 People took what happened to George Floyd and grafted that onto a larger, broader narrative to make the case that this is actually endemic to American police. The statistics are starting there. If you look at things like deadly police use of force, it's an incredibly rare occurrence. The killing of George Floyd and Breonna Taylor in 2020 touched off a summer of protests over police brutality, especially toward African Americans and Hispanics. To many, the killing cemented as fact a narrative that began with the 2014 death of Michael Brown in Ferguson, Missouri, and has found expression in highly charged slogans such as all cops are bastards and defund the police. Reformers charge that cops, far from keeping the peace, are simply the most visible agents of white supremacy that systematically surveils and punishes racial and ethnic minorities. Long-stalled reforms, such as abolishing qualified immunity and ending cash bail, made big gains as massive crowds marched under the banner of Black Lives Matter. But what if the narrative that police are increasingly dangerous, violent, and unaccountable is wrong? In criminal injustice, Raphael A. Mangual argues that police violence is in fact rare and declining. He says that the criminal justice reforms favored by social justice activists and many libertarians will make life worse for communities of color. If we're going to have an honest conversation about where reform needs to happen, we have to be realistic about what the real scope of the problem is, because that's the best way that we're going to be able to assess what can actually fix that problem, and what we can reasonably expect to be the results from those efforts. Mangual works at the Manhattan Institute, the New York City think tank that played a foundational role in the shift in policing tactics that began in the early 1990s. The Manhattan Institute published the work of George L. Kelling and James Q. Wilson on broken windows policing and championed the development of the crime tracking program COMPSTAT under New York City Police Commissioner William Bratt. Mangual grew up in Brooklyn and Long Island, the half Dominican, half Puerto Rican son of a New York Police Department detective. He attended Baruch College in the City University of New York system and holds a law degree from Chicago's DePaul University. Reason talked with him about the facts and rhetoric surrounding law enforcement, whether violent crime is actually rising and what are the best ways to keep the peace without harassing and locking up innocent people. Rafael Mangual, thanks for talking to reason. Thanks so much for having me. What is the elevator pitch for criminal injustice? I guess the basic elevator pitch is that the book interrogates the dominant narratives that have been driving our criminal justice reform debate in this country. It explores to what degree is the accusation that America has an over incarceration problem, a police violence problem overstated. And how does that overstatement lead to policies that perhaps are misguided? What's the downside risk associated with that policy agenda? And who does it disproportionately fall on? The reason I asked that last question is because the narratives and the debate about criminal justice reform in the U.S. has been largely driven by concerns for discrete communities that bear the brunt of the costs associated with the kind of robust enforcement programs that have been criticized. So, I mean, you're talking about black and Hispanic or Latino populations, right? Mostly young, male, black and Hispanic. I guess why don't we start with George Floyd, right? Because that's the immediate trigger point of the past couple of years. What is wrong about the narrative coming out of George Floyd's death at the hands of police? What are the main strains that are like, okay, this is wrong. Because, I mean, we all saw what we saw, right? Which is cops indifferently kind of killing a guy who was subdued. Yeah, it was a power trip, right? I mean, it was an absolute power trip. It was something that I have not yet spoken to a police officer who watched that video and wasn't equally horrified. I think the biggest thing that the narrative about that incident gets wrong is that it is largely characteristic of policing in the United States. People took what happened to George Floyd as they have taken other controversial police uses of force and grafted that onto a larger, broader narrative to make the case that this is actually endemic to American policing. And that couldn't be further from the truth. The statistics just aren't there. If you look at things like deadly police use of force, this is an incredibly rare occurrence. It happens every day in this country, which makes it sound like it happens a lot, but you have to contextualize that reality. Okay. Can you put some numbers on that? What is the amount of police violence versus the amount of interactions with police? And is the rate going up or going down or staying the same? It's gone down significantly. I mean, just using NYPD as an example in 1971, which is the first year that the department started keeping track of their use of forces statistics and they shot more than 220 people, that numbers down to like a dozen. So significant progress with respect to that. And so I guess the city is about the same size. It's probably a little bit bigger. Right. A little bit bigger. And police, we have much more police per capita, and that's important too. But when you look at, I did an analysis in the book of 2018 data, police made more than 10.3 million arrests that year, talking about 680 some 1000 officers operating in the country in full-time uniform rules. They fired their weapons at about 3000 times that year, which comes to a rate of 0.03% of all total arrests, assuming that every shooting happened within the context of a separate arrest and involving a separate officer. I think it was like 0.4% of all officers in the country discharged their weapons purposefully that year. When you look at non-fatal uses of force, non-deadly uses of force, the numbers aren't much higher. There was an analysis that I quote in the book of three jurisdictions, one in North Carolina, one in Arizona, one in Louisiana, that looked at a million calls for service across those three departments over, I think it was a two-year period. Those calls for service resulted in 114,000 criminal arrests. There was just one fatal police shooting capturing that entire data set and police used physical force, unless the 1% of all those arrests that they made. So there is a giant disparity between the narrative that says that, hey, what happened to George Floyd, which I agree was absolutely horrifying, is endemic to American policing. This is a common outcome. This is a likely outcome of interactions between the police and the public. So likely, in fact, that people are actually advising certain communities not to bring police into situations if they don't absolutely need to. So common that parents in certain communities feel like they need to give their kids the talk to minimize the likelihood of being beaten or shot by police for something as minimal as noncompliance. But the reality is that this is a very, very rare occurrence. Now, again, not to say that policing is perfect or that there's no room for improvement, but if we're going to have an honest conversation about where reform needs to happen, we have to be realistic about what the real scope of the problem is, because that's the best way that we're going to be able to assess what can actually fix that problem and what we can reasonably expect to be the results from those efforts. So where does the narrative come from that the police are effectively an occupying army in particular types of neighborhoods or towns in America that are predominantly black, predominantly Latino? Where does that narrative come from? I think it comes from a couple of places. One is an overreliance on the disparities and enforcement statistics. You see black and Hispanic Americans overrepresented among RSDs among people against whom police use force among people who are prosecuted and convicted and imprisoned. That disparity, though, is again something else that's viewed in isolation and out of context. It fails to account for other disparities that might be informing why that disparity exists. The other thing that I think beyond the disparities that produces the narrative that we see are the videos that we have seen just getting lots of attention on social media that