 The idea of systemic racism is not that people are operating with a racist mindset or racist intention. It's that it is a system that was originally designed to produce racist outcomes and it is continuing to produce them, regardless of the intent of people within that system. Through policing, through prosecution, through incarceration, the criminal justice system has produced massive declines and crimes since the 1990s and those declines have been geared primarily to the benefit of black and brown communities across the country. Is there overwhelming evidence that America's criminal justice system is racist? That was the subject of an online Soho forum debate held on Wednesday, June 24th, 2020, sponsored by Reason. Arguing that America's criminal justice system is in fact racist was Radley Balco, an opinion writer for The Washington Post. A former senior editor at Reason, Balco is also the author of the books Rise of the Warrior Cop and the Cadaver King and the Country Dentist. Defending America's criminal justice system against the charge of racism was the Manhattan Institute's Raphael Manguel, who is also a contributing editor for City Journal. Here's Radley Balco versus Raphael Manguel in an online debate moderated by Soho forum director Gene Epstein. Tonight's resolution reads, there is overwhelming evidence that the criminal justice system is racist. Speaking for the affirmative, Radley Balco, journalist at The Washington Post. Speaking for the negative, Raphael Manguel, deputy director of legal policy at the Manhattan Institute. When each of you has five minutes and one minute remaining in your allotted time, I'll be briefly interrupting to inform you. Jane, please close the initial vote. Defending the resolution, Radley Balco. Radley, you have 17 and a half minutes allotted to you. You can take it all or you can full short. Either way, I'll keep time. Radley, take it away. Thanks and thanks for thinking of me and inviting to participate in this. Just last week, Theodore Johnson, a black conservative, rugged national review about his experiences with racial profiling by police. He noted the fact that the course of his life had been pulled over more than 40 times, including one time that unjustly landed him in jail. He noted that he had his black friends and family members who had similar experiences. Tim Scott, the conservative black senator from South Carolina several years on the floor of the U.S. Senate, talked about his own experiences with racial profiling and how he had been unjustly pulled over. In fact, noted that his chief of staff had started driving a less expensive car because he had been pulled over because police officers had mistaken him for a drug dealer because he was a black man driving an expensive car. When I talk to racism about racism and criminal justice and my like to ask conservatives, do you think people like Tim Scott and Theodore Johnson are lying? Do you think that they're making these stories up? And I would guess that most would say no. And then I would ask if you don't believe them or if you do believe them, excuse me, why do you believe them but not the countless other black people who have told us about similar experiences or have spoken up about similar experiences. The evidence of systemic racism in our criminal justice system isn't just persuasive, it's overwhelming. For the last couple of years, I've been collecting studies, surveys and reports on this matter and I've collected a catalog close to 300 now which you can find at The Washington Post. The ratio of studies, surveys and reports that have found racial disparities to those that haven't is about 25 to 1. These studies show racially disparate outcomes in police stops, police searches, how bail is administered, who gets arrested, who gets pulled over, who gets fined, who gets arrested for not paying fines, who gets charged for possessing drugs, who gets leniency when prosecutors offer plea bargains, who gets leniency when judges issue sentences, who gets parole or probation, who gets hit with technical violations while on parole or probation, which kids get cited or arrested when cops work in schools, who gets picked for juries, who gets put in solitary confinement, on whom cops use force, how much force they use, who gets the death penalty, who cops kill, and who gets commutations and pardons. None of this should really be surprising. The criminal justice system was designed, honed and evolved during the Jim Crow era and there's plenty of historical evidence, a deluge of historical evidence showing that for much of the Jim Crow era, the criminal justice system was designed to preserve the racial hierarchy that existed during Jim Crow. That is, it was designed to sort of keep black people in their place. I don't think anyone listening to this debate would deny that Jim Crow era existed, that there was racial segregation during that era, and that our institutions existed to sort of perpetuate that segregation. The fact is, though, those institutions survived Jim Crow. Jim Crow is gone, but those institutions survived, and the idea that institutions that were built and designed to preserve racial hierarchy would suddenly stop doing that, just because Jim Crow went away, I think, to Fie's perjury. When we talk about systemic racism, I think people mistakenly think that systemic racism, the charge of systemic racism means that every single person in the criminal justice system is racist. That is not what systemic racism means. Stemic racism means that we have a system that was designed to perpetuate racially disparate outcomes and continues to do so. The example I like to give is St. Louis County, Missouri. Shortly after the Ferguson protests began, I went to St. Louis County, Missouri to do some reporting, and I went to all the county, excuse me, a lot of cities other than Ferguson in St. Louis County. St. Louis County has an ungodly number of cities. Over 90 municipalities exist in this one county. And there's a reason for that. Back in the mid-20th century, when white people started fleeing St. Louis, they would flee St. Louis, they would move out into the county. The black middle class would then start also moving into the county, also to get out of the city, and white people would sort of pick up and move a mile or a half mile over and start a new city. Basically, it was this perpetual pattern of white people sort of picking up and moving as black people moved into their neighborhoods. And this created what was locally called the postage stamp cities all over St. Louis County. And those exist today. The problem is each of these little cities have its own police department and its own city council, and they all have to draw a salary. And in St. Louis County, the primary source of revenue for these municipalities are fines and fees administered by municipal courts. These are things like traffic violations for jaywalking, for exceeding occupancy permits and houses. And what I found when I went there is if you talk to people who live in black areas of St. Louis County, they are perpetually harassed by cops because the police officers, and there's plenty of evidence of this, are basically told by their city councils to treat the people who live in these cities as ATM machines for the city. In fact, these municipal cops don't really solve crimes. There's a serious crime that's handled by the county police. These city cops exist solely to shake people down to provide revenue for their local towns and cities. And the part where the systemic racism comes in here is that the primary source of revenue in St. Louis County for municipality is a sales tax. Well, the poorer a city is, the less money it's going to get from a sales tax, right? And of course, there is a correlation between poverty and the percentage of a county that is black. And so what we actually find is that the blacker some of these cities are, the more reliant they are on fines and fees for revenue. That is, the more likely it is that their police officers are shaking down their residents with these excessive fines and fees. We found some cities in St. Louis County where there had been 20, even 30 arrest warrants issued for every resident of the county because if you can't pay these and you can't get to court, then you get an arrest warrant issued for you. Talking to people who live in these counties, this was overwhelming. These people, you know, people who lived in some of these towns had multiple arrest warrants. They were scared every time they went out in their car. And this was a system that was designed sort of to not only to shake people down, but also to the blacker a city was, the more reliant it was on these fines and fees. And so you could have a system where basically a city in St. Louis County may have a black city council. It may have a majority black police department, but it was more reliant on fines and fees than wealthier cities. And therefore those officers were going to be more harassing at the residents of those towns. And so you could have a system where none of the people who operated within that system were necessarily racist, a lot of them were black themselves. But this was a system that had a racially disparate outcome that preyed on black residents, more than white residents. And that was the result and the direct product of historical sort of racism. It was a legacy of this system of white people sort of fleeing St. Louis as a city. That's one example, but you can see similar examples all over the country and sort of how these systems, how black neighborhoods are policed versus white neighborhoods, and how black neighborhoods have historically been broken up. You can find this sort of across all various aspects of our society, but you see it most pronounced in policing in the criminal justice system. So let's look at the data. I'm going to go, I can't obviously go through all 300 or so studies that I've looked at over the last couple of years, but I can give you some highlights. So just last May, there was a massive study of 95 million traffic stops by 56 police agencies in the United States between 2011 and 2018. This study found that black motorists are far more likely to be pulled over than white motorists. But interestingly, as the day grew darker, the time of day grew darker, the discrepancy narrowed, suggesting that when police couldn't actually see the race of the drivers, they were less likely to racially profile. That's a pretty good indication that these stops weren't necessarily based on merit, but that race was a driving factor in why police were pulling people over. The study also found that black people were far more likely to be searched after a stop, even though the searches of white people were more likely to find contraband. Now this last part is important and it's consistent with countless other studies we've seen of traffic stops. Nearly every study to look at traffic stops and searches is found that black people are more likely to be searched by police and also that searches of white people are more likely to turn up illicit drugs or weapons. We've seen this in studies of stops in Cincinnati, Austin, Washington, D.C., Southern California, Connecticut, Springfield, Missouri, Burlington, Vermont, the