RECAP: “Policing & Criminal Justice Reform,” A Conversation with Rafael Mangual, Prof. S. David Mitchell, and Prof. Jen Selin

Numbers vs. historical narrative took center stage in the opening remarks for the October 2nd “Policing & Criminal Justice Reform” panel delivered by Manhattan Institute Deputy Director of Legal Policy Rafael Mangual and University of Missouri Ruth L. Hulston Professor of Law S. David Mitchell. On the empirical side, when asked about the most important aspects of contemporary reform movements, Mangual focused on a number of issues that, he argued, have become unmoored from data.

Incarceration: While we are living in a moment when people are calling for drastic cuts in incarceration rates, Mangual first offered that international comparisons shed light on a lack of context that often informs these calls. For example, Germany, a country of 83 million people, saw just under 2,500 homicides over a recent 12-month span. In comparison, slices of high crime areas in Chicago, Baltimore, Detroit, and St. Louis saw 13.6% as many homicides as Germany during that same time-span (approx. 340) despite making up just 0.5% of Germany’s population. Similar misconceptions, he continued, plague our understanding of who is in jail, for what, and for how long. While many voices of reform hold that prisons are majority populated by non-violent offenders (specifically, non-violent drug offenders) serving unnecessarily long sentences, the statistics suggest otherwise: in state prisons, only 15% of people are being incarcerated for drug offenses, and the overall median time served is 16 months, with 40% of those convicted serving less than a year. Finally, he added that we should keep in mind that incarceration serves the important end of incapacitating serious offenders, a fact whose importance he underscored by pointing to an 83% re-offense rate among released prisoners.

Defunding, Abolishing, and De-Militarizing the Police: We need to likewise consider how data does or does not support current arguments to defund, abolish, or demilitarize the police. In over a million recent calls for police service in Arizona, North Carolina, and Louisiana—calls which resulted in 114,000 criminal arrests—there was one fatal police shooting. Of the roughly 76 million police-related contacts that occur per year in the U.S., 0.003% on average involve a police officer firing a service weapon. Every dollar spent on policing yields $1.63 in return, making defunding tantamount to reducing our capacity to do what we know is consistent with decreasing crime.

Responding to the same question from the perspective of narrative, Prof. Mitchell noted that we must begin by acknowledging the sociohistorical and socio-legal context of the longstanding negative relationship between law enforcement and Black communities. The distrust of law enforcement that has developed in these communities is reified each time an egregious act of police violence occurs, and a historical lack of accountability when it comes to these violent events means that a benefit of doubt has been lost. Addressing this narrative of distrust—which law enforcement has not adequately done, Prof. Mitchell argued—requires drawing a distinction between police and policing. While it is, to be sure, necessary to respond to individual acts of police violence in relation to the individuals who commit them, a “bad apple” rhetoric cannot prevail. Rather, we must think in broadband, institutional terms in order to attend to and reform those daily interactions with law enforcement that don’t end in bodily harm or death but that nonetheless fuel the aforementioned negative relationship. We must, for example, address inconsistent definitions of the use force. In our own hometown of Columbia, as in so many hometowns nationwide, we must address racial profiling—which statistics bear out as a truth year after year—as a structural issue. And we must curb the immediate response from critics of reform—and especially from police unions—that it’s somehow offensive to be critiqued for needing to do better. This institutional mistrust of reform in particular mistakes what drives the animosity harbored by communities of color toward police. Law enforcement and safety are important to these communities, Prof. Mitchell stressed. But so are reforms that work to ensure the existence of an enforcement body that doesn’t perceive everyone as criminal and that instead respects the humanity, dignity, and integrity of all who call them.

He added that, in considering how to enact meaningful change, we must recognize that policing reform is criminal justice reform. They cannot be decoupled, as police are the tip of the criminal justice spear—the first point of interaction in determining who to arrest, who to charge, and who is assessed fees. For example, when police are called to a minor issue and that interaction is escalated because of a lack of respect, more severe charges far too often ensue. But that lack of respect is prerogative. Respect is not something one is entitled to in service positions, and so better police training in de-escalation can become a tool of criminal justice reform. In other words, recognizing that there are structural flaws in the framework of who gets arrested—and recognizing that these flaws create a disproportionate entry system into the prison system which in turn has a disproportionate effect on who suffers the collateral consequences of incarceration—is the critical first step in instigating change.

Prof. Mitchell then went on to acknowledge that there are actions beyond policing reform that can be taken to aid in this process and that there are non-law enforcement institutions that must be held accountable for not doing so. We must collectively understand that defunding police would re-allocate resources to already defunded services (e.g., social work, psycho-therapy) that can assist the police in jobs they aren’t trained to do. We can, additionally, better use the courts to enact practical reform. We can take legislators to task for their reluctance to stand up and say we over-criminalize and for their refusal to take advantage of the spate of tools at their disposal to address this issue. And, finally, we must reform a system that has repeatedly failed to find effective ways to re-integrate formerly incarcerated individuals into society and that has instead denied them housing, jobs, and the franchise—a factor in why recidivism rates double from the first to the third year after release.

In offering a response, Mangual began by noting that the measured approach which he sees as conducive to advancing effective reform doesn’t necessarily square with popular topics. Rather than de-funding or abolishing police, for example, Mangual suggested that reforming recruitment in a way that increases professionalization—a tactic that was monumentally successful with decreasing police violence among NYPD officers—would be a critical first step. Rather than training in de-escalation—which he argued the data doesn’t support as being effective—he lobbied for greater police training on the legal side of issues, highlighting how incredulity (and the escalation that follows) is often the result of a knowledge gap. And finally, there are simple, practical steps that can be taken to increase transparency: wider body camera options, constraining the use of no-knock warrants, and better transmission of what data shows.

A link to a recording of the entire conversation, which also addressed such issues as the effects of indiscriminate police stops, the sociological role of internal bias within the de-escalation framework, racial disparity within the criminal justice system, and the great crime decline of the 1990s and 2000s, will be posted soon.