confirm that narrative built around the disparities, the statistical disparities. And so we have these two issues that are reinforcing one another that make it reasonable to the casual observer to conclude that, hey, well, yeah, I heard that black men are X percent of the population, but X plus 10 percent of people arrested. And I saw this video of a cop doing something really horrible to a black male. They put that together and it seems like a perfectly reasonable case to make that the reform program, whatever it looks like, has to address that particular problem. One of the issues that I have with the reliance on statistical disparities is that it fails to control for other things that might inform us. What's at the top of the list? Victimization rates, right? I mean, I am old enough to remember. How old are you? I'm going to be 36 in a week. So yeah, I am old enough to remember when one of the biggest critiques of American policing was that they weren't responsive enough to black crime. You can, you still hear references to it. That the cops don't care what happens in a black neighborhood. Right, exactly. I mean, you know, public enemy, you know, making references about 911 is a joke, right? You know, this has been sort of, that was a very common theme. We've gotten to a point now where police are actually very responsive to black crime. I mean, take New York City, for example, a minimum every single year of shooting victims, 95 percent of the minimum are either black or Hispanic, almost all of them male. Black and Hispanic males don't constitute anywhere near 95 percent of the population, right? So if you agree that the deployment of police resources should reflect the concentration of that victimization risk, then you have to accept that that deployment disparity is going to affect the rate at which police officers interact with people who fit the demographic profiles that are overrepresented in the geographical spaces in which crime concentrates. And crime is very, very concentrated. This is something I don't think people quite fully appreciate. We often hear people talk about America's crime problem or New York City's crime problem, and you know, it is all of our problems insofar as I think we all have an interest in solving it, but it is very, very discreet in terms of who it affects. So in New York City, about three and a half percent of street segments will see 50 percent of all violent crime every year. That is very, very geographically concentrated. And that ratio holds in cities across the country and cities across the world. When you combine that with the demographic concentration of who gets victimized, I think we start to see why there are so many disparities with respect to things like stops and frisks, arrests, uses of force. But you're not going to get away from those statistical disparities if you don't accept the legitimacy of the decision-making framework wherein police resources are deployed disproportionately to the places that have the highest victimization rates. So once you start there, that's I think a really prime example of how just top-level disparities fail to control for really relevant disparities that might be informing them. With respect to sentencing, you know, there's just another thing that gets a lot of attention. We see, you know, sort of top-line disparities in terms of how much time black defendants get sentenced to versus white defendants. But when you control for the crime committed, the severity of the crime committed, criminal history, all the other relevant factors, the disparity essentially disappears, which tells you a lot. At one point in your book, you quote John McWhorter, who's at Columbia University, worked at Manhattan Institute, like you do, in his 2003 book, Authentically Black, he says, racial profiling is not just one problem on the landscape of race relations. It is the main thing distracting African Americans from sentencing themselves as true Americans rather than a people apart. So to go back to this question of narratives, you know, what do you do with that? Because if blacks feel that they are bearing the brunt of, you know, occupying army that is there to kind of keep them in line and keep them out of certain neighborhoods or certain parts of America, isn't that the problem? It is. And I think the best thing to do about that is to push back on that narrative politely and with data and with good intentions. And that's one of the things that I try to do with this book, particularly in the closing chapter. And one of the biggest, I think, flaws in the sort of reliance on the disparities in terms of the distribution of the costs associated with robust enforcement programs is that it only looks at the costs. It does not look at the distribution of the benefits. And that's a story that I don't think has been told enough. So in the book, I go through some statistics about the crime decline of between 1990 and 2014, particularly with homicides. If you look at the racial dispersion of the benefits associated with that decline, what you find is that homicide decline added a full year of life expectancy to the average black man's life in America. It only added 0.14 years of life expectancy to the average white man's life in America. So I asked the question rhetorically, why on earth would a system that we are told is designed and operated specifically for the oppression of low income minority communities, particularly black communities, so disproportionately benefit those communities? When the system achieves its stated ends, as stated by the people at the systems helms, right? I mean, ask any police chief in the country, what is it that you want to achieve? How do you measure your success? I say crime declines. I want to get crime down, right? That was also true of prosecutors, at least up until recently, which maybe that's not the, you know, for people like Alvin Bragg, that may not be the top concern. But that is, I think, something that, a story that needs to get told more, because there's been, I think, a tendency to push back on the racial profiling narrative by just pointing to disparities in offense rates, which, sure, they inform those disparities to a significant degree. It's one of those factors that you need to control for. But there's a bigger story to be told with respect to the disparities in victimization, right? In the United States, the homicide victimization rate for black men is about 10x that of white men. That is a major victimization. If we are going to do something about that, that is going to produce costs that are going to disproportionately fall on those communities. But it's also going to produce benefits if it works for those communities. And that, I think, helps us see the better intentions that perhaps get masked or overshadowed by the nature of that narrative. One of the policies, particularly in a place like New York City, that gets called out a lot, is stop and frisk. Or you use its official title stop question and frisk. Explain what that policy was and why, I mean, you defend it in the book. You say this was, you know, it had a lot of benefits. Yeah, so there's, I think, first we have to explain what the difference is between the policy that was attacked in New York City and the sort of legal framework. So legally, stop question and frisk is based on a Supreme Court decision called Terry versus Ohio, where in the court recognized that it was constitutionally permissible to briefly detain somebody on the basis of reasonable suspicion that criminal activity is afoot for the purposes of an investigation. And if during the course of that interaction, you come to develop reasonable suspicion that that individual is armed and dangerous, you can pat down their outer clothing for a weapon. And if they have a weapon secured, etc. So in New York City, what was attacked was a policy with respect to that legal framework, where police officers were, at least according to the critique, incentivized to stop question and frisk people, even when reasonable suspicion didn't necessarily exist. And in a way in which black and Latino men in particular were being stopped disproportionately, and bearing the brunt of that cost in a way that violated the Equal Protection Clause of the 14th Amendment and also the 4th Amendment. And so we have to sort of take those things apart. What happened in New York City with respect to the court case that was filed against the NYPD that led to a corporate monitor overseeing the New York City Police Department with respect