entire state of Vermont, North Carolina, St. Louis County, the list goes on and on and on. Let's move to the drug war. Study after study has shown that though blacks and whites both use and distribute drugs at similar rates, black people are far more likely to be arrested, charged, and convicted and to get more jail time once they are convicted. In New York City, black people are eight times more likely to be arrested for marijuana possession. In the Manhattan, it's 15 times more likely. But with the rest of the country, it ranges from slightly more likely to 40 or 50 times more likely. One really interesting example, a few years ago, Harris County, Tennessee, the home of, excuse me, Harris County, Texas, the home of Houston, discovered that its crime lab had been issuing false positives in drug possession cases. So officials went back and retested thousands of cases. What they found in the end result is that black people, the black people made only 20% of Harris County's population. They made up 60% of the wrongful possession of narcotics cases. A 2017 report done by Reason itself found that the vast majority of civil asset forfeitures in Chicago were in black neighborhoods. And though forfeiture is often touted as a way to prevent drug kingpins from keeping ill-gotten gains, the median value of the property seized was $1049. We can look at jury selection. Studies have consistently shown that prosecutors strike black people from juries at far higher rates than white people. A study of 10 years of trials in Philadelphia found that prosecutors struck 52% of black jurors versus 23% of white. A 2011 study of 20 years of trials by the Michigan State Law School found similar numbers. Prosecutors struck 53% of black jurors versus 26% of white. The authors of that study crunched the numbers and estimated that the odds of a discrepancy that big, occurring from a race-neutral selection, was about 1 in 10 trillion. Let's look at sentencing. Here too, study after study has found that when white and black defendants have similar criminal histories and have been convicted of similar crimes, judges consistently sentenced black people to more prison time. A 2017 study by the U.S. Sentencing Commission found that black people on average get 20% longer sentences for similar crimes even after adjusting for age and criminal history. Black people are consistently more likely to get sentencing enhancements and authorized by federal gun control laws. A New Jersey study found that black and Latino people made up 96% of defendants sentenced to extra time under the state's drug-free school zones law. Look at bail. A recent Columbia University study found that black people are far more likely to be tamed pre-trial when accused of similar crimes even after adjusting for criminal histories. Black people are also less likely to be paroled and more likely to be violated from parole approbation for what are called technical offenses. These are offenses where the person didn't actually commit a new crime, but Mr. Curfew or associated with the wrong people or other sort of technical administrative offenses. Let's look at gang law. So a lot of cities and states have passed laws that offer sentencing enhancements if you're associated with a gang. A recent study found that more than half of the people on Mississippi's gang registry were actually white. Generally people were associated with white supremacist groups. And yet the same study found that every single person prosecuted under the state's gang law from 2010 to 2017 was white. Every single person. We look at police use of force. What we found when we look at police use of force is city after city after city police overwhelming use the vast majority of force, excuse me, disproportionate amount of force on black people. They tend to use more force on black people, particularly under similar circumstances. There was a really interesting recent study that looked at 911 calls. And what the study found is that when police officers were sent, when 911 calls sent police officers to white or mixed race neighborhoods, white and black officers use force at about the same rates. But when a 911 calls sent police officers to black neighborhoods, majority black neighborhoods, white officers were much, much more likely to use force than black officers and more likely to use greater degrees of force. One of the most interesting areas, and then I'll wrap up, I think that I found in studying, this is something I hadn't even really thought much about until I started compiling the studies. And that's this issue of colorism. So study after study has found that not only are black people generally treated worse than the criminal justice system than white people, but the blacker a person is, the worse they're treated by the criminal justice system. In fact, it's almost on a continuum as your skin color gets darker and darker and darker. These discrepancies that we see are more and more likely to affect you and affect you in more severe ways. Now, the counter to all of this is that is generally that black people commit crimes at a higher rate than white people. Therefore, we should expect them to be treated worse by the criminal justice system. I would submit that if you look at the studies that I've compiled in this survey at The Washington Post, a lot of these studies control for things like crime rates and criminal records and criminal pasts. But this colorism thing is really interesting because it isn't that blacker people commit more crimes than lighter skin black people, right? If you believe that, then you likely subscribe to some sort of biological or genetic origin of criminality for the reason why black people commit crimes at higher rates as opposed to sort of cultural or historical discrimination. And I would submit that nobody's participating in or viewing this debate, I would hope, subscribes to the idea that there's some sort of genetic predisposition to criminality in black people. If the criminal justice system is treating darker skin black people worse than lighter skin black people, I think that's a pretty good indication that the criminal justice system itself is judging people based on the color of their skin and not necessarily the severity of the crimes or their criminal histories. I'll just wrap up by saying I think, again, I wish I could take another hour and go through all the data that I've compiled over the last couple of years. But I am somebody who, when I first got into this, I was skeptical of the notion that racial discrimination was rampant in the criminal justice system. I would submit that you can't work on this beef for very long and still hold to that assumption. The evidence is just overwhelming and it hits you in the face of every day that you look at this. And it's a reason why I've completely sort of changed the way I think about these issues. Thanks, and I look forward to Raphael's response. Thank you, Radley. Raphael, you have the same 17 and a half minutes to speak for the negative on the resolution. Take it away, Raphael. Well, thank you. I'd like to actually start by saying thank you to Eugene and the SOHO Forum for the invitation and thank you to Radley for the challenge. I've long been a fan of these debates. I was an attendee of the very first SOHO Forum back in 2016, in which my Manhattan Institute colleague Heather McDonald emerged victorious, a feat I hope I'm able to pull off here tonight. And with the temperature of the ongoing debate about policing and criminal justice in America right now reaching what seems like an all-time high, I think measured and thoughtful exchanges of ideas are important. And so I'm really grateful for the opportunity to contribute to this dialogue and I hope that I'm able to do justice to an argument that I'm making in defensive institutions that, while most certainly are imperfect, nonetheless have produced an incredible amount of good for many of the most vulnerable among us. And so with that, let's get to the question at hand, which is, is there overwhelming evidence that the criminal justice system is racist? And despite a well-delivered opening statement by my opponent, the answer remains no. And to understand why, I think we have to start with the question of what it means for a system to be racist, in this case mostly against black Americans. And that takes me to the first of six critiques that I have of Radley's argument. And the first is that Radley's working definition of systemic racism in the context of our debate here tonight is, as he put it recently in his column to which he made reference, it's satisfied when systems and institutions quote, produce racially disparate outcomes regardless of the intentions of people who work within them. Now, this sets an artificially low bar by side stepping intent and thereby relieving proponents of this view of the responsibility of establishing not just that the criminal justice system produces racially disparate outcomes, but that it is operated for the purpose of producing those outcomes. After all, there is no such thing as accidental racism, right? And so on the right question, on that question, the evidence is most certainly not overwhelming. Now, if you read the article that Radley referenced, the title of which inspired this debate, what you'll see are a ton of examples, many of which are duplicative, by the way, of my second critique, which is that in order to make his point, Mr. Valgo is conflating racial disparities with racism. And he does this by focusing on the criminal justice system's outputs, things like traffic stops, citations, arrests, uses of force, sentences, etc. But he does that without considering the inputs to the system. That is, in most cases, without actually controlling for the factors besides racial animus that often go a long way toward explaining pretty big chunks of the disparities on which he hangs his hat. And doing this allows him to attribute to the system responsibility for outcomes that are driven largely by many of those who find themselves ensnared by it, right? And here are a couple of examples of what I mean. So a lot of people have been pointing to a study recently published by the National Academy of Sciences, which puts the odds of black men dying at the hands of police at one in 1,000, which are double the odds for men generally. Now, if you believe that this disparity constitutes prima facie evidence of racism, as Mr. Valgo seems to, consider that the very same studies show that the odds of women dying at the hands of police were just one in 33,000. Now, can we conclude from this that the criminal justice system is fairly characterized by rabid mis-injury? Of course not. All right. And so let's go to my second example. Radley's article summarizes the blurbs regarding the drug war as follows, quote, Black people are consistently arrested, charged and convicted of drug crimes, including possession, distribution and conspiracy at far higher rates than white people. This despite research showing that both races use and sell drugs at about the same rate, end quote. Now, the problem with this framing is that controlling for use and sale rates is insufficient to establish