Criminal (In)Justice

CHAPTER ONE

CONTEXTUALIZING THE REFORM DEBATE

One way to think about this book is as a contribution to ongoing debates about the wisdom of and necessity for mass decarceration and depolicing—debates that became considerably more intense during the tumultuous year of 2020. After all, I hadn’t seriously considered writing a book on this subject until I saw jurisdictions from coast to coast responding to the public critiques that followed the murder of George Floyd by rapidly accelerating the implementation of a policy agenda that, to my mind, could most kindly be characterized as a set of experiments, or a series of sizeable bets against the odds.

In state after state and city after city, policymakers were pursuing, among other things, drastic cuts to pretrial and post-conviction incarceration, reductions in the budgets of police departments, the decriminalization of public order offenses, and new limits on police enforcement. In order to make the case for this approach, we saw more and more elected officials, media figures, and activists viciously demonize the institutions that played central roles in the public safety gains made across the country through the last decade of the twentieth century. To these self-styled “reformers,” mass decarceration and depolicing were public policy goods unto themselves. But from where I was sitting, it seemed like there was a pretty good chance their approach would create the conditions for an erosion of public safety whose impact would be disproportionately felt by the very communities in whose names these policy experiments were being conducted.

The road toward decarceration and depolicing was not one started down in 2020. It’s one that different jurisdictions have been on and off since at least the 1960s. In his 2016 book, The Rise and Fall of Violent Crime in America, criminologist Barry Latzer quoted crime historian Eric Monkkonen, who suggested decades ago that criminal violence would follow a cyclical pattern: “[R]ising violence provokes a multitude of control efforts,” he said. But when “the murder rate ebbs, control efforts get relaxed, thus creating the multiple conditions causing the next upswing.”¹

Beginning in the late 1970s, some parts of the country began to get tougher on crime in response to upticks in violence and riots that some cities began to see in the late 1960s. That hardening of the criminal justice system really picked up in the mid-1980s through the mid-1990s with the proliferation of mandatory minimum sentences for certain offenses, three-strikes laws, truth-in-sentencing regimes, and new investments (and advancements) in proactive policing.

By the late 1990s, as violent crime rates began to decline sharply, calls to take our foot off the gas became more politically palatable. Those calls had of course predated the 1990s, but the growing crime problems plaguing cities in the 1970s and 1980s seemed to have the effect of suppressing their popularity. Those calls grew louder through the first decade of the 2000s, and support for the idea that we had overcorrected in the punitive direction gained more steam in academic and policy circles. Around 2010, if not earlier, concern about the excesses of policing and the criminal justice system more broadly seemed to reach a critical mass as years of violent crime declines made the 1990s seem so far away, which drove new efforts to address allegations of overpolicing and “mass incarceration.” The reformers were attacking on all fronts.

Class action lawsuits were filed against police departments (like the NYPD) to attack practices like stop, question, and frisk.² Similar suits were filed against correctional systems as a way to reduce incarceration—as was done in the state of California, whose legislature enacted the Public Safety Realignment Act of 2011³ to comply with a court order related to litigation wherein the plaintiffs successfully argued that overcrowding in California state prisons created unconstitutionally cruel conditions.⁴ In addition to lawsuits, sentencing reform efforts of all sorts were having success across the country. In 2009, per the left-leaning Vera Institute of Justice, New York “essentially dismantled” the Rockefeller Drug Laws (which established mandatory minimums in the 1970s for certain drug offenses).⁵ And in 2010, Congress passed and President Barack Obama signed into law the Fair Sentencing Act, which eliminated the sentencing disparity between crack and powder cocaine violations.⁶

Many of these efforts—which are just a few examples of what was a growing trend—were backed by influential activists and academics who did their part to advance the cause in the public square. One prominent example of this was Michelle Alexander’s 2010 bestselling book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in which she argued that drug enforcement was driving Black men into prisons, where they were disenfranchised and exploited in ways akin to what was done to Black Americans in the South through the mid-twentieth century.

By 2010 it was beginning to seem as though there just wasn’t any room (or tolerance) for the idea that policing and incarceration were legitimate societal enterprises. Things took an even more radical turn in the years that followed, and viral police use of force incidents were a major reason for this.

Controversial police uses of force were certainly nothing new in the United States. I remember my parents talking about and watching the news coverage of the beating of Rodney King by police officers in Los Angeles back when I was in grade school in 1991. What was different about the 2010s was twofold.

First, there was a large (and fast-growing) segment of the population that was spending more and more time on social media platforms like Facebook and Twitter, which allowed for the instantaneous dissemination of information (and misinformation) and amplified incidents that might not have captured as much attention in a different era. An example of this was how quickly the apparently false claim that Michael Brown had his hands up in surrender when he was shot by former police officer Darren Wilson in Ferguson, Missouri, in 2014 became a rallying cry. Chants of “Hands up, don’t shoot!” could be heard throughout the crowds that rioted in the streets following the shooting, and the phrase is still chanted during protests of police actions today.