to this did nothing about Terry versus Ohio, which remains good law. Police officers in New York City and every city in the country continue to retain the discretion to stop question and frisk people on the basis of reasonable suspicion. What I think people don't fully appreciate about stopping frisk in New York is the role that it played in the crime decline. There is significant research showing that in the crime hotspots where stops were most heavily concentrated, that did produce significant crime declines. But I also think there's a problem with the critique. A couple of them. One is that we look at the sharp decline in reported stops by the NYPD after the litigation was concluded, and we don't see a huge rise in crime. No, we're saying decline. Right. I mean, the nausea knocked it out and crime kept going down. Right. And so people say, well, aha, this is prima facie evidence that stopping frisk wasn't doing anything good. One problem with that kind of analysis that which is that it's univariate, right? It's only looking at these two factors. It doesn't account for the fact that New York City changed in a lot of really important ways over that period. I mean, you can look at 1995 and 2013, the number of really dangerous neighborhoods in New York decreased a lot. The number of public spaces vulnerable to the kind of crime increases that might be expected as a result of a change in criminal justice policy like stop and frisk decreased. New York was able to fortify itself in really important ways against crime increases. So looking at the New York of 2014 and beyond is a very different New York than the New York of the mid 1990s. And so that's one of the reasons why I think that the effect of stop and frisk is kind of underappreciated. That seems like, I mean, broadly speaking, I think I agree with you, but that seems like special pleading to say, well, you know what, we had gotten rid of crime. And so when we got rid of this policy that we say is really important to stopping it, of course, crime continues to decline. Well, no, I do think it's important to understand that not, you know, we wouldn't expect crime to go up in a low crime locale as a result of a change in criminal justice policy. So as more of the city becomes a low crime locale, I think it's perfectly reasonable to point that out when you're when you're rebutting that particular claim. The other flaw though, I think in the stop and frisk critique is that it assumes a rate of 100% accuracy on the part of police officers who often have no formal legal training with respect to actually discerning whether or not what they are reporting back in the late 1990s and mid 2000s as a stop question and frisk was actually a stop question and frisk. I mean, one of the critiques is that the policy essentially created an incentive for police officers to engage in this kind of activity because that was the only kind of proactivity that they were getting credit for. So in New York, there are four levels of police citizen interaction. You have, you know, a request for information, a right of inquiry, a Terry stop and an arrest. The distinction between a level one, a level two, a level three stop is not always clear. These are things that really smart lawyers and judges often disagree about. Yet the existence of a stop form on file was taken as just absolute evidence that a stop had actually been conducted, even though everyone had kind of accepted the idea that police officers had been incentivized to report stops. And so if you have a level two interaction with somebody and you have this incentive structure in place, why not report it as a level three? And there was no sort of attempt to kind of do that analysis. And so I think that the stop numbers that we saw, you know, reach outrageous levels were largely artificially inflated by that phenomenon. And one of the reasons I think that is because after the stop and first litigation was concluded, and the MIPD imposed, you know, that was had a monitor imposed upon it, we saw significant underreporting when the incentive structure was flipped. So, you know, if we agree that the flipping of the incentive structure informed the underreporting that we saw post 2014, why is there no room in the debate for the possibility that the incentive structure being inverted created the incentive to artificially inflate the numbers? What broadly, to your mind, what explains the massive and universal decline in crime in the United States from the mid 90s, essentially until the current moment? I mean, there's some uptick in noise lately. But yeah, you know, what was going on because different police departments did wildly different things. Sure. Yeah. I think a couple of things. I think policing was a big chunk of it. In 1994, the crime bill added something like close to 100,000 cops to American city streets. That was, I think, a major part of it. The use of data in policing to actually inform deployment, you know, not just having, well, this is a precinct, so it gets the same amount of cops as every other precinct, you know, we're actually going to deploy resources based on what the data say are the crime trends that we need to respond to most urgently. But also criminal justice policy in general became harsher. We saw the advent of mandatory minimums, truth and sentencing. And, you know, an investment in prosecution that led to a higher percentage of felonies actually being prosecuted as felonies. And then, you know, those convictions being followed with prison sentences. And what that did was it incapacitated a subpopulation of criminal offenders that could no longer victimize members of their communities because they were behind bars. And so the uptick and incarceration coupled with, you know, the investments in policing, I think, are both together largely responsible and not wholly responsible, you know, I think for a significant chunk of that crime decline. With stop and frisk, I mean, one of the arguments about it was that it actually turned up a lot of low level things. Or for instance, in New York, it wasn't necessarily, you know, pot possession had been decriminalized, but displaying pot in public was a criminal offense. And so the cops would say, are you carrying anything? People present, you know, a joint or something, and then they get arrested for that. And that type of interaction had a massive impact on people, particularly blacks and Latinos, feeling like they were under constant and unfair surveillance. Yeah. I mean, I do think there's something to the idea that lower level enforcement actions, you know, hurt police community relations. But I think if you look at trends in things like marijuana enforcement, even what you'll see is that enforcement was largely concentrated in places with the biggest serious crime problems. I think the thought process behind that was that things like drug enforcement, even low level drug enforcement was seen as a pre to pretextually attack more serious kinds of crime. And, you know, one of the critiques, particularly within the racial debate about criminal justice is that, you know, we see disparities in enforcement trends between black and white communities, despite similarities in use trends and even in dealing trends. People say, well, you know, white communities use cocaine at the same rate. And yet we see, you know, cocaine, arrests concentrated in low income minority communities. Why is that if it's not racism? And I think the answer to that is that there is violence that surrounds the drug trade in low income minority areas that just didn't exist in, say, suburban enclaves. And one of the reasons why you saw the enforcement concentrate where it did was because police officers knew that there was an overlap between people who are committing lower level drug related offenses and more serious kinds of crime. I mean, you know, there are very few criminals who actually specialize. You know, people that, you know, there's just no such thing as someone who said, I'm just a violent offender, right? I don't, I only kill people. I don't let her, I don't do drugs. It just doesn't exist, right? People who have anti social dispositions will that'll manifest itself in a multitude of ways across a wide variance of offenses. And so if you have, you know, let's say a crew of or a gang that you think are driving more serious kinds of crime, whether it be a robbery ring or, you know, shootings, and you know that they're engaged in the drug trade, that kind of offense is going to be engaged in a significantly