that these disparities by and large reflect racial animus. For one thing, it fails to account for how police resources are deployed, which is often a function of disparate violent crime rates. Violent crime is not evenly distributed throughout the country. Geographically, it's not evenly distributed throughout the states. It's not evenly distributed in cities or even neighborhoods, right? Consider the city of Chicago, for example, where the 2018 homicide rate for just four contiguous community areas, East Garfield Park, West Garfield Park, Humboldt Park in Austin was at 63.75 for 100,000, triple the citywide rate of 20 for 100,000. And it was about 10 times the national rate, which is about five for 100,000. Nor is the demographic distribution of violent crime even. Those four community areas in Chicago are almost entirely comprised of Black and Latino residents. And the unfortunate reality is that when it comes to some of the most violent crimes, homicide in particular, that uneven demographic distribution persists at the national level. Indeed, while Black men constitute about 7% of the nation's population, they comprise close to half of no-murder victims in 2018. Historically, based on homicide data from 1980 to 2008, published by the Bureau of Justice that says Blacks are about six times more likely to be the victim of a homicide than their white counterparts. They're about eight times more likely to be the perpetrators of a homicide. In 2016, a study published by the Annals of Internal Medicine found that Black men were more than 10 times more likely to be the victim of a homicide than their white counterparts that year. And so the question really is whether it is legitimate for police to focus their attention on the places in which violent crime is so elevated and on the people suspected of driving that crime. And the answer to that question is yes. Deploying scarce resources in response to disparate rates of serious violent crime is not only legitimate, but it's also race neutral. And yet what we see in the sort of argument that Radley is making here tonight is a consistent failure to account for how legitimate disparities and resource deployment inform the likelihood of encounters that produce the racially disparate outcomes. If there are more police in Black neighborhoods, you're going to have more police encounters with Black men in them. On the second point still, there's something else that the argument about the drug war that Radley makes in his article ignores, which is the reality that drug enforcement is often pretextual as an attack on violent crime. And that goes for other low-level crime enforcement. In other words, how and where police and prosecutors enforce drug laws and other lower-level offenses is not only or even mainly a function of drug use or drug sales, but rather a violent crime, which is something that they are seeking to reduce through drug enforcement based on their perception, a reasonable perception, that a substantial overlap between drug offenders and violent criminals in high crime neighborhoods exists. And a few statistics reveal that those perceptions are not crazy. In 2017, Baltimore police identified 118 murder suspects. More than 70% of them had at least one drug arrest in their criminal history. A recent Bureau of Justice Statistics study on recidivism found that more than three-quarters of released drug offenders from state prisons would go on to be re-arrested for a non-drug crime. More than a third would go on to be re-arrested for a violent crime specifically. Now, this reality is explained by, it helps explain, I think, why the Anti-Drug and Use Act of 1986, which by the way established the 100-to-1 sentencing disparity between cracking powder cocaine, which is often cited as evidence of racism, was cosponsored by 16 of the 19 members of the Congressional Black Office at the time. And this relates to a point that I'm going to expand on shortly. Now, you can say, and I might even agree with you, that this doesn't change the moral philosophical case against the drug war. And as someone who leans pretty libertarian myself, I'd sympathize. But I don't think you can fault policymakers from operating pursuant to the public policy case for drug enforcement, which seeks to answer different questions in the moral philosophical case. And most importantly, that public policy case is race-neutral insofar as it's driven by violence. Now lastly, on this second critique, I'll note that the drug war is actually not driving racial disparities in black incarceration, which I think is a pretty important point to make. While blacks constitute approximately 35% of violent offenders, 43% of weapon offenders, 26% of property offenders and 28% of drug offenders in state prisons, what you need to know is that were we to release every single drug offender tomorrow, the black percentage of the state prison population would not change. In fact, it would actually increase very slightly. Now, the third critique I have here is that all the disparities that Radley is focused on in his remarks in this article are disparities in enforcement data, as if enforcement statistics are the only outputs that our criminal justice system produces. Well, they're not. Radley's remarks ignore what is perhaps the most important output of our criminal justice system over the last 30 years. Crime declines. Take once. Through policing, through prosecution, through incarceration, the criminal justice system has produced massive declines in crime since the 1990s, and those declines have endured primarily to the benefit of black and brown communities across the country. Consider the following excerpts from a book by NYU sociologist Patrick Sharkey entitled Uneasy Peace, which by the way was very critical of policing and incarceration. He writes, quote, even the staunchest critics of mass incarceration acknowledge that the expansion of the imprisoned population contributed to the decline in violence. On this point, he conceives, quote, there is no longer much debate that he goes on, quote, the impact of the decline in homicide on the life expectancy of black men is roughly equivalent to the impact of eliminating obesity altogether. For every 100,000 black men, over 1000 more years of time with friends and family have been preserved because of the drop in the murdering, end quote. His book presents a bountiful literature showing, among other things, that declines in violent crime in black neighborhoods, improved educational outcomes, increased upward mobility, which he wrote, by the way, is, quote, much less likely in cities with high levels of violence. Now, the unequal distribution of the benefits of crime fighting complicates Mr. Balco's argument here, because there just isn't a particularly good explanation for why a system apparently designed and operated for the purpose of oppressing a racial minority, which so disproportionately benefit members of that minority when the system achieves its stated goals according to the leaders at the system's helms. Now, another reality that is incongruous with the resolution my opponent is defending here tonight is that the criminal justice system is the criminal justice system's responsiveness to call for reform, which, by the way, have led to reductions in both arrests and incarceration that, again, have disproportionately benefited black Americans. As my Manhattan Institute colleague Coleman Hughes recently put it, quote, from 2001 to 2017, the incarceration rate for black men declined by 34%. Now, let's just consider what's happened since George Floyd's reprehensible death prompted nationwide protests and call for reform. You've since had several major pieces of legislation proposed at the federal level. You've had police departments, including the NYPD, which just disbanded its plain closed anti-crime teams, change internal policies. And here in New York State, we've had Governor Cuomo sign into law 10 police reform bills. And all this without a change in the composition of the players that make up the system, which begs the question, why would a system operated for the purpose of oppressing minorities he calls for reform that not only come disproportionately from minority communities, but stem from protests in response to the killing of a black man and reinvigorated a movement led by an organization called Black Lives Matter. It wouldn't. My fifth critique here is that Radley's definition of systemic racism allows him to conveniently ignore the role that black and brown Americans play as police officers, investigators, prosecutors, judges, lawmakers, and even voters in bringing about the racially disparate outcomes that he says are overwhelmingly against racism. According to a 2015 report by Governing, almost 28% of police officers and minorities in his thoughtful book, Locking Up Our Own, James Forman Jr. eruditely documents this story highlighting that 64% of black respondents to a sentencing project survey, for example, stated that they thought courts were not harsh enough on criminals. And these attitudes were very well documented by Michael J. Fortner in his great book, Sign of Black Majority, which sets out the role that black New Yorkers have played in pushing the now infamous Rockefeller drug laws over the finish line. So the implication in my opponent's argument is that to the extent that people who look like me contribute in various ways to the criminal justice system's outputs, they do so as unwitting participants duped into carrying out their own oppression. This is both implausible. It's also offensive. Now Fortner's book also characterized the criminal justice system as, quote, disaggregated and uncoordinated, or, quote, almost a non-system. And this is salient because it takes me to my sixth and final point. At its root, Radley's central thesis, the criminal justice system was designed to achieve the result of racially disparate enforcement against blacks in a way that renders irrelevant the intentions of the system's operators, attributes to the federal, state, and local governments of the United States a level of organizational and managerial aptitude that no self-respecting libertarian would ever attribute to the state. At its core, what Mr. Balthow is alleging here is to quote the great George Costanza that minorities, mostly blacks, have, quote, become the target of a systematic process of intimidation and manipulation, the likes of which, well, you get my point. And so, given that the so-called forum is very much libertarian turf, I hope that I don't have to try too hard to evince your skepticism of the claim that institutions that constitute our criminal justice systems were erected to effectively and consistently bring about certain results or regenerations in such a way that, as my opponent would have you believe, renders it impervious to the intentions of its operators. I don't think that it's hard to find that impossible. Now, I don't know about you. I just can't buy the idea that such a large collection of government agencies is capable of that kind of success. And so I want to end by saying that though rare, unjustifiable police violence is something that should seriously concern us all. And so it's important