Rafael Mangual joins Brian Anderson to discuss rising disorder in New York City, the city council’s just-passed package of police reforms, the causes of the crime spike, and the future of public safety in U.S. cities.

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on today's show is Ralf Mangual, the City Journal contributing editor and a senior fellow at the Manhattan Institute. You can find him on Twitter @Rafa_Mangual. Ralf started at MI as a project manager for legal policy, but he has since become an important voice on public order and criminal justice issues, which will be the subject of his forthcoming book, which will be out next year. In City Journal, Ralf has written about the consequences of various reform initiatives from lax bail measures and prison closures to the progressive prosecutor movement and new constraints that police are facing on the streets today. Ralf as always, you've been on the show before. Thank you for joining us.

Rafael Mangual: Thank you so much for having me. It's always great to be on with you, Brian.

Brian Anderson: Ralf, I'd like to start with a piece you've just published for City Journal this past Friday. The various police reforms that were enacted recently by the New York City council. What's in the specific legislation that has you troubled and what effects will it have on police going forward?

Rafael Mangual: Yeah, there are a lot of things in the legislation. I won't go into every aspect of every bill in the package, but I will pick out a few. First, there is a kind of qualified immunity work around that's in here now. Qualified immunity is this weird formerly obscure legal debate that's been going on for quite a while, but it really came to the fore in the wake of the George Floyd incident in Minneapolis. Where you had a lot of people sort of writing these pieces, implying that Mr Floyd's family might have trouble recovering damages from the government of Minneapolis because of this qualified immunity doctrine. Which offers immunity to police officers when they're acting in the course of their duty and violate somebody's rights in a way that had not been clearly prohibited by prior precedents.

I have written in the past that this debate kind of reflects an overstatement of the case by those on either sides of the question. So you have advocates of qualified immunity reform, I think overstating the degree to which qualified immunity prevents plaintiffs from recovering in these kinds of police misconduct cases. And on the other side, you have sort of police unions overstating the degree to which police officers will be financially burdened by qualified immunity reform. And so what the city did was basically, create a workaround, so that it will now be more likely that police officers can be sued in their personal capacities. Now that may not change a whole lot in the end because in New York City, like in other jurisdictions around the country, New York City police officers are indemnified against personal liability by the city. However, there is some worry within the rank and file that what we'll start seeing is the law department push back on indemnification and be more willing to fight officers on, on whether or not the particular conduct was actually in the course of duty, et cetera.

Another thing in the reform package was something that would require police officers to now live within the five boroughs. This is particularly problematic at a time in which the New York City Police Department like other departments around the country has had real problem recruiting and retaining officers. We know that New York City is one of the most expensive places to live in the country. Taking some of the more affordable communities, particularly for officers with families off the table and I'm thinking here of towns in Nassau, Suffolk County, Westchester County, et cetera. Where you can buy a lot more property for your money as compared to what you would get in New York City for an equally safe neighborhood. We're going to really raise the transaction cost of a career in policing at a time when we can least afford to do so, particularly for younger officers who are not very advanced in their careers and aren't earning as much as senior officers in higher positions might be earning.

In addition to that, there is this provision that would take the final call as to officer discipline out of the hands of the police commissioner and put it within the realm of the responsibilities that fall to the civilian complaint review board. This I think is only going to feed the perception for police, that they are not going to get a fair shake whenever it is that they are alleged to have made a mistake in the field or engaged in some kind of misbehavior. One of the reasons I'm troubled by this is not necessarily the individual impact of either one of these sort of examples of the reforms that are included in this package, but rather, it's discouraging because it comes at a time in which New York City just closed a year in which homicides jumped to 45% and shootings nearly doubled. They increased by 95% or 97%, I should say.

What's also interesting is that homicides increased in New York City very, very slightly in 2018 year over year. They increased by three that year. In 2019, they increased by about two dozen. And then in 2020, they increased by almost 150. And what we are seeing now is sort of the first time since the turn of the century in which we've had consecutive years in New York City of rising homicides. And of course, that problem is hyper concentrated in some of the city's most vulnerable neighborhoods. And when you see that happen and this is what the city council is prioritizing, what it tells you is, that there isn't a real constituency for law and order that has the city council's ear. And that's, what's really troubling, is that rather than spend its political capital on things that might be calculated to decrease crime, the city council has really seen fit to just go full steam ahead on the reform front. And I think that is going to set us up for a particularly disappointing 2021.

Brian Anderson: In our special issue, New York City Reborn, which is just out, you've got a bigger article looking at some of the other reforms that have been pushed through in recent years, that in your view are contributing to this new crime environment. I wonder if you could talk a little bit about some of those changes that have also taken place, especially with regard to bail reform.

Rafael Mangual: Yeah, no. Absolutely. I mean, one of the interesting things about this most recent reform package from the city council is that, if you look at the rhetoric around criminal justice reform debates around the country, but also here in New York. You get the sense that criminal justice reform is just sort of fighting this underdogs cause. That somehow it's long past time to start changing the law. When in fact, if you actually look at the city's recent history, there have been quite a few reforms enacted in recent years. And so just to go over a few of them. In 2017, Brooklyn elected a new district attorney in Eric Gonzalez, he is one of the sort of stalwart figures in the so-called progressive prosecutor movement. Who's used his office to decriminalize a bunch of different offenses to support the parole bids of those who've been convicted in cases within that office and has increased pretrial diversion, including in gun cases.

In addition to that, you've had Mayor de Blasio expand his own pretrial diversion effort, specifically the Youth Engagement Track, which is meant for teenage offenders, expanding that eligibility for people who have committed even first degree robbery, which is troubling. At the state level, you've had the raise the age law. A discovery reform, which has really raised the transaction cost of criminal prosecutions. But also of course, as you mentioned, the bail reform, which went into effect on January 1st of 2020, and has really led to a particularly sharp increase in the number of people who are now spending the pretrial period out on the street. Whereas, you might've had more people in pretrial detention.