higher rate. And so what you want to do is impact crime. Maybe you try and get them off the street for the, for the, for the drug offense. Now we can argue about whether or not that is fair or whether or not that is I don't think we can argue about whether or not it's fair. It's not fair, but it might be effective is what you're saying. Right. Right. I think it's very effective. And I think it goes a long way toward explaining why those disparities exist. And it gives us an explanation that is, I think it's less indictable than the explanation that is often, you know, reverted to, which is that, well, this is just racial bias manifesting itself. What happens in a world where, for instance, you know, if drug dealing is the crime, you get rid of, you know, illegal markets and drugs by making them legal. Does that change the, I mean, does it mean that these criminals are going to be like, well, we can't commit crimes by dealing drugs and we're going to move on to something else? Or do they stop being criminal? I don't think they necessarily stop being criminal. But I also don't necessarily think it's going to be the case that you get rid of the illegal market by legalizing it. I mean, we see black markets for all kinds of products. Right. But I mean, not, I mean, you know, what is something like the Eric Garner death and police custody for selling loose cigarettes. The reason that story stands out is because very few people kill each other over, you know, illegal cigarettes, right? Right. And so I don't want to speak out of turn here. So maybe this is one of those things that we can just verify. But if you watch the Eric Garner video, you overhear the person taking the cell phone video about, you know, him not actually being involved in the fight. Police were there because of a different disturbance. And, you know, so again, I'm not putting words in their mouths because I... But I'm just saying it seems wrong to be like, well, you know, there's going to be a black market anyway. So we should maintain the status quo. If we, you know, and weed is not legal in New York, although the retail system hasn't been fully set up, we can assume that crime related to pot deals is going to diminish, right? Maybe. Not necessarily. After prohibition, you know, liquor related crime declined. I think it's well, liquor related organized crime. Right. Decline. Yeah. Pharmacological. Yeah, sure, sure. Increase significantly. So, yeah, I mean, I think it's going to be a question of what the disparity is between legal pot and illegal pot. I mean, you know, the illegal market in Colorado continues to exist despite legalization there. And, you know, people largely believe that that's a function of the cost differential between legal weed and illegal weed. So, yeah, I think that's, you know, there's always going to be an illegal market of consumers that won't be of age to consume. And so they'll be able to feed that. I mean, but nobody is looking at Colorado and saying, you know, the real problem here is weed, the black market weed, right? Right. So, yeah, I mean, and I don't think anyone's ever really looked at it that way. I think the question was, what are the tools in our belt that we are officers to get individuals we suspect are involved in more serious kinds of crime off the street? And if this is what we have today, then this is what we have today. Again, you know, I think that kind of approach can be critiqued on multiple grounds. So, I guess, let me, because I want to move on to other topics. But, you know, is it if, you know, what John McWhorter says, or if there is a widespread sense that we are being targeted? And, you know, and you're basically saying, you know, the police use stop and frisk as a way of targeting people that they had a hunch, you know, this is like a Dirty Harry movie, Dirty Harry has a hunch. And of course, he always turns out to be right, you know. But you know, what what do the police do to win back a sense of trust where they are actually working not on behalf of criminals, but on behalf of law abiding citizens, but to protect them and also not to harass the, you know, the boys who are who are good kids. Right. Yeah, I mean, I think it's doing a better job of communicating the why. Right. And that's the one thing I think that got lost in New York City's policing story was the reality that what drove these decisions misguided, though some people may think they were, was a sincere concern for the welfare of people living in the communities that were suffering from the brunt of the crime problem. You know, in the book, I tell a story about a police officer that I interacted with in the city of Chicago, black guy, who, you know, and I'm paraphrasing here, this was years ago, but he said to me, look, look, there is such thing as a racist cop. But the racist cops that I know all say the same thing, which is that I'm not going to get out of my car and be proactive, let them kill each other. The cops who get out and are proactive and are hitting the street and stopping people and trying to uncover criminal activity, those are the ones that truly care. And that's how, you know, that's that's what that activity reflects. It reflects a sincere attempt to alleviate a real problem. And I don't think that the department did a great job of making that clear. And I think it was very easy for the media to kind of reframe what the statistics showed around that. But again, I think if you go back and look at, you know, who the victimization statistics show are bearing the brunt of the cause associated with crime, that I think paints a much more flattering picture of the efforts of the NYPD, even if they fall short of, you know, some kind of ethical standard that people identify. You know, you also mentioned at one point in the book that it I guess was a 1994 crime bill when disparities for various kinds of drug related offenses were jacked up. This is 1986. I'm sorry, 1986. Yeah. Powder versus crack cocaine and that it was something like 16 out of 18 members of the National Bacock Caucus were in favor of it. Has there been a shift in the kind of leadership of black and Latino groups to go from calling for more policing to saying no? Well, I think there's been a shift in the voices identified as spokespeople for those communities. But I think within the community's report, the support for policing remains high. I mean, Gallup just did a poll last year, found that 81% of black Americans wanted as much if not more policing than they were currently getting, which is, you know, a very high number. Can you know offhand what was the, you know, relevant statistics for whites or Latinas? I don't know off the top of my head. So I don't want to take a guess at it. But it was being significantly high. I mean, policing continues to enjoy a lot of support as a public institution. So I don't think that is different. What I think is different is that you now have groups like BLM that are seen as speaking for the community in ways that, you know, maybe the more radical groups weren't seen in the late 1960s, 70s and 80s. And so that I think has been, you know, probably the most significant change. But, but yeah, I mean, I do think it's an underappreciated story that, you know, with respect to something like the Anti-Drug Abuse Act of 1986, which is, you know, really talked about today as like one of the most racist pieces of drug policy that you could identify that, yeah, 16 of the 19 members of the Congressional Black Caucus co-sponsored that bill, it passed the Senate in 97 to three. And even, you know, four years later, you can, you know, go back and watch William F. Buckley, white founder of National Review, debating Charles Rangel, black congressman from Harlem, where Charles Rangel is, you know, proposing at one point in the debate life in prison for certain crack dealers and William F. Buckley is arguing for legalization. So there was a lot of support for, you know, increased drug enforcement. The Rockefeller drug laws are another really great example. You know, Michael J. Fortner wrote a great book on this black silent majority that tells the story of the role of the black community in building up the Rockefeller drug laws, which were the mandatory minimums, you know, here in New York. And a lot of it had to do with the violence that was surrounding the drug trade in places like Harlem and the South Cross. And so I think you will continue to find support for that kind of police pro-activity in low income minority communities that see elevated