for us to engage the arguments that have resurfaced in the wake of George Floyd's truly infuriating death head-on. And I want you to know that I understand personally the concerns about racial disparities, given stories like Mr. Floyd, as well as the stained history of law enforcement here in the United States. And while I believe that black and brown communities have disproportionately enjoyed the benefits produced by the American criminal justice system, I also understand that we have disproportionately borne some of the costs. And we can acknowledge all of that without throwing the baby out with the bathwater, which as we now see with the rising popularity of police and prison abolitionism in America, is the logical extension of the argument that Mr. Balco made here tonight. And that argument does not, as I see it, hold up on their close scrutiny. However, that there is not overwhelming evidence that the criminal justice system is racist does not mean that there isn't work to be done. And that there is work to be done is no reason to refrain from defending the system against the charge of racism, which is something I think I hope I have done capably here tonight. Thank you. Okay. Thank you, Raphael. Radley, we now go to the rebuttal part of the evening. Radley, you get five minutes of rebuttal. Take it away, Radley. Well, I'll start to say, I think it's interesting, the Raphael cites a couple of studies to rebut me that I didn't actually cite in my argument. You know, his point about outcomes versus inputs doesn't explain, for example, why prosecutors are overwhelmingly likely to strike black people from jurors instead of white people. This denies black people participation in the criminal justice system and their responsibility to serve on juries. It also denies black defendants the right to have a representative jury, a trial by their peers. It doesn't account for the fact that I mentioned several times that police are much more likely to search black motorists after stopping them, even though searches of white motorists consistently turn out more illegal drugs and illicit weapons or more likely to turn them up. It doesn't address the fact that it looks at death penalty. The race of the victim in a murder case is much more likely to determine whether death penalty is applied than anything else. People who kill white people are much more likely to get to death penalty than people who kill black people. It doesn't account for various other aspects of criminal justice. We're actually, the idea that you factor in crime rates or the rate of crime in neighborhoods that are policed, have already been accounted for in the studies and already been adjusted for. A good example of this is stop and frisk. A New York Times analysis found that there was no correlation between where New York police officers conducted stop and frisks and the number of guns seized from those particular communities. The vast majority of people who were stop and frisked while stop and frisked was the policy in New York City, were innocent. About 90% were innocent. About 90% were also black or Latino. And so what you have here is a policy that disproportionately affects minority communities, overwhelmingly harasses and subjects innocent people to these sort of humiliating searches on the street. And that does very, very little in terms of actually addressing gun issues in the neighborhoods where guns are a problem. As for the idea that we send police officers into communities where there's most crime or there's most violent crime, the Washington Post did a study earlier this year that found that police are actually really bad at solving homicides. And they're worse at solving homicides in black communities. In fact, if I have the number correct and I may be misremembering it slightly, I believe less than 30% of murders of black people in Chicago were solved by the Chicago Police Department. Now, if the whole idea of we're sending cops into your neighborhood to protect you from violent crime, and so you're going to have to put up with these proportionate stops and searches and arrests in order to promote your own safety, you would think that police would actually do a better job of solving crimes in those communities. Rafael cites the decline in the crime rate since the mid-1990s as a justification for some of these racial disparities or suggesting that those of us who are upset about racial disparities and criminal justice and don't factor in the benefit to black communities by the decline in crime. However, there's no evidence actually that incarceration and aggressive policing are responsible for the drop in the crime rate. In fact, studies I've seen attribute incarceration and carceral policies to about 5 to 20% of the crime drop that we've seen since the mid-1990s. In fact, criminologists are constantly arguing with each other about what caused the crime drop. I see very little evidence that we should attribute any or most of it to aggressive policing or mass incarceration or policies that led to mass incarceration. We've seen everything from sort of lead pollution to abortion to the aging population. I mean, there are all sorts of factors. The idea that we should sort of hang our hat on the fact that putting more people in prison and putting more disproportionate number of minority people in prison or suggesting them to aggressive policing is somehow saving them. There's not a whole lot of data to back that up. Raphael also talks about unwitting participants of the fact that minority people in the criminal justice system that they're somehow being duped. I will say that lots of minorities in the criminal justice system have spoken out about the very same things that I'm talking about. The National Association of Black Police Officers regularly decries racial profiling. They decries discrepancies in the way the drug laws are enforced. There are lots of groups within the criminal justice system that have been raising these very same issues. It's not that they don't see them or that they're unwilling dupes. It's that they still sort of believe in public service, but they want to fix the problems within it. Raphael's final point that suggesting this system as racist ascribes to it a certain aptitude that no libertarian should sort of think a government is capable of. Nobody's suggesting that this is a conspiracy, that this is organized, that there's a sort of zoom meeting of police officers every morning. Sure, there's some zoom meeting of police officers. We'll discuss how they're going to oppress minority people. The argument is that this is a system that was built and designed and honed and evolved in an era where everyone agrees that there was systematic racism and discrimination in America. And these are the same institutions that survive today and that without sort of going through and carefully studying and examining what in those systems we need to get rid of or change in order to effect and sort of purge it of those inclinations, that's what we need to do. There's no argument that this is some sort of organized conspiracy of oppression and racism. It's that these systems were designed for that and these are the same systems we use today and we need to sort of go through and figure out what we need to change to make them better. Alright, thanks. Bradley, you get a little bit of extra time on your rebuttal because Bradley took a little bit of extra. So take it away, Bradley, with your rebuttal. Thank you, thank you. I missed a little bit of that because there was a bit of jumping around, but I'm going to try and quickly respond to at least some of the points that jumped out at me. The first thing is this argument that there are these alternative explanations for a huge chunk of the crime decline really is basis. Bradley can say that there isn't a lot of evidence in support of this, but the reality is that there is, I've cited it in much of my work. Even the sentencing project in a 2005 report came out and said that 25% of the crime decline in the 1990s could be attributed to incarceration. Again, this idea that this isn't an organized effort, again I think undermines the claim in so far as, at least if you subscribe to the idea that racism, or showing racism requires a showing of intent, again you cannot be accidentally racist. This idea that this system just kind of accidentally produces these outcomes without any intent is really, or at least due to the intent of people who are dead today, it really just evidences one of two things, which is either a conspiracy argument or just an accidental racism argument, neither of which really holds water. This idea that abortion drove a chunk of the crime decline that came anywhere close to things like imprisonment or more aggressive proactive policing is interesting to explore because what it implies, especially given the rate of black abortion, is that there is some higher propensity for black children to grow up to be criminals and therefore by taking them out of the world preemptively, you make way for a decline in crime. I don't find that convincing nor do I see any real evidence of that. I would point people here to Barry Latzer's book, which addresses in great detail both the abortion and lead poisoning arguments. This idea that the studies that Radley sets out in his article by and large control for the relevant factors that are necessary to control for in order to isolate racial animus really just as a mischaracterization. I went through, as he was talking, I was able to get through the first 19 studies that he cites in that Washington Post article. None of them had anywhere near sufficient controls or robustness checks to actually isolate racism. When he says a lot of these studies have these controls, I think what he means is it's not very many at all. When he talks about, again, outputs, things like traffic stops, I would point you to a study done in New Jersey in the Garden State Parkway which actually over a period of time using high-tech cameras took pictures of motorists and took a cross-sectional sample of motorists on the Garden State Parkway. What it found was that black motorists, black male motorists in particular, were so much more likely to speed than their counterparts on the road that actually explained the entirety of the gap in people being pulled over by the New Jersey State Police. So again, that's not to say that adding these controls will always explain the entirety of the gap, but I don't think it has to. The claim here is not that there isn't some racism at some points in some places within the criminal justice system. The claim here is that by and large, there is so much racism in the criminal justice system that it is endemic to it, such that we can characterize the system as racist. Again, I just don't think that Radley's really carried that argument here today. When we talk about things like stop, question, and frisk, again, the evidence really pushed back against Radley's characterization. I'd point you to a 2014 study done by David Weisberg, a criminologist at George Mason, which actually found that in high-crime neighborhoods in New York City, and had mostly minority populations, the added presence of police and