting resulted in a conviction for attempted murder. Despite that conviction and the suspect’s criminal history, Williams was released early from prison in 2017. Despite the leniency many would argue he had been shown, the Times reported that “Williams had told investigators in videotaped interviews that he carried out the attacks because ‘he was tired of police officers.’”
In both of these cases, we have extremely violent repeat offenders on the street despite troubling criminal histories and convictions for serious, gun-related offenses.
Not only do these stories illustrate the stakes involved in criminal justice policymaking, they also undermine many of the claims we so often hear in debates about criminal justice reform—particularly the claim that the U.S. is a draconian police state that regularly incarcerates relatively harmless offenders for years on end.
So let’s get into some of those claims, beginning with incarceration. Here, I’d like to make two main points:
- The international comparisons of incarceration cited as prima facie evidence that the U.S. overincarcerates ignore essential differences that take the wind out of the comparison’s rhetorical sails; and
- Contrary to conventional wisdom, incarceration is a relatively rare sanction, reserved mostly for violent and chronic offenders.
Let’s start with number one. One of the most repeated lines at the front end of any argument about “mass incarceration,” is that the United States is home to just 5% of the world’s population, but houses a whopping 25% of the world’s prisoners. What those who make this point don't tell you is that this disparity is almost entirely a function of differences which, when controlled for, significantly cushion the rhetorical blow that the comparison is usually intended to have.
The most obvious of those differences are found in the number and rate of serious crimes most likely to lead to lengthy prison sentences that are committed in the U.S. Take homicide, for instance, and consider the scope of that problem in England & Wales—one of the Western European democracies with a significantly lower incarceration rate with which the U.S. is often unfavorably compared. As I recently wrote in an essay for publication Law & Liberty: England and Wales have a combined population of about 59 million people, and currently see 726 homicides a year (based on the year ending in March 2018). Compare that with four contiguous community areas (Humboldt Park, Austin, East and West Garfield Park) on Chicago’s West Side, which, in 2018, saw 121 homicides (16% of the total for England and Wales) despite housing an estimated population of just 189,846 (0.3% of the population of England and Wales). The murder rate of those four community areas (63.73 per 100K) is more than 50 times higher than that of England and Wales (1.23 per 100K). Adding to the mix Baltimore’s Western and Southwestern police districts, which, with a combined estimated population of 103,052, and 100 homicides in 2018, would mean that just a few subsections of just two American cities see 30% of the homicides seen in the whole of England and Wales, despite those subsections having a combined population that (at 292,898) is just 0.5% of England and Wales’.
Number two: In addition to out-of-context international comparisons, the “mass incarceration” meme posits that the U.S. can be aptly described as a draconian carceral state that imprisons far too many people for far too many offenses, for far too long. Here again, the data don’t support this conclusion. The first thing that often gets left out is that a prison sentence isn’t exactly a given consequence of a felony conviction. Historically, only about 40% of state felony convictions result in a post-conviction prison sentence; and the median prison sentence actually served is just about 16 months. Second, the majority (60%) of prisoners in the U.S. are serving time primarily for one of just five serious offenses: murder (14.2%), rape or sexual assault (12.8%), robbery (13.1%), aggravated or simple assault (10.5%), and burglary (9.4%).
Third is that contrary to what many believe—thanks to popular-but-misleading works like Michelle Alexander’s The New Jim Crow and Ava DuVernay's Netflix film, 13th—“non-violent drug offenders” are most certainly not driving American incarceration. Those serving time primarily for drug offenses constitute less than 15% of state prisoners (who account for about 90% of the national prison population). Moreover, those who are primarily incarcerated for drug offenses tend not to spend much time in prison. Just under half (45%) of them are out within a year; and nearly 20% are out within six months.
There is a reason I refer to those serving time primarily for drug offenses. Often obfuscated in these debates is that incarceration statistics usually categorize offenders based on the most serious charge of which they were convicted, which usually translates to the one for which they received the most time. Particularly given the fact that convictions are usually the products of plea bargains that result in dropped or reduced charges, one must understand that prison population categories don’t tell the whole story. Three datapoints illustrate why this is particularly true for drug-offenders: (1) According to the Bureau of Justice Statistics (BJS), more than three-quarters of released drug offenders are eventually rearrested for a non-drug crime; (2) more than a third are rearrested for a violent crime, specifically; and (3) In Baltimore, 7 in 10 homicide suspects in 2017 had at least one prior drug arrest in their criminal histories.