levels of crime. But there is this kind of new infrastructure in place where you have these people who are just sort of the front and center voices in the media that are presumed to speak for these communities. And that is, I think, new. Let's talk about qualified immunity, because this is a topic that went from being extremely obscure to being, you know, kind of talked about all the time. What is qualified immunity and what is the argument in favor of maintaining it? So it's a legal defense available to any kind of government agent in a federal civil rights case. And the defense is basically, I think, best understood as a protection against exposed factor liability, right? Has, you know, let's say we find that this action violates either the Constitution or some other kind of federal civil right. Did you have reason to know before you engaged in that conduct that this actually violated the right in question? If this finding represents an actual shift in the law, then we are going to protect you against liability because you weren't on the list of that rule. And so, you know, I think that the strongest argument in favor of maintaining it is that it gives, you know, police officers and, again, teachers, any kind of government official, a protection against what would be seen as an unfair sort of prosecution of a civil case whereby they'd be personally liable for a conduct they engaged in without, you know, reason to know that it would have been infirm constitutionally. And, you know, the sort of, I think, legal argument is that it's a sort of natural extension of the kind of, you know, protections that existed, you know, early on in American jurisprudence. Now, I think both sides of this debate kind of overstate their cases. I think critics of qualified immunity are wrong in the following way, which is that the sort of harshest critique of the doctrine goes a little something like this. It's, you know, police officers have this protection. They carry that legal protection with them out into the field and engage in misconduct they wouldn't otherwise engage in if they had more financial skin in the game. A couple of problems with that story. One is that it assumes that qualified immunity plays a significant role in police litigation. It doesn't. Less than 4% of cases of case outcomes in police litigation are actually disposed of on qualified immunity grounds. So we're already talking about a very small percentage of those kinds of cases. Police officers are very likely to lose and, you know, plaintiffs are very likely to win settlements. There's a database that the Legal Aid Society maintains in New York. I think it had like 2,400 cases between 2015 and 18. And I think there were only like 70-something cases that were disposed of in favor of police defendants. So even if you assume that all 70-something were disposed of on qualified immunity grounds, it's still like 3.5%. The other thing, though, is the reality of indemnification practice. Indemnification is the act of a municipality or a state or some other government body paying the bill for legal liability, even when a police officer is found to be personally liable in their personal capacity. And so the vast majority of police officers operate in departments that have indemnification clauses by virtue of either the collective bargaining agreement or by statute, state, or local, which means that the source of financial protection isn't actually qualified immunity. It's indemnification. And so getting rid of qualified immunity today wouldn't do anything about it. But why not get rid of it then? Why not get rid of qualified immunity? Yeah. If it is in so few cases and is covered by these other practices. Yeah. So my basic take on this has been that qualified immunity should be reformed significantly. And the way that I would go about doing that is to maintain the availability of the doctrine, specifically for those kinds of cases in which you have a true shift in the law, because it really doesn't make sense to hold an officer liable, even if the department's going to flip the bill for conduct that they wouldn't have otherwise known would have violated the Constitution because it represents a real shit, is to reestablish what's called the Sausier sequence. So there's a Supreme Court case called Sausier where the Supreme Court said, in a qualified immunity case, you have to first answer the question of whether or not a constitutional right was violated. And then if it was, then you can determine whether or not the right was clearly established. This is the sort of crux of the argument, is the clearly established prompt. Subsequently, the Supreme Court overturned that case and said, you can just dispose of cases on the clearly established prompt. So you don't actually have to decide whether or not a constitutional right was violated. So a lot of cases that are disposed of in qualified immunity grounds are assumed to involve constitutional violations, but that assumption doesn't necessarily hold water because the determination hasn't been made because the constitutional question was avoided. So I think what we should do is maintain qualified immunity but reestablish the requirement that judges actually do the constitutional analysis. What this would do is it would more quickly shrink the scope of cases in which the right asserted is not clearly established. And over time you get to a point in which it's not even real defense anymore because you've actually done the work of establishing the scope of the Constitution's protections. So yeah, but I think if we did get rid of qualified immunity today it wouldn't drastically increase the scope of liability for police officers. And so that's why I think that side of the case overstates, is overstated as well. One of the major parts of the book is where you make the case against mass decarceration. And this is certainly a major motif and criticism of law enforcement that America is the biggest jailer nation on the planet. Certainly there have been major ramp-ups or were starting really in the late 50s, but especially in the 70s and 80s. How do you answer the argument that there are too many people in jail in America? I think the best way to assess whether we have mass incarceration problem is to ask the question of whether we can safely decarcerate on mass. And I don't think that the data show that we can. And a couple of reasons for that are that one, if you look at who's actually in prison in the United States today, the vast majority of people incarcerated are incarcerated primarily for serious violent offenses. Even the ones that aren't incarcerated primarily for violent offenses have violent criminal histories. And almost all of the people incarcerated in state prisons in the U.S. and state prisons account for about nine out of every 10 prisoners are extremely likely to reoffend if released. The recidivism rate over 10 years is between 80 and 83 percent, which is very, very, very high. On average, those individuals will generate five re-arrests over that period. Many of those re-arrests will be for serious violent crimes. We know, for example, that in cities like Chicago, the brunt of the violent crime problem has long been and is currently really concentrated and driven by people who have very extensive criminal histories. So one of the critiques of incarceration is that the U.S. kind of systematically denies second chances. I mean, that's just not true. If you look at the average person leaving a state prison in the U.S. today, you will see someone who has more than 10 prior arrests and about five prior convictions. This is before their most recent incarceration. So these are people who have had multiple bites at the apple and have consistently failed to play by society's rules. Historically, going from 1990 through the early 2000s, more than a third of serious violent felonies convictions were involving people who were either out on probation, out on parole or out on pre-trial release. So you have all of these statistical realities showing that people who are incarcerated today are very, very likely to reoffend and have shown that through their criminal histories because they're often very chronic offenders. So how do we get to a point in which we can reach parity with the Western European democracies that we're often unfavorably compared to without putting the communities that these individuals would otherwise go to at significant risk? And I just don't think that's a question that's been answered sufficiently at all. Yeah, we