the knowledge within the public that police were engaging more pro-active activity actually did have a significant deterrent effect on crime, such that the fact that guns weren't recovered and a huge amount of these stops isn't really the point. The point is that by having these interactions, you were sending a signal that actually ended up changing behavior, still allowing police to achieve their goal. Again, doesn't mean that was the best way to go about it. That's beside the point that we're debating here today. The point that we're debating here today is whether those actions were driven by racial animus against black people. I don't think that we can say that that's the case. So I'll stop it there. Okay. Well, that concludes the initial part of the evening. We now go to the Q&A part. At any time, either of you can ask a question of the other. The moderator can do so. That's me. Or I can read questions that came in from the audience. You can do this at any time. But right now, Radley, is there a question you'd like to put to Raphael? Or do you want to wave that and say it up to you? Yeah, I'll ask one. Let's go back to stopping first. You know, if stopping frisk is the sort of knowledge that police presence in these communities is why crime went down in these communities, then why did crime continue to go down after stopping frisk ended? And I would just add that your colleague at the McDonald predicted that there was going to be a massive surge in crime, violent crime in New York City with the end of stop of frisk. That didn't happen. So how do you explain that? Well, again, saying that that didn't happen is to aggregate the city's crime data as if crime is experienced in the aggregate and it's not, right? Crime is extremely concentrated within the city of New York, just as it's extremely concentrated everywhere else in the United States. So to look at crime trends in the city as a whole and say, well, these were pretty flat, irrespective of how things changed is really the kind of wrong measure, which is why I cited David Weisberg's study, which does a microgeographic analysis, which is the right measurement here, to look to see how crime changes in specifically the high crime areas. And there was a very statistically significant effect after all controls were entered into and robustness checks were made. The other thing I would say here too is that stop and frisk, it's a term that we kind of bandy about, but there's actually a lot of evidence to show that a pretty big chunk of the interactions that were recorded on UF 250s, which were the forms that MMIPD officers had to submit when they did a stop and frisk, were actually not legally stopped and frisk. You have to remember that there was an incentive in place back then that the department created when it made stop activity part of in police officers evaluation. And when police officers were in low crime areas, they were still held to that standard, which induced them to record a lot of interactions that didn't actually rise to the level of a stop and frisk as stops and frisks. And one of the ways we can kind of have some circumstantial evidence of this being the case is a recent piece of legislation passed by the city council on the Right to No Act. The Right to No Act's premise, which was passed in 2017, by the way, the premise of the Right to No Act is that even after the big decline in reported stops by the MMIPD, people were still regularly consenting to police searches such that activity like that did not decrease all that much. And the conclusion was that they were consenting based on an ignorance of their right to withhold that consent. And so if the incentive structure in place at the time when stop and frisk was near its peak was such that police officers would have been incented to record as Terry stops interactions that were actually consented to, that would actually change the trend lines quite a bit. And so, you know, I think that's something that you have to consider too. Any comment on that, Radley? No? Okay. Raphael, do you have a question you want to put to Radley? No, no, I think let's just go to audience questions. I see that there's a lot in the chat there. Okay, well, I want to put to question to you both just to clarify how far apart you are on the issue of the cause in the plummeting crime rate. I take it both of you agree that the plummeting crime rate did benefit blacks. Both of you agree with that, that it was a big benefit to blacks. And that in that sense, it was sort of pro-anti-racism rather than pro. But Radley, your position is that the two factors, which is incarceration and more aggressive policing, more incarceration, more aggressive policing, those two factors had no effect. Or did I hear you say it's like 15 to 20 percent? Could you clarify your position on that? The more incarceration and more aggressive policing affecting the plummeting crime rate? Yeah, the academic research puts it somewhere between 5 and 20 percent. I guess Raphael found a study that's 25 percent. He was assuming it's 25 percent. I mean, that is a fourth of the crime drop in response to a massive increase in mass incarceration. I think we don't know exactly what caused the crime drop. Also, I would just like to add that I mentioned abortion in the course of discussing all the theories that have been put forth by criminologists for possible reasons for the crime drop. I was not suggesting that I personally believe that caused the crime drop. And it's a little, I think, disingenuous to sort of accuse me of being a racist because I cited a theory that many criminologists put out about what caused the crime drop. All right, well, that clarifies things and jumps into your position on abortion. But you were saying... Can I just jump in to say one thing, Gene? First off, I want to make clear that I was certainly not implying that you're a racist, Radley. I don't think you would be arguing your side of this resolution if you were. However, I want to just make clear that I'm not sure how far apart we are on the causes of the crime decline is really all that relevant, right? The relevant point here is that this question goes too intent, right? And every single defender of the criminal justice system, every single leader within the criminal justice system that argues that those benefits were attributable to their actions evinces their own state of mind, which is important here because my argument is that the criminal justice system is not operated to hurt black people. And if so, people like Bill Bratton or Dermot Shea or Ray Kelly or Rudy Giuliani or whoever it is that you have in mind, William Barr, if their argument is that these crime declines and Europe primarily leads to the benefit of blacks, when the system operates the way that they think it should, then that evinces their own state of mind, which is not a racist state of mind, and that is the point that I'm making here today. I would just go back to the point that, again, the idea of systemic racism is not that people are operating with a racist mindset or racist intention. It's that it's a system that was originally designed to produce racist outcomes and it is continuing to produce them, regardless of the intent of people within that system. I would also say that just saying that the crime right has benefited black people means the system has benefited black people just counts the untold or immeasurable damage that has been done to black communities by mass incarceration. It's not just people incarcerated in their families. There have been studies showing that it spreads almost like a disease throughout entire communities, but it's been devastating to black communities. So, yes, the crime decline has benefited. The question is, could we have gotten the same or similar decline without putting masses of people in prison or suggesting people, giving people criminal records that didn't deserve it, which affects them for the rest of their lives? Could we have done this? The crime decline have happened without all of that and I think there's good evidence that it could have. Okay. So, actually, you anticipated a question that I've seen from the audience that I also wanted to put to you, Radley. You're saying that even though there are black police chiefs, even though you mentioned that the black people in government in these St. Louis suburbs are implementing certain things, you're basically saying that black people are themselves, have become themselves agents in racism by becoming a part of the criminal justice system, that black people are effectively purveyors of racism toward their own kind because of the systemic analysis that you put forward. Is that a correct clarification of your view? Would that be a correct summary? I mean, I think there are black people in criminal justice who realize that to admit that the criminal justice system is racist and try to change it from the inside. But you said in the case of St. Louis, for example, or indeed there are many black police chiefs in many areas, there are black cops, so there are many black people disproportionately on black people disproportionately represented in the criminal justice system professionally as employees, so most of them presumably are agents of racism. Would that be correct in your view? Sure, because they're inside, they're operating in a system, particularly if you look at St. Louis County and I think this is why it's such a great example. You are a black police officer in one of these small municipalities that probably shouldn't exist and only exist because of this sort of historical racism. Your job is to generate fines and fees from black people who live in your city in order for your government to continue to exist in order for you to continue to have a job. I mean, the classic sort of conservative critique of a government jobs program is paying one person to dig a ditch and the other person to fill it up. Well, here in St. Louis County you have entire municipalities where the police department's sole purpose is to generate fines and fees so that the police department can continue to exist. That is a huge problem and it's more prominent actually in black areas of the county in black or cities because those cities tend to get less revenue from income tax so they're more reliant on fines and fees. So yeah, I think if you are a black person operating one of those systems, you are hurting black residents as a result of sort of historical legacy, whatever you want to call it, systemic racism. I'm not saying those people are racist. I'm saying that is a very definition of systemic racism. It's a system that produces racist outcomes because it was sort of built to, regardless of the motivations of the people who operate inside of it. Well, you would also say just to clarify for that, that again, even outside that those governments, a just proportionate number of people in law enforcement are black. So they for the most part are also agents of racism in your view. I think that they are participating in a system that was designed to produce racist outcomes and that is producing racist outcomes. I'm not going to say they're agents of racism because that describes them in the mindset that I can't