Second, by the 2010s, a huge portion of the population was equipped with cell phone cameras, which meant there was a much higher chance of police uses of force being filmed and widely disseminated by bystanders, who were essentially transformed into citizen journalists. This, I think, had the effect of contributing to the increasingly widespread sense that police uses of force were far more common than they actually were. It also had the effect of driving more visceral reactions to force incidents as more people actually got to see these things take place. Two examples that come to mind are the cell phone videos of what seemed to be Philando Castile’s final breaths after he was shot by a police officer in Minnesota, and of Eric Garner repeating the phrase “I can’t breathe” during his arrest by NYPD officers, after which he went into cardiac arrest and died. It would be hard for anyone to watch those videos and not be disturbed by the sounds of men gasping for what would turn out to be their final breaths—and in the case of Castile, to watch a man die in front of a four-year-old child, who will have to deal with the trauma of having witnessed something even battle-hardened soldiers struggle to live with.

These events gave the push for reform an intense new boost, impacting both legislative agendas and political outcomes—particularly in local prosecutor races. Indeed, after 2014, the so-called progressive prosecutor movement took off as self-styled reformers—some of whom were former public defenders and civil rights litigators—vied to head up district, county, and state’s attorney offices, promising to cut incarceration and prosecute police violence. Many of them emerged victorious in major metro areas across the country, like St. Louis, Houston, Orlando, Chicago, Boston, Dallas, Philadelphia, Northern Virginia, Baltimore, Brooklyn, Portland, Austin, San Francisco, Los Angeles, and Manhattan.

In the lead-up to 2020, much of the broader public had already been primed to believe that police were an out-of-control occupying force, and that their violence was being aided and abetted by a justice system built and operated (by design, according to some) to the specific detriment of Black and brown communities. (“Black and brown” reflect two more colloquialisms that aren’t technically correct, but that I’ll risk using so as not to distract from the book’s more central points.)

Helping things along were media figures like Ava DuVernay, who produced, directed, and wrote the Oscar-nominated and Emmy Award–winning 2016 documentary 13th, which took the case advanced by Michelle Alexander, who was also featured in the film, to an even larger audience. DuVernay also produced, directed, and wrote the Peabody– and Emmy Award–winning 2019 Netflix miniseries When They See Us, which offered a harsh critique of the criminal justice system through a compelling, if contested,⁷ telling of the story of the “Central Park Five.”

Even before 2020, in the popular media and academia, skepticism toward the harshest critiques of policing and criminal justice were being met with the recitations of the now household names invoked as proof of the justice system’s racist failings: Trayvon Martin, Michael Brown, Eric Garner, Stephon Clark, Philando Castile, Laquan McDonald, Walter Scott, Sandra Bland, Kalief Browder, Tamir Rice, Freddie Gray… At this point, efforts to reform policing and criminal justice were enjoying ever more forward momentum. But the 2020 deaths of Ahmaud Arbery, Breonna Taylor, George Floyd, and Rayshard Brooks seemed to break the proverbial camel’s back, violently shoving the reform movement into overdrive. What followed was a wave of anti-police sentiment, a subsequent pullback on the part of police, and a slew of far-reaching policy shifts that—like many (though not all) of those instituted during the preceding decade—sharply raised the transaction costs of law enforcement while lowering the transaction costs of lawbreaking.

What followed that was the single-largest annual spike in homicides in American history.

For the first time since the mid-1990s, the United States saw more than 21,000 murders in 2020, a 30 percent increase over 2019, which is the biggest year-over-year increase on record.

The year 2020 was preceded by a decade-long trend of

Each of these trends accelerated for various reasons in 2020.¹³

Rather than consider the possibility that decarceration and depolicing may have contributed to the crime spike, some in the reformer camp have argued that the pandemic’s impact on the economy was to blame. Representative Alexandria Ocasio-Cortez, a Democrat from New York, for example, named pandemic-driven “record unemployment” and “economic desperation” as potential causes of what would turn out to be the city’s largest-ever single-year spike in homicides since at least the 1960s.¹⁴ Undercutting the congresswoman’s suggestion were the facts that (1) despite the global nature of the pandemic, many other similarly impacted nations (like Canada, the United Kingdom, France, Germany, and Mexico) did not see their homicides spike, and (2) despite the nationwide impact of the pandemic here in the US, violence seemed to remain as geographically and demographically concentrated as ever.