have 5% of the world's population and 25% of its prisoners. But we also have, and this is something that in the context of the gun control debate, it's often very easily recognized, we also have a much higher rate of the kinds of crime that would land you in prison anywhere in the world if you were caught and convicted. I mean, Germany's sentence is a higher percentage of people convicted of murder to life in prison than does the US. In the UK, the mandatory minimum for illegal gun possession is five years. You're going to serve about three and a half years of that sentence. In lots of parts of this country, you're going to get probation for that. So it's not necessarily the more punitive, we just have a lot more serious crime of the sort that is likely to result in a lengthy prison sentence. But we also have more resources than a lot of other places in the world to dedicate to our criminal justice apparatus. I mean, Brazil has a much more significant violent crime problem, but a lower incarceration rate, I think that's largely a function of the fact that it just doesn't have the resources to dedicate to policing and criminal justice infrastructure that we have here. And so, yeah, it's not something to be proud of necessarily, but it doesn't I think indicate a systemic failure. Is the metric, though, that we, you know, in order to get to, you know, the incarceration rate of Germany or of England, that would mean getting rid of tons of people? Or is it from, you know, historic moments in America's past? I mean, because I don't disagree with what you're talking about, but it's not the question of like, do we cut the incarceration, incarceration rate in a third, but need it be where it's at? Yeah, I mean, well, I think a couple of things. One is that we have to recognize the incarceration rates been moving down for well over a decade now, you know, just between 2009 and 2019, I think we cut our incarceration rate nationally by about 17%. Huge uptick in decarceration in 2020 and likely 2021, which means that more recent numbers will show that trend accelerated in the last couple of years. So we have moving in that direction. And that has coincided with a significant increase in crime. So, yeah, I don't think in the past two years, in the past two years, yeah, but also really more than that, right? 2015 and 16 saw significant increases in homicide across the country. But those are mostly slight back as well. I mean, so it's, I mean, it's confusing right now because clearly, you know, the pandemic and the shutdowns, you know, change things, and it seemed early on that there were going to be a lot more homicides and shootings. Those seem to have receded, but other types of property crime and assault. They've receded in some places, but not everywhere, right? You know, homicides and shootings are down about 10% year over year in New York City right now. So we're coming up to the beginning of September. But other serious crime is up pretty significantly. And homicides and shootings are still up much more than they were pre-pandemic in pre-2019. So, but, you know, you have places like Baltimore, Philadelphia that are, you know, seeing all time highs, you know, on these figures, Louisville. So that's something that I think needs to be accounted for. But, but yeah, I do think that even if we're comparing our incarceration rate today to the incarceration rate, you know, when say the 1970s, we also had significantly higher crime in the 1970s. And, and so no, I don't think we could safely get to that point either. I mean, again, for the parts of the country that are likely to suffer, the kinds of crime increases that I think would predictably be the result of that kind of effort. But one of the reasons why I point out that, you know, the sort of flaw in the argument that you're trying to achieve parity with other Western European democracies is because it's, that's the rhetorical tool that's so often leaned on by critics of America's incarceration rate, as they say, well, you know, where the world's, well, even if we got to, you know, even if we cut incarceration by 25%, we're still going to be the world's leader in incarceration by a significant amount. I'm assuming if you're a part of that 25%, that doesn't go to jail. You know, that's good for you. And if you're not a violent criminal, you know, that's maybe, you know, but it could also mean significantly worse outcomes by virtue of your presence on the street. I mean, we see lots of people targeted, you know, who are involved in crime. There's a lot of overlap between crime victims and crime offenders, particularly with respect to, you know, serious violence. So it's not necessarily clear to me that someone is always better off in the general population than behind bars. Talk about pretrial detention because it's also another big part. You know, there has been a push and certainly this has gained a lot of currency among libertarians. Myself included the idea of getting rid of cash bail because cash bail, the argument goes is that it is, you know, punitive to people who don't have the ability to pay it. And it doesn't actually serve the function of keeping people around, you know, for trial and things like that. You take a great issue. I mean, this is, you know, chapter three in the book is about pretrial detention. What's the case for cash bail? So I'm actually very sympathetic to the critique of over reliance on cash bail and monetary conditions on release, precisely because I think it's an inefficient and inequitable way to produce public safety benefits, because you do end up with situations in which you have a sort of rich, but dangerous defendant who gets to buy his or her freedom, whereas a sort of, you know, indigent but relatively harmless defendant gets stuck behind bars because they can't come up with a few hundred dollars. So I am all for significantly rolling back the role that cash bail plays in pretrial release decision making. What I would do is reorient that pretrial release inquiry around risk, which is, I think, the best way to be efficient and equitable. And that's the risk posed by the defendant? By the defendant to the community. Not just the risk of flight and not, you know, an absconding, not coming back to court, which, you know, creates a need to expand resources on, you know, finding that person and getting them to come back, but also the risk of reoffense, which is significant because, you know, a not insubstantial number of serious violent crimes are committed by people who are out on pretrial release. And so, you know, take New York, for example, New York is, I think, an outlier in a lot of ways. We're the only state in the union that doesn't allow judges to consider dangerousness. But what you see with a lot of bail reform efforts and efforts to curtail the role that cash bail plays is that you see a lack of willingness on the part of judges to sort of pull the lever of remanding people on dangerousness grounds. And that's what I think defenders of cash bail lean into. They say, well, this is the only way to sort of keep people inside because it, you know, it increases the chances that they won't be able to come up with the amount. And, you know, I think that's largely the wrong way to go about it. Now, I wouldn't entirely eliminate cash bail. And I wouldn't eliminate it for the following reason. I do think that there is likely to be some subset of the pretrial population for whom you could sufficiently mitigate the risk of reoffense by attaching their compliance with release conditions to that bail amount without having to incarcerate them. So, you know, for people who you can do that for, I think it's better to just have them pay some amount than just put them behind bars because there is a cost associated with that incarceration. And you do stress in the book that New York is different than other states because it does not allow for the risk assessment. And I found this interesting that in 2018, only 10 percent, again, this is people in New York of arrested people entered a jail due to inability to make bail. Right. And the vast majority of them were able to secure their releases within a few days, right, a month. Yeah. Well, a month is a long time. A month is a very long time. Two days is not. But that's, you know, pretty interesting. You rely, or one of your inspirations is George Kelly. Explain who he is and what you find so compelling about his work. So, George Kelly is a sort of co-inventor of the broken windows theory former senior fellow at