read their mind and I'm sure most of them aren't racist against their own guy, but they are participating in a system that disproportionately affects the black people in their communities and it's a system that was designed to do that. We've had many questions about this Raphael, could you clarify your position about the distinction between results and intent? Could you go over that again? Yeah, no, I think again, this is the point here. Bradley can say that the definition of systemic racism is that the system produces these outcomes without regard to intent, but that doesn't necessarily make it so. Racism in ism refers to a state of mind, refers to a set of beliefs. Racism requires at least some showing of intent and the fact that there are many black and brown police officers, prosecutors, judges, lawmakers in various parts of the country who have contributed in one way or another to some of the outcomes that Bradley cites as evidence of racism I think undermines his point to the extent that you buy my argument, which is that a showing of intent is necessary. In 1991, William F. Buckley debated Charlie Rangel among other people on the proposition of whether we should end the drug war. And Charlie Rangel was arguing in favor of perpetuating the drug war at one point suggesting life in prison for certain crack dealers. This is a guy who helped push the anti-drug abuse act of 1986. This was a guy who was supportive of the Rockefeller drug laws. The idea that someone like Charles Rangel, congressman to Harlem, for God knows how many years, was helping to operate a racist system is, I think, really strange for Jordan. Yeah. Okay. With respect to a few of the specific examples that Bradley has used, could you address a couple of them that you perhaps did not specifically speak to, Raphael? In particular, for example, he mentioned that jurors on panels, blacks are not chosen to be on juries the way whites are. And that obviously harms black people who are on trial before those juries. He mentioned a degree of blackness bias and that people who are very black tend to be mistreated more than lighter-skinned blacks. Those two examples, do they mean anything to you? What's your response? Yeah, I can't say that I am thoroughly familiar with all the literature on jury selection, but I can say that there are mechanisms that are exercised pretty often to vindicate those rights. It's called a Batson challenge. And there are many of those cases that make their way through. In Manhattan, where you have more white jurors on criminal trials, there is a much higher rate of conviction in jury trials than in the Bronx, which has one of the lowest rates of jury trial conviction and much higher proportions of black and brown jurors. I think that's pretty good evidence that at the very least, this trend is not nationwide. It is not something that characterizes the system as a whole. And this is, I think, another problem that these arguments suffer from, which is that we take these stories, we take this one study, and we pretend that it represents the entire body of literature, or we pretend that it characterizes the system by and large, and that just isn't the way reality works. And you want to say the same thing about the degree of blackness studies because this is, I have no doubt that in some aspects of life, skin tone is a factor. I just, again, I have not seen those studies. I can't speak to their methodological integrity. I am a little suspicious of the representation of them here today. But yeah, I just can't speak to something I haven't seen. I've gotten a few questions about the crime rate issue, so I want to go back to it just for a moment. Radley did seem to go possibly as high as 20 to 25 percent in attributing the decline in crime to more aggressive policing and incarceration. That 20 to 25 percent, hopefully, Radley Steppen, you did quote that, I believe. Raphael, could you pick your number? Do you think that's about right or that's too low? It's 25 percent, to be clear, just for incarceration. That does not include the role of policing, right? So that sentencing project study from 2005, which cites several pieces of literature, including some done by Stephen Levitt, came up with that 25 percent number and that is attributable just to the role of incarceration. Policing on top of that 25 percent has produced all kinds of benefits. Again, that have been neared primarily to the benefit of black communities. And again, the main point here is that when proponents of the criminal justice system, when defenders of the criminal justice system talk about it, they talk with reverence about these crime declines. This is something that we are proud of, right? And that reality does not mesh with the claim that the system is racist, right? It just doesn't make any sense that the racist system operated in a way that achieves its stated goals as per the people running that system benefits black and brown Americans to that higher degree that does not make any sense. Maybe I took your name in vain. Bradley, do you want to make a comment about the question I just put to Raphael? Any emphasis on any rebuttal or what do you want to say? If anything. No, I think it's a mistake to sort of say, I mean, if the system benefited black people by reducing homicide rate in black communities, it also sowed a lot of misery and despair by creating, you know, entire generations of black people who were incarcerated or had a parent or family member incarcerated who have a criminal record or have an arrest record, you know, over-policing it is, and mass incarceration have had a monumental effect on minority communities, particularly black communities in the U.S. and say that, you know, maybe 20-25%, which it's a very difficult number to measure of the crime drop may have been tributative to that. I think we have to factor in the harm that was done by those policies as well. Yeah, I mean, I would just respond quickly by saying that, you know, it's no more difficult to put that tail on the donkey, so to speak, as it is, you know, to sort of isolate the role of racism in things like jury selection, right? Their econometrics is an art, you know, so the idea that we can just sort of say, well, that's too hard to do, but these you should believe is a little uneven, but I also want to respond to this claim that incarceration is harming families, because it is a valid argument if you buy it, the problem is that the evidence doesn't jive with this, right? A new working paper out of the University of Ohio, out of Ohio, I should say, I'm going to quote it now, because I wasn't planning on talking, but it says, quote, contrary to conventional wisdom, parental incarceration has beneficial effects on children, reducing their likelihood of incarceration by 4.9 percentage points and improving their adult socioeconomic status. Sibling incarceration leads to similar results in criminal activity. Now, the paper entitled the effects of parental and sibling incarceration evidence from Ohio was co-authored by researchers at the University of Chicago, UC Berkeley, and USC, and what they did was they studied a sample of children with parents, quote, on the margins of incarceration. In other words, parents whose incarceration status would depend very heavily on the leniency or severity of the judges handling their cases, and they measured not only life outcome differences between the children with incarcerated parents and those without, but also the portion of those differences attributable to the parents' incarceration. And this is not an anomalous study, right? This is part of a growing body of research that resembles other findings, right? So in a study of incarcerated parents living with their children in North Carolina, University of Colorado professor Stephen Billings found that, quote, removing negative potential role models through incarceration benefits children, end quote, particularly in terms of their behavior at school, a paper out of Norway estimated, quote, a 32-percentage point reduction over a four-year period in the probability of a younger brother being charged with the crime if his older brother is incarcerated, and Caroline Artega, an economist at West, in a 2018 study of children in Columbia found that conditional unconviction parental incarceration actually increases years of education. So this idea that incarceration can just automatically, axiomatically be considered a net negative for children or families is not supported by the data. I'm kind of dumbfounded by this argument. The idea, I mean, groups like Manhattan have been saying for years that the breakdown of the Black family is responsible for all these social lives in the Black community, and the absence of fathers is critical, but now all of a sudden, incarceration is good for children. Children having parents in prison, it's good for them, it's going to lead to better outcomes. I mean, I don't know these studies that decided they'd fly in the face of dozens and dozens of studies showing the harms of incarceration, not just on families that are incarcerated but in entire communities and neighborhoods that there's actually a public health model where incarceration can affect communities like the C's. I mean, I guess I'll have to check out these studies, but there's an overwhelming amount of empirical evidence that contradicts them. So again, there's an overwhelming body of evidence that shows that incarceration does harm children. The question is whether it harms them on net, as compared to what. Now whether a parent's presence in a child's life is beneficial will depend very heavily on whether that parent engages in high levels of anti-social behavior. This is a term that researchers have been looking into for about 40 years in the psychological and sociological literature. And when people fail to conform to social norms, when they act deceitfully, impulsively, with reckless disregard for others, the literature on the intergenerational transmission of anti-social behavior is actually pretty robust. And what it suggests is that the presence of parents who engage in such behavior may actually be even worse for a child than the absence of a pro-social parent. So I'm going to quote another study published in the Journal of Abnormal Child Psychology, which found fathers' anti-social behaviors predicted growth in children's externalizing and internalizing behavior problems with links stronger among resident father families. Another paper in the Journal Child Development found, quote, the quality of a father's involvement matters more than his mere presence, and that children who live with fathers who, quote, engage in very high levels of anti-social behavior will go on to behave, quote, significantly worse than their peers, whose fathers also engage in high levels of anti-social behavior, but do not reside with their children. So the idea that this does not fit within the broader literature again is just not true. I wrote an entire essay about it in a city journal called Fathers' Families and Incarceration. You can check it out there. That also assumes that anti-social behavior, that people who are in prison that are engaging in anti-social behavior just counts the