Now, this is not a book about the causes of the spike in serious violent crime that began in 2020 and continued through 2021. Nevertheless, it’s worth elaborating on two points I think will help readers better understand the anti-decarceration/depolicing cases made in the forthcoming chapters:

A NOTE ON CRIME CONCENTRATION

If you board an uptown express train at Grand Central Terminal, you can be in the heart of Manhattan’s Upper East Side, on 86th Street and Lexington Avenue, in just two stops. There, you’ll be just steps away from some of New York’s most prized real estate, its finest museums, and coffee shops slinging five-dollar lattes expertly crafted by pink-haired baristas. But if you stay on that express train for just a few more minutes—just one more stop a mere two miles up the avenue—you’ll step out onto the platform of a station with a very different feel (and smell). What you’ll see in the area of 125th Street and Lexington Avenue is a much less hopeful and much more dangerous scene: open-air drug dealing and intoxicated men passed out on sidewalks coated with urine and feces (among other things). In 2020, the precinct that covers the first of these two subway stops saw one shooting and one homicide, while the one that covers the latter saw 20 shootings and 10 homicides.¹⁵ In New York City—indeed, in most cities—things can change that quickly.

Sometimes, you’ll hear people talk about a city’s, county’s, state’s, or country’s violent crime problem. It’s an understandable colloquialism, but it’s not technically right. This is because crime is so hyper-concentrated that one’s risk of victimization can sometimes shift dramatically by simply walking a couple of blocks in either direction.

As I mentioned in the introduction, if you were to randomly drop 10,000 people over the United States, the overwhelming majority of them will land someplace with a murder rate close to zero. An unlucky few, however, will drop into neighborhoods with homicide rates rivaling those of some of the most dangerous places in the world.

According to a county-level analysis done by the Crime Prevention Research Center, just 2 percent of US counties (home to just 28 percent of the population as of 2014) see about 50 percent of US murders in a given year.¹⁶ More than half (54 percent) of US counties don’t see any murders in a given year. Within those counties, criminal homicides—as well as violent and property crimes more generally—are concentrated within urban enclaves.¹⁷ The practical implication of this is that people who reside in the same city can live with widely disparate risks of criminal victimization. Chicago—my wife’s hometown, and a city I called home for three years—is illustrative of this point.

I MOVED TO CHICAGO to attend law school back in 2012. My wife and I lived in a beautiful building on a quiet block in the northern tip of Lakeview, just off of Lake Shore Drive. Our building had a gym, a well-manicured courtyard, and a 24-hour concierge. The neighborhood was nice. Scenic bike paths, coffee shops, and restaurants were all within walking distance, as was the famed home of the Chicago Cubs, Wrigley Field. In our little slice of the city’s 19th police district, crime really wasn’t a daily concern when we left the house. It was a different story near the southern border of the city’s 25th police district—just north of the 15th (consistently one of the city’s most dangerous)—where my in-laws live. In 2020, the 19th District saw just 4 homicides and 19 non-fatal shootings, while the 25th saw 20 homicides and 113 non-fatal shootings (many of which were concentrated near the border of the 15th District, which saw 64 homicides in 2020).

Our Chicago experience was, to put it mildly, quite different from those who were not fortunate enough to live in the city’s safer enclaves. But even in the relatively little amount of time we spent on the West Side, my wife and I experienced firsthand just how dangerous things could get.

A few weeks before we moved back to New York in the summer of 2015, my wife and I had spent the day with my mother-in-law. We dropped her off at home in the late afternoon and were making our way east toward the lake. As we waited to turn onto Central Avenue from Fullerton, I noticed the driver of the car stopped at the same light on the opposite side of the road exit his vehicle. Another car was speeding past the left side of ours from behind, on the wrong side of the double yellow line. As that car made the left turn we were waiting to make, the man who had exited his car began shooting at it. After a few pulls of the trigger, he got back into his vehicle and gave chase.

Those bullets came within feet of us. It all happened so fast that I don’t think I fully processed what happened until long after the shooting had stopped. We pulled over, called the cops, gave our statement, and went home. We never heard back from the police. We left for New York later that summer, but our worries came with us. After all, our family still lives in that neighborhood.

The concentration of crime has been getting more attention in recent years thanks to the work of criminologist David Weisburd. Weisburd’s analyses have established what he calls “the law of crime concentration,” which, in his words, states that “for a defined measure of crime at a specific micro-geographic unit, the concentration of crime will fall within a narrow bandwidth of percentages for a defined cumulative proportion of crime.”²¹ What does that mean in more practical terms? Well, according to several analyses of cities of varying sizes, Weisburd and his colleagues have found that somewhere in the range of 4 percent of a city’s street segments²² will see somewhere in the range of 50 percent of that city’s total crime, and about 1.5 percent of a city’s street segments will see about 25 percent of that city’s crime.²³

In a study of crime concentration in New York City, Weisburd and his colleague Taryn Zastrow found that in 2010, 2015, and 2020, between 3.7 and 4.2 percent of the city’s street segments saw 50 percent of all violent crimes in those years.²⁴ Between 1.01 and 1.12 percent of Big Apple street segments saw 25 percent of violent crimes in those years.²⁵