So, why are all these clarifications important? One reason is that many of our most prominent lawmakers and political figures—including the presumptive Deomcratic Party nominee for president have bought in on the mass incarceration meme. Joe Biden has explicitly committed to pursuing a 50% reduction in incarceration as a result. Another reason is that allowing the claims I’ve addressed here to stand gives American citizens a warped sense of what criminal justice actually looks like in the United States. One example of that can be found in an oft-touted ACLU poll showing that 71% of Americans believe we should reduce the prison population. But when you contrast that poll’s results with a 2016 Morning Consult poll, we begin to see the support for prison population reductions documented by the ACLU may be based on a misconception. It turns out that support for decarceration is significantly eroded when you ask specifically about those convicted of violent offenses, and those who pose an elevated risk of reoffending. In fact large majorities oppose measures to incarcerate those offenders less. As Vox’s German Lopez put it at the time, the poll showed that, “voters overestimate how many people are in prison for nonviolent drug offenses while underestimating — or at least not knowing — that most of the growth in state prisons was driven by sentences for violent crime.”
But the misdirections and obfuscations I’ve examined so far do more than just lead voters to support misguided decarceration; they undermine respect for the very system we’ve designed to address serious lawbreaking by convincing the public that the system, by and large, produces results they find offensive.
When it comes to policing, we find much of the same. Now, it’s important to recognize the context of our current moment. We are in the wake of a wave of violent protests following the extremely disturbing death of George Floyd under the knee of a former Minneapolis police officer. Everyone should be disturbed by the force exerted by Derek Chauvin against George Floyd; and there is no question that police do sometimes engage in unjustifiable abuses. However, the fact remains that one of the most pernicious claims advanced about police is illustrated by the oft-repeated claim that black and Latino parents have to warn their children about police violence at a young age, and coach them through how to minimize their chances of being brutalized. A version of that claim was repeated on ABC’s “This Week” in 2014 by New York City Mayor Bill de Blasio. So, little wonder that de Blasio’s son, Dante, made the same assertion in a column for USA Today last year, lamenting the need for “young black people” to be taught (as he was) “to fear the people meant to protect us.” This idea is born out of the mistaken belief (fueled again by misrepresentations of the data) that police regularly use excessive force in their dealings with the public.
But, on the whole, police use of force is extremely rare. Rarer still are uses of force that are injurious and unwarranted. In 2018, police in the United States discharged their firearms an estimated 3,043 times. This may sound like a lot; but that number must be contextualized in light of the overall volume of police activity in the U.S. In 2018, more than 686,000 full-time law enforcement officers were working across America. That year, officers made more than 10.3 million arrests, and had contact with more than 53 million people. If we attribute each of the 3,043 estimated firearm discharges by police in 2018 to a unique officer, we can infer that, at most, 0.4% of police officers purposely discharged a firearm in 2018. If we assume that every shooting happened during the course of a separate arrest, we can infer that, at most, police applied deadly force with a firearm in 0.003% of arrests.
On the question of non-deadly use of force, a recent study published in the Journal of Trauma and Acute Care Surgery revealed that more than 99 percent of arrests by police are made without the use of physical force. That study, undertaken by a team of doctors and criminologists, analyzed more than one million service calls to three midsize police departments in North Carolina, Louisiana, and Arizona. Those calls resulted in 114,064 criminal arrests. In making those arrests, police used force just 0.78 percent of the time, and when they did, they seemed to have exercised restraint, given that “among 914 suspects, 898 (98 percent) sustained no or mild injury after police UOF.”