fact that, you know, arresting people for drug possession, giving people criminal records, leads to anti-social behavior because you take away opportunity from them. You take away, you know, chances for them to just sort of, you know, live their normal life, be present in your communities, be present for their families. It also assumes that there's a strong correlation between people who are prisoned and imprisoned, that they're prisoned because of their anti-social behavior. I think there's a lot of examples of, to the contrary to that as well. We don't, you know, the level incarceration is not necessarily the level to which people are anti-social or engage in anti-social behavior. Well, what I would say in response to that is that, again, here there's actually a pretty decent amount of literature looking at the rate of anti-social behavior in prison populations. So in 2002, the Lancet published a study that showed that nearly half of just under 19,000 male prisoners surveyed across 12 countries had anti-social personality disorder. A 2016 article on translational psychiatry noted that while only between 1 and 3 percent of the general public have anti-social personality disorder, the disorder has a prevalence of, quote, 40 to 70 percent in prison populations. So, you know, again, there's just a lot of data here that says you're wrong. Well, there's no... Ravi, I guess, Ravi might respond to give me for putting words in your mouth, Ravi, that once you went to prison it could make anybody anti-social? Sure, I mean, yeah, there's certainly some evidence to suggest that prison can have a criminogenic effect on people, but that doesn't explain what landed them there in the first place. And we know that prison is nowhere near for most people, right? Only about 40 percent of all state felony convictions result in a post-conviction prison sentence. So the idea that it's prison sort of making all of these people, you know, sort of fall into these anti-social patterns as opposed to, you know, these people having anti-social patterns that lead them to prison, again, I think strange majority. I would also suggest that, you know, getting stopped at risk 20 or 30 times over the course of a few years, leaving your home or getting pulled over 40 times over the course of your life, you know, despite not doing anything wrong, might also, you know, eventually lead to some anti-social behavior or questioning the way society treats your family. I was just going to say, look, that might contribute some, sure. I mean, and the false positive problem is a real one, right? I mean, if these crime trends are driving sort of police perceptions and they're driving police resources into these neighborhoods, there is going to be a higher rate of false positives within the demographic groups in those neighborhoods. But again, that is not necessary. I mean, we can characterize the entire system by that. And also, again, I would just say that usually anti-social personality disorder is developed at an extremely young age before anyone's had any of those interactions with law enforcement. I've gotten a question, I've gotten a couple of questions that maybe don't specifically address your disagreements, but people are interested in this particular question that I would put to you both. What would, since you're on screen, Raphael, you'll suffer, what would you, if you had your druthers want to change about the criminal justice system? I'll put that to you first, Raphael, and then Radley. Raphael, what would you change? Oh, man. Well, I would certainly change our system's propensity to repeatedly release repeat offenders who have proven themselves dangerous to society and have then gone on to victimize their neighbors, again, mostly black and brown Americans. I'm thinking here of a story of a woman named Brittany Hill in Chicago in 2018 who was standing outside at the age of 24, holding her one-year-old daughter, and she was talking to her baby's father when a car drove up and the baby waved to the car, actually, just before the passenger window opened up and a man stuck a gun out and opened fire, wounding Brittany Hill fatally as she shielded her daughter from gunfire at the age of one, and she collapsed in the street and she died with her daughter in her arms. The shooting was captured on a Chicago police department camera, and so they were very quickly able to apprehend the suspects, one of whom was found named Michael Washington, who had nine prior felony convictions. Nine convictions, including for second-degree murder, was on parole at the time and out on bail on pending charges. I could go on for a really long time about things I would change about the criminal justice system, but the tragic stories of absolute carnage and destruction of families through violence that is a result of our system's leniency on too many violent high-rate offenders, to me has to be at the top of the list. All right, well, since Raphael limited himself to one, Radley, we're going to limit you to no more than two. What are two things that you change, or one and a half things that you change in criminal justice system where you could go to two? Right. There are a lot to choose from, but at first I would dramatically reduce the policing footprint in this country. I don't think we need police officers, for example, conducting or doing traffic enforcement. There are ways to do that without armed sort of agents of the state confronting you for running a stop sign or red light. I think using police and traffic enforcement increases the contact between police and particularly, again, in minority communities increases the number of search, increases the number of opportunities for situations to escalate. I think a lot of highway traffic enforcement could be done in other ways, including just sort of engineering and road design. There have been some good examples in Europe that we could look to. But then the other thing I would change is I would try to, and this is kind of more a challenge, but I think we need to think about why we have a criminal justice system and what it's designed to do. Switching from a retributive model to more of a rehabilitation model would go a long way. Again, we can look to Europe as examples where prisons are designed to rehabilitate people not just for to sort of slake our thirst for retribution out on people who commit crimes. Certainly there are some people who need to be kept from society for the safety and benefit of society. But as you touched on earlier, Gina, there's lots of data showing that when people go to prison it makes them more violent when they come out than when they went in. That prison actually contributes to recidivism. We could change that model and we could look to other countries that have successfully done that and work to sort of rehabilitate people, work with people who commit crimes to improve their odds of succeeding when they get out which we make it very difficult for people to re-enter society after they leave prison and that's bad for them, but it's also bad for us and I think changing the way we look at what the system is for is important. One final question I'll put to you Raphael which has come through. Radley has said that many of the studies that he cited do control for higher rates of crime or control for similar kinds of crimes committed by blacks versus whites and then you said that those controls have not really been made and you talked about increased the concentration of police forces in high crime areas that are often black could you that seem to be your explanation for lack of control in these statistical studies the audience is asking for you to clarify your position in that regard. Well I think I would disagree with the characterization of the studies that Radley has sort of collated as largely representing pieces of literature that actually control for all the relevant factors, like I said I have not audited the entire article but as Radley was giving his rebuttal I was able to go through the first 19 articles that were listed in his article and none of those had anything approximating the appropriate controls if for example a study finds a sentencing disparity along racial lines that also controls for criminal history that doesn't mean that criminal history is the only relevant control there are other factors like severity of the crime for example not all robberies are equal you can do an armed robbery it also doesn't necessarily reflect the actual charges that instituted the prosecution in the first place again most of these cases are decided to be a plea bargain where charges are dropped or modified and so what people actually go to prison for does not necessarily represent what they did and so to look at two robbery convictions as if the behavior was identical I think is the wrong way to look at it Can I respond to that? We ran out of time in the Q&A but you have seven minutes we're going to go to the final part I want to take a few extra seconds to respond to what Raphael said you can do so seven and a half minutes for your final summation in rattling that be adequate take it away rattling go ahead Sure so I want to respond to what he just said because I find it hard to believe that in the five minutes that I had for rebuttal he went through the first 19 studies that I listed and I was able to sort of pinpoint where they failed to correctly adjust for crime rates or geography or whatever else you think they need to adjust for that sort of strains of fragility in my mind one of those studies in fact was a study of 95 million traffic stops which found basically that black people were more likely to be searched that they were less the disparity actually lessened it got darker which suggests that police were unable to identify less able to identify the driver race became less of a factor and who they pulled over and found out that police were more likely to search black motorists despite the fact that some white people were more likely to turn up contraband and that latter point as I pointed out in my introduction has been repeated over and over and over again in these studies Raphael never sort of addressed why that would be and that would seem to be a study that's pretty indicative of hard to sort of I think reply because if it's true that black people are committing or more likely to be carrying drugs or weapons then maybe you could explain why they're more likely to be searched that's actually the opposite of that what you get when you debate someone like Raphael or other people in Manhattan they tend to cherry pick a study or two or three or four that confirm what they have to say and they write about it as if this is the only study that's ever been done on this matter they don't acknowledge the fact usually that there are dozens of studies that contradict what that study just concluded good example is I did a Google trend search last week on the name Roland Pryor is the Harvard professor who did a study on police use of force and found that while police officers were more likely to use force against black people they were less likely to use lethal force and this became sort of a very popular study for people on the right to cite and trying to contradict