the Manhattan Institute until he passed a colleague and a mentor in a lot of ways. To me, I got to work with him very closely in the last couple of years of his life. You know, a brilliant criminologist, sociologist who made real contributions, you know, to the public safety debate and I think played a major role in the sort of ideas that helped drive the crime decrease in New York City that I think led the way in creating the model that lots of other jurisdictions around the country. Would you say the two kind of things coming out of New York that really changed policing in positive ways was broken windows. The idea of maintaining civil order and the appearance of civil order going after nuisance crimes and then also comps that, which you mentioned, I don't think by name earlier, but the idea of using putting resources in hotspots, in criminal hotspots to kind of drive out that. And not just putting resources in criminal hotspots, but also identifying patterns, temporal patterns, right? Like this offense is likely to happen within this time frame around this subway stop, you know, and we can identify a pattern that maybe links, pockets, you know. So, you know, if it's happening here, this place looks a lot like that place. Right. And maybe this is the same. And comps that started as a, it was in the New York City transit system, right? It was essentially the subway system and they came up. Kelly, I mean, it's fascinating. One thing I just want to add, it was also an accountability tool. That I think was, you know, one of the major innovations with comps that it didn't just give police a better idea of where to deploy their resources, but it also allowed them to track the effectiveness of different levers pulled by precinct commanders to address the crime patterns that those, you know, data points were identifying. And that was a real innovation because before that, you could have a really in effective policy in place for a long time before someone got rid of it, because you didn't have any immediate feedback in the data. But is there, is there problems once you start to, you know, demand that kind of accountability, you get quotas, you get fudging of data, I mean, this happens in school, you know, education results, policing, all sorts of things. Yeah, it's a risk. It's certainly a risk. The question is, is what's the alternative and is it better than the alternative? And I think, you know, operating in the dark is just going to produce worse results over time. So I want to kind of end with Kelly, because I agree, he's a fascinating character. And what is amazing about him is when you read his work, incredibly nuanced about, you know, broken windows when he and he said when he and James K. Wilson came up with it, it was an idea that it was a theory that needed to be tested out. And then, you know, he basically said, you know, he thinks it worked pretty well. But in an interview with the New York Times in 2014, he said, social workers should accompany the cops. We shouldn't be using our jails as mental hospitals or drug rehabilitation sites. He said stopping and frisking was overused during previous years. And that responding to minor offenses and zero tolerance was zealotry with no discretion, the opposite of what I tried to preach. Do you feel like a lot of his nuance or a lot of his work has been lost in that, you know, on your side of the debate, not you necessarily, but people are like, no, you know what? Black lives matter. What are they? Why are black people complaining when they see George Floyd or Breonna Taylor killed? He seems to be saying something quite different. Well, yeah, I do think it's different, but I also think it's less related to the kinds of offenses that led to the deaths of George Floyd and Breonna Taylor. But no, I do think that there was a lack of appreciation for the space to respond to lower level disorder, not with an arrest, right? Yeah, which he also talked about, the discretion of the police. Discretion was kind of the centerpiece of broken windows as George Kellogg saw it. And it was a very, very important thing, right? You didn't have to just put someone in cuffs. You come and you say, hey, stop doing this. I need you to clear out, you know, lower the radio, whatever it is. Now, the reason that enforcement has to remain on the table is that police officers ultimately have to have an answer to the question of or what, right? You know, if you try to exercise discretion. But it's also, it is discretion. I mean, this, you know, we kind of go back and forth between extremes because you don't want a cop to have total discretion because then they can become like a warlord, right? Well, this is, and this is, I think, you know, one of the things that the reform movement has failed to appreciate is that, you know, what they saw as the problems associated with police officer discretion created these kinds of systems where police action was so constrained that, you know, the sort of choices on the table were less likely to reflect the kind of breaks that, you know, exercise discretion might have produced. And so you kind of revert to these kind of quantifiable, you know, actions and measures that, you know, maybe weren't the best thing for everyone. And that includes things like three strikes and you're out in mandatory minimum sentences with judges often would denounce because they took away their discretion. Right. Yeah. You know, but again, I think that's, that's also something that's a little different because now we're not talking about low level enforcement, things like we're talking about convictions for really serious kinds of offenses. And, you know, one of the reasons why those policies, you know, came to be was the function of judges exercising their discretion downward and, you know, not sufficiently incapacitating people who had committed these really serious offenses. And so, you know, yes, I think there is a problem with those kinds of policies, but it was a problem that was created in an attempt to solve another problem that was just as real. So another quote that I came across while I was, you know, doing research to talk with you and your book, I, you know, I would urge everybody to read. Everybody I know and everybody who is, you know, very much into the reform of, you know, law enforcement and things like that. But in 1994, Kelling, again, talked into the New York Times and this is at a moment when, you know, everybody, including Hillary Clinton and Joe Biden and people on the right were talking about super predators and crime was just going up and, you know, everybody was, you know, forecasting just horrors and, you know, right before it started to decline. But he said, when you turn people into warriors and there are wars on crime and wars on drugs, don't be surprised when they abide by the rules of warfare rather than the rules of peacekeeping. Do you think that that is being forgotten, you know, by conservatives or by law and order people now that, you know, this, you know, that to and to think about that quote from John McWhorter, if there is a perception that the police are, you know, an occupying army, I don't think police see themselves that way. Yeah, sure. But what do they do to address this on a certain level? And maybe this is it might be unfair, but the police have the guns and they have the law on their side. What do they primarily what do they need to do in order to change the change the narrative? I think play the public relations game much better than they currently do be more transparent with data. Do a better job of explaining the intricacies of police work. I mean, you know, one example of this, I was having a conversation with a close friend recently, and they were watching a body cam video, and someone was asked to step out of their car during the course of the traffic stop and said, well, he can't do that. He can't ask him to step out of his car without some kind of evidence that will signal actually can. You know, there's a Supreme Court case that, you know, Pennsylvania versus Mims that says, like, you know, that you're detained, it doesn't matter whether you're detained in the car or outside of the car, the police officer can ask you to step out. But people don't know this. And so, you know, I think more can be done in the procedural justice realm to encourage police officers to actually explain their actions as they take them where there's room to do that. Obviously, there are going to be cases in which the time just doesn't exist. And there's a sense of