Ignoring these facts has allowed the misperception about police to persist, which has had real consequences—particularly for the populations the most vociferous police critics purport to represent. One illustration of those consequences comes from a study published in the American Sociological Review, which found that black residents in particular were significantly less likely to call 911 after a controversial police use of force went viral. The authors of that study attributed at least part of that reduction to an increase in “legal cynicism”—defined as “the deep-seated belief in the incompetence, illegitimacy, and unresponsiveness of the criminal justice system”—which, in turn, threatens the public’s safety. More evidence of that cynicism may be found in another Morning Consult poll in which twice as many black respondents reported worrying more about those they know becoming victims of police brutality than of gun violence—a result at odds with a recent study published in the Proceedings of the National Academy of Sciences (PNAS), which put the odds of dying at the hands of police at 1 in 1,000 for black men. Contrast that with the odds for all Americans of being killed by gun assault, which, according to the National Safety Council, are dramatically higher at 1 in 298. With black men more than 10 times more likely than their white counterparts to be the victim of a homicide, the risk of death at the hands of police is far lower than homicide generally.
It does not require a giant leap to conclude that such cynicism has eroded the public’s respect for the policing profession and the system of laws they’re sworn to uphold.
The perpetuation of false narratives about policing and incarceration have emboldened some of the most radical elements of the criminal justice reform movements, such that once-fringe ideas like the abolition of police and prisons are dramatically closer to the mainstream than they were just a year ago. Since the death of George Floyd, we’ve seen police departments around the country defanged in various ways, which has also emboldened the criminal class, whose members have taken advantage of the vacuum created by these “reforms.” In my home city, we’ve seen a troubling uptick in shootings that portends a potential erosion of its nationally renowned success on the crime-fighting front. Through July 12, 2020, murders in New York City are up 23 percent year-to-date; shootings are up 61 percent. The 28-day period ending July 12th saw 210 percent more shootings than the same period in 2019. This is not just a short-term blip driven by the recent economic downturn. The two-year trend in shootings and homicides shows those crimes up 70 percent and 22 percent, respectively. That crime increase, like crime more generally, is not evenly distributed. In East Harlem’s 23rd precinct, murders are up 500 percent year-to-date through July 12th; shootings have doubled. In Harlem’s 25th precinct, murders are up 250 percent and shootings are up 400 percent. In the 73rd precinct, which covers Brownsville, Brooklyn, murders have more than doubled, year-to-date; shootings have increased by 215 percent. But in the Upper East Side’s 19th precinct, there has only been one shooting all year. The same goes for the 78th precinct, which covers Mayor Bill de Blasio’s neighborhood of Park Slope. This should serve as a reminder that, to the extent radical reforms make life more dangerous, those dangers will disproportionately fall on America’s most vulnerable communities.
When I prepared the first draft of my remarks for today, our country was dealing with the beginning of the novel coronavirus pandemic that, by April 1, 2020, had claimed more than 4,400 American lives—with New York State accounting for 44% of those deaths (and 41% of all cases in the U.S.) at the time. Despite New York being the epicenter of the COVID-19 pandemic in America in early April, police throughout the state continued their service, which, by definition, involved close contact with potentially infected members of the public—often with minimal protective gear. By April 1st, more than 1,000 NYPD officers had contracted the virus, with five losing their lives to it. What the continued commitment of those officers showed is a deep commitment to the rule of law, which we know—from this pandemic, 9/11-related illness, and line-of-duty deaths and injuries—often comes at great personal cost to law enforcement officers. It’s that commitment which should be painting the public image of the men and women who protect and serve communities across our great nation. That nearly a million officers across our nation have taken oaths to risk their lives in service to the rule of law should place that ideal among those most revered in our society.
People of good will can certainly disagree about the extent to which our criminal justice system—which is by no means perfect—is flawed; and they can disagree about how to go about improving that system. But the idea that our criminal justice system is fairly characterized as one that regularly brutalizes disfavored groups via overly draconian sentences and unjustifiably violent policing is nothing short of defamatory. So, to my mind, the best way to restore the respect that this group acknowledges has been lost is to fight innuendo with empiricism, obfuscation with analysis, lies with truth.