the claim that black people are more likely to be killed by police there are a lot of problems with that study one it relied on police reports on their own activities which is always a problem an inherent problem I think it's under this data but also the police the study on police force was limited to one city but regardless of that that was one study there have been multiple other studies since that one came out they've come to the opposite conclusion in various ways and they've tried to adjust for other factors and I did a Google trend search just the other day on this and found that on his name and then on the name of the lead researchers and five other studies that have come out since his and we're talking about the the protests and you know we're having sort of a moment for these issues and citations to his study were mentioned to this study and Google searches are outnumbered searches for the other five lead authors combined and my point here is that it's easy to sort of generate attention to the one study that finds the no racial disparity in some aspect of criminal justice when literally you're having dozens of studies coming to the opposite conclusion over and over again it's the kind of what is news is that a dog bites man or man bites dog but I think it's important that you're going to make the point that you're going to sort of tie it on this that you have to acknowledge all of the data and literature that comes to the opposite conclusion and that's rarely done in these cases again I would just say that you know when I started on this beat with Reason Magazine in 2005-2006 you know I came from a pretty conservative background I grew up in a very conservative county in Indiana and I was very skeptical of claims that criminal justice is inherently racist I accepted that there were problems and systemic problems and I think that's still true I think there are problems that affect white people and black people but I think the problems disproportionately affect black people and I think that is by design because the way the system was sort of built and honed over the years you know it was working on this beat it was seeing doing the investigations that I've done and research I've done was talking to people in these communities, talking to law enforcement leaders I mean there are people within the law enforcement community black and white who will admit that the system is a racist system and that the racially disproportionate outcomes are not the result of necessarily of inputs it's partially the result of inputs but it's also the product of the system itself I think the evidence is overwhelming I would encourage people to go to the Washington Post page where I've accumulated these studies and sort of look through them you can judge for yourself how well they adjust for the things that Raphael thinks they need to adjust for if you have a very sharp mind I guess maybe you could audit 19 of them in 5 minutes but I think the evidence is overwhelming and as I said I have included studies that have come to opposite including at least the extent that I found them I'm going to continue to update the list but so far the ratio of studies that have found disparities is 25 to 1 you know I would just close by saying we again that the idea that we have a criminal justice system that is systemically racist is not an indictment of everybody who works within that system and I think Raphael has been sort of willfully I don't know misstating what systemic racism actually means or willfully failing to acknowledge what the definition of it actually is a system that was designed to produce very specific outcomes that it was designed during an era where I think even Raphael would admit that we had systemic racism in this country we had legal legally enforced segregation in this country and the idea that sort of just pulling away the laws that mandated segregation and keeping the institutions that were alive and perpetuating and contributing to that without significantly altering or changing them we should not be surprised that we have a system that produces the outcomes that it has all right thank you Radley and now Raphael for your estimation take it away Raphael yeah well I'll start by just kind of responding to a few of the things first off what I went through are the first 19 characterizations of the studies findings by Radley not the studies themselves and all those characterizations were focused again on disparities just the presence of disparities in other words not actually saying that these studies controlled for the relevant factors that isolated the role that racial animus played in producing those disparities I did also respond to the evidence that he presented about likelihood of being searched I offered evidence out of New York showing that the city council found that black Americans were more likely to consent unwittingly apparently to request for a search and again Roland Fryer is just not the only study that has failed to find racism or evidence of racism in fatal police shootings there was another study in the proceedings of the National Academy of Sciences as well as several other shoot don't shoot experiments and there's one thing I want to talk about really quickly which is interesting because it found that officers who basically the study looked at gang unit officers at regular police officers and then civilians and it compared their performance in shoot don't shoot experiments and then it gave them bias training implicit bias training and then it had them do those experiments again and sort of compared the results and what it found was that officers who routinely dealt with quote stereotype congruent minority gang members were actually less likely to exhibit differences in the racial breakdowns of their shoot don't shoot decisions after bias training and this supports the hypothesis that race may actually be taken as a diagnostic cue in the field by police officers at least in those simulations because quote they're on the job experience with gang members and street crime creates a stereotype congruent environment that allows them to rely more heavily on heuristics and people should be troubled by that but again the question is whether they're relying on heuristics out of racial animus or out of a desire to suss out crime and what that study found was that the gang police officers actually showed no evidence of racial bias in their ultimate decisions to shoot they were just as equally likely to shoot across racial groups and the gang unit cops specifically outperformed comparison groups in detecting guns and were overall the least likely to shoot suspects you know again I think ultimately you know a big chunk of our difference here is that I reject Radley's definition of systemic racism I think we have to show and establish that there is is intent here and again for all the reasons I stated earlier I don't think that we can find intent you know for disparities you know cannot be conflated with racism there we have to actually control for the relevant factors to isolate the world that racism might be playing you know the reality is again the criminal justice system has more than just enforcement outputs and every operator of the criminal justice system at least claims to want to bring about crime declines and applause when those crime declines happen and the fact that those crime declines and you're primarily to the benefit of black and brown Americans I think drastically undermines the claim that Radley's defending here again the system's been incredibly responsive to calls for reform which are often rooted in the idea of combating systemic racism and the idea of anti-racism right we have evidence just recently again out of New York we've got you know Governor Cuomo signing 10 laws you know just weeks after George Floyd was unjustly killed right and we've got just the first or only thing we've seen a wave of progressive prosecutors elected across the country we've seen prosecutors offices you know shift to supporting parole we've seen them declining to prosecute more minor offenses we've we've seen here in New York the passage and signing of the right to no act we've seen the closing of Rikers Island we've seen the cut in jail admissions and state level incarceration we've seen bail reform discovery reform raise the age the fact of the matter is is that a system apparently dedicated to the oppression of black and brown Americans would not be so responsive to their calls for reform and I think the fact it is is another point that just undermines the claim that Radley's defending here he also again ignores I think fails to have a really good explanation for the role that black and brown Americans play in apparently perpetuating racism and the reason that he's able to do that is because he puts intent off to the side which I don't think we can do this is a very serious charge and I don't think we can just attach some flimsy definition to a term that says amorphous is systemic racism and allow people to get away with that because it does have very real consequences right people will call 9-1-1 less people will be more likely to try and handle disputes on their own which could lead to more neighborhood violence this is not a benign narrative and you know to the extent that it's being used you know to perpetuate more deep policing and decarceration I would point to evidence out of Chicago just in recent weeks right while police were busy handling riots in other parts of the cities the weekend of May 31st Chicago experience its most violent weekend of the year is that a coincidence? I mean May 31st was the single most violent day in Chicago's history since 1961 when it started keeping track I don't think that's a coincidence and again the idea that defenders of the criminal justice system consistently as I do as Heather McDonald does as police leaders across the country do argue that it's black lives that are going to be saved by the crime declines attributable to the policies that they support I think again just shows that there is absolutely no intent to produce racially disparate outcomes for its own sake the reality is that many of the disparities that we see not all are attributable to differences in crime commission and our functions of a mission that is essentially noble at its core and I think that's something we all have to remember and I'll close there okay well thank you Raphael thank you Radley for a very lively and informative debate exchange Jane please open the final vote on the resolution many of you have not seen this live stream and will and have cast an initial vote and so we're going to give you a chance those who have not seen the live stream but will be watching the video and the audio will be giving you a chance to watch the video and audio once it's released this Friday and will be giving you a few days to decide on your final vote the results will be announced next week thanks to all of you for watching we'll certainly have more online debates like these in a few weeks we will have a debate on the presidential election but I hope that will be online but I hope to see all of you at our physical space in the not too distant future good night and thanks