urgency. You know, so doing that, I think would actually go a long way. And just doing a better job of informing the public of, you know, what the legal realities are. And maybe, you know, explaining the reasons behind why police officers do what they do, why, you know, they're going to be on edge if you don't pull over right away and, you know, take them on a trip for two miles before you go into a gas station. You know, so I think that's going to be a huge part of it. But also, I think the media can play a much better role of just being a more neutral arbiter of the information that's out there. I think the media has failed, the legacy media has failed in a lot of really important ways by sort of leaning into the really low-hanging fruit to sort of substantiate the narrative that McCorder was talking about. And, you know, highlight cases that, you know, maybe confirm that and don't really put those cases in their proper context. And so, again, you know, I think that people who subscribe to these ideas that I disagree with are mostly blameless insofar as the average person just doesn't have the time or resources to go in and do the kind of analysis that I do in the book and look into what the data say, right? They're going by what their trusted sources of information tell them. And again, if you're just a casual observer of the debate, this is, you know, not an unreasonable conclusion to reach because you wouldn't have reason to think that, you know, there are statistical games being played or whatever. And so, you know, I actually think, in addition to police officers just doing a better job of, you know, sort of playing the public relations game and being better at procedural justice issues, you know, the media I think has to step up and fulfill its responsibility more dutifully. I guess as a final question, you know, we're talking in Manhattan, we're talking in New York City where Eric Adams, who is the mayor, former cop, kind of internal affairs type guy, you know, one of the things that was kind of striking and it was reason talked about it a lot. Not many other people did, I guess, but when George Floyd was killed, what was most amazing is that even the police union there was like, no, this was murder, this was homicide, this was a crime. Does, you know, do the police need to do a better job in policing themselves? And I guess yes or no on that. I think, yeah, there's always room for improvement. You know, I think the question that we have to ask though is, is the scope of that problem being accurately articulated to the public? Yeah, I think there are clear inefficiencies. I think there are ways in which there is a strong case to be made that police executives should retain more discretion to discipline the officers in their command. And again, that's a double-edged sword, right? Because like, do they let them off easy? Right. But there's a reason that the kind of provisions that we see in collective bargaining agreements as the sort of source of the protections that are often singled out as unfair, there's a reason that they exist. One is that municipalities are often perfectly happy to trade that kind of concession for money upfront. And so there's a role that municipalities and governments play in creating that problem. But I do think that, you know, there is a real sort of job security concern in policing that is kind of unique to that profession because it's the sort of profession that over time you're developing a set of skills that isn't necessarily transferable in some obvious way into another line of work. And so it's understandable that police officers would want some kind of protection, you know, should they end up in a situation in which they lose their job. And so, you know, raising the transaction costs and, you know, taking them down that road are hybrid. You can, you can trade for that, right? You can increase the amount of money that you might make upfront, which I think is probably a good way to go about it and a better way of getting the kind of concessions for unions that I think people want to see. At the risk of alienating the sad portion of our audience that does not live in New York or the greater New York area and thinking of New York as, you know, the city that sets the trends for a lot of other things. I mentioned Eric Adams is mayor. He has a dicey relationship with the police here, but it's better than Bill de Blasio, his predecessor. Do you have a strong sense that New York, which is going through this, you know, a spasm in crime where things like certain types of assault, certain types of property crime are going up, shootings, murders are coming down a little bit? Do you sense that we're at the beginning of a new era of a ramp up in crime and civil disorder? I do. I do. And the reason is not because I don't have faith in Mayor Adams or the New York City Police Department, but I think that there are structural impediments to their efforts actually having the desired effect in the form of all kinds of reform proposals that have been enacted over the last several years. I mean, you have raised the age, you have less is more, you've got bail reform, you've got discovery reform. In New York City, you've got, you know, right to know act, you've got the abolition of qualified immunity, you've got the diaphragm law, you've got the, you know, federal oversight of the MIPD, you've got, you know, just all sorts of, you know, the Rockefeller drug laws being rolled back in 2009. I mean, so many different, so many different levers have been pulled that have, I think, systematically lowered the transaction costs of committing crime, while at the same time systematically raising the transaction costs of enforcing the law. And so what that's done is I think it's created the conditions for the kind of problems that we're seeing now fester. And, you know, there's nothing over the horizon in the immediate term that I see is sort of mitigating that risk or alleviating that problem. So I think that we're going to be stuck with increasing levels of disorder, increasing levels of crime for, you know, the next few years at least until some of those reform efforts are reconsidered and rejiggered. I sincerely hope I eat crow on that prediction. It's not something that I want to see that I'll take any pleasure in seeing specifically because again, it's not something that's going to affect all New Yorkers equally. You know, crime is and has long been and will probably always be very hyper concentrated. And so when, you know, what I hope people get from the book is a sense that I sincerely care about these communities. This isn't just, you know, a sort of culture war kind of book. I don't just want to say, you know, you BLM activist bubble are wrong. I come from this community. I have family that live in these communities. I care about the outcomes. I don't want to see kids scared to walk past a certain group of, you know, gang members on their way to school. I don't want to see parents feel guilty about, you know, sending their kids out to do chores because they heard gunshots in the alley behind it. You know, it's like that, that kind of crime and violence, it saps, you know, the richness of your life. It creates all kinds of problems that go well beyond just the immediate victim of any kind of criminal offense. I mean, you know, you and I are old enough to remember the DC sniper situation, right? How many people do you remember watching tell news reporters that they would take all kinds of crazy precautions zigzagging through parking lots, driving past the end of their gas tank. If it was nighttime, their statistical likelihood of being targeted by the DC snipers were on par with being struck by light, yet they were taking these drastic measures to change their day to day life. Now imagine what it would be like to live in a neighborhood where someone gets shot at a week, where the possibility of you being mortally wounded is about as high as you graduating from college on time. You know, that is what I want people to get from this book. I genuinely care about the disproportionality of the risks associated with crime. And this is the best way I know how to mitigate those risks. I think we are playing a very dangerous game. And it's a game that we're playing with the lives of people who aren't fortunate enough to live in the sort of safest places that most Americans live. Right, we're going to leave it there. The book is Criminal Injustice. Rafael Mancual, thanks for talking to me. Thanks so much for having me.