*For a sampling of this work, see the following reports, essays, and columns: Rafael A. Mangual, Police Use of Force and the Practical Limits of Popular Reform Proposals: A Response to Rizer and Mooney, FEDERALIST SOC. REV., Vol. 21 at 128 (2020); Rafael A. Mangual, Reforming New York’s Bail Reform: A Public Safety-Minded Proposal, Manh. Inst. For Pol’y Res. (Mar. 2020); Rafael A. Mangual, Issues 2020: Mass Decarceration Will Increase Violent Crime, Manh. Inst. for Pol'y Res. (Sep. 2019); Rafael A. Mangual, "Equity" Before Security, CITY JOURNAL (Mar. 15, 2018); Rafael A. Mangual, Fathers, Families, and Incarceration, CITY JOURNAL (Winter 2020); Rafael A. Mangual, Bloomberg wants to be strong on guns and soft on crime, WASHINGTON POST (Nov. 24, 2019); Rafael A. Mangual, Biden Should Be Proud of His Record on Crime, THE WALL STREET JOURNAL (Apr. 24, 2019); and Rafael A. Mangual, No, Philly doesn’t need to cure poverty to reduce crime, PHILADELPHIA INQUIRER (June 24, 2019).
 Matthew Hendrickson and Alison Martin, Baby waved, smiled at men right before they killed her mother, prosecutors say, Chicago Sun-Times (May 30, 2019).
 Ali Watkins, Man Who Shot Up a Bronx Precinct Was ‘Tired of Police Officers’, The New York Times (Feb. 10, 2020).
 Office for Nat'l Statistics, Population estimates for the UK, England and Wales, Scotland and Northern Ireland: mid-2018.
 Office for Nat'l Statistics, Homicide in England and Wales: year ending March 2018.
 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, The New Press (2010).
 Ava DuVernay, 13th, Netflix (2016).
 Danielle Kaeble, Time Served in State Prison, 2016, Bureau of Justice Statistics (Nov. 2018).
 Alper, Durose, and Markman, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2004-2014), BJS (May 2018).
 See, Taylor Pendergrass, We Can Cut Mass Incarceration by 50 Percent, ACLU (Jul. 12, 2019).
 Press Release, 91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds, ACLU (Nov. 16, 2017).
 German Lopez, Want to end mass incarceration? This poll should worry you., Vox (Sep. 7, 2016).
 Dante de Blasio, My dad gave me 'the talk.' When someone called police, I felt the fear., USA Today (Jul. 1, 2019).
 See, Rafael A. Mangual, Police Use of Force and the Practical Limits of Popular Reform Proposals: A Response to Rizer and Mooney, Federalist Soc. Rev., Vol. 21 at 129 (2020).
 Crime in the United States, 2018: Table 74 (Full-time Law Enforcement Employees), Federal Bureau of Investigation. Note: This number likely undercounts the total number of law enforcement officers operating within the U.S., given that in many parts of the country— particularly in rural, exurban, and suburban areas—many public safety operations use part-time and reserve officers.
 Crime in the United States, 2018: Table 29 (Estimated Number of Arrests), Federal Bureau of Investigation.
 Contacts Between Police and the Public, 2015, Bureau of Justice Statistics (Oct. 2018).
 Bozeman, et al., Injuries associated with police use of force, J. of Trauma & Acute Care Surgery (Mar. 2018).
 Desmond, et al., Police Violence and Citizen Crime Reporting in the Black Community, American Sociological Review, Vol. 81(5) 857-876 (2016).
 Eli Yokley, Poll: Voters More Worried by Violence Against Police Than Police Brutality, Morning Consult (Jul. 11, 2016).
 Edwards, Lee, and Esposito, Risk of being killed by police use of force in the United States by age, race–ethnicity, and sex, PNAS (2019).
 See, e.g., Riddell, et al., Comparison of Rates of Firearm and Nonfirearm Homicide and Suicide in Black and White Non-Hispanic Men, by U.S. State, Annals of Internal Medicine (2018) (finding that "In 2016, non-Hispanic black men were nearly 10.4 times more likely than non-Hispanic white men to die by homicide in the United States.").
 See, Citywide Crime Statistics: Compstat Report Covering the Week 7/6/2020 Through 7/12/2020 (copy on file with author).
 See, Id.
 Hernandez, et al., Tracking Covid-19 cases in the US, CNN (updated Jul. 20, 2020).
 WABC, Coronavirus News: NYPD has 5,600 officers out sick, 5 deaths, abc7NY (Mar. 31, 2020).
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