The bail reform is particularly frustrating because New York City had been kind of using cash bail for a long time. And I think really put itself behind the eight ball, by overly relying on a monetary release condition like cash bail, which was basically used as a way to keep particularly dangerous offenders behind bars. And the reason that bail had to be used to do that is because New York has always prohibited judges from considering dangerousness in pretrial release decisions. This is an archaic prohibition, in my opinion. And it's one that New York had the opportunity to get rid of when it did its bail reform and it chose not to. So not only did New York state make it more likely that defendants will be released pretrial because they will no longer be eligible for bail. It also did that, while maintaining the prohibition and the judicial consideration of dangerousness, which means that there really isn't any mechanism that exists anymore for judges, even one as inefficient as cash bail for judges to keep dangerous defendants behind bars.

Because COVID has sort of delayed the pretrial justice period or elongated the pretrial justice period by delaying the sort of course of a criminal trial, you now have people who are likely high rate offenders who are spending a lot more time out on the street. And I think we're starting to see some of the effects of that and that's just sort of the tip of the iceberg. I mean, the state has been decarcerating at a rapid rate. I mean, Andrew Cuomo likes to brag that he has closed 17 state correctional facilities during his tenure, which is more than any governor in history. And of course the police department has really stepped back on a number of fronts. You've had stops go down after the conclusion of the litigation when Mayor de Blasio took office. You've had arrest decline significantly since 2013, I think almost down 37%.

So there's been a real shift on all fronts with respect to crime and justice in the city. What I fear is that, the fact that this particularly large increase happened in a year that we had the pandemic is going to delay the process of people sort of second guessing themselves and starting to question whether some of these reforms may have contributed to what we've seen.

Brian Anderson: I wonder if you could elaborate on that a little bit, New York hasn't been alone in terms of seeing rising crime. It's also happening in Los Angeles, Minneapolis, other cities, but the argument does come up that it has nothing to do with any of these criminal justice reforms or policing reforms. It's really just a result of the unnatural conditions of this past 2020 with the pandemic and the subsequent lockdowns to control the COVID-19 outbreak. This created a kind of situation where you would have a higher crime. I wonder what you say to people who are making that argument.

Rafael Mangual: Yeah. When people sort of point to the pandemic as a causal factor of the crime increase, they're making one of two points. One is, the sort of shift and routine activities somehow made it more likely that these crimes would explode. I don't really see how the mechanics of that argument play out. I can understand why the pandemic would lead to a decrease in say, commercial robberies, because after the shutdown, a lot fewer businesses were open. And so you wouldn't have seen as many holdups of places with cash registers, et cetera. But I don't see homicides and shootings, which are the two crime categories that I'm most troubled about being particularly effected by the shift and routine activities brought about by the pandemic.

One of the other arguments that they make, is that the pandemics economic effect has really brought this about that. What we're seeing are really just crimes of desperation that are a function of how much people have lost jobs and how much income they've lost out on. Again, that's another argument that doesn't really seem to hold water in my view. I mean, if you go back, including in New York's history, what you'll see is that there's a very tenuous, if at all discernible relationship between socioeconomic indicators and crimes like shootings and homicides. In 1989, the year before in New York City set its homicide record, which was 2,262 murders in 1990. The poverty rate was actually slightly lower than it was in 2016, which is the year before New York City set its record low for homicides, just 292.

The idea that the pandemic driven unemployment was behind the crime spike, I just don't find to be a particularly strong argument. And as for other cities that saw crime increases, I think you'll find a lot of similarities in terms of the policy levers that have been pulled between New York and places like Los Angeles and Minneapolis, which of course, defunded their police. And other places that have elected progressive prosecutors and have decarcerated or inactive bail reforms like in Chicago. And so, you may not have seen as many reform levers pulled in recent years as you've seen in New York. I think also, there's an argument to be made that it would have taken more to undo the success that New York has seen over the last couple of decades.

During the great crime decline of the 1990s and all through the early aughts, New York was really able to fortify itself against crime increases in the way that a lot of other jurisdictions weren't. So that the city, I think was a lot less vulnerable to crime increases in response to shifts in criminal justice policy than other cities were. So that it took a lot more straws to break this proverbial camel's back than it may have taken in other cities.

Brian Anderson: In the '90s, Americans fed up with crime in the streets, they finally said enough. They elected reformers, including Rudy Giuliani in New York, who drew on new ideas to reduce crime and really ignited an urban revival that lasted two decades, three decades really. Today, as you mentioned earlier, there doesn't seem to be a constituency for tough on crime policies, at least in a place like New York. So that era of the '90s seems far away. Will we have to undergo a longer crime wave before more sober-minded criminal justice policy can return?

Rafael Mangual: I mean, I hope not. I hope not, but I fear that, that's the case. I think one of the things that we're experiencing is just ... When crime was brought under control in the '90s, by the time we got to the late '90s and early 2000s, New York had become a much more attractive city for people to send their kids to college and for people to take their first jobs after university. And so I think we have a lot of people living here today, who've been here for a while, but who weren't here during the bad, old days. You don't really understand what that was like. And then I think you also have some people who were here, who just have forgotten. The lack of temporal proximity to that era has clouded their memory. The city's resilience in the fight against crime over the last two decades has made a lot of people I think overconfident.

I think those are definitely two things that we're seeing, but I think more than anything else, this sort of resistance to arguments that that reforms might be driving some of these increases, was really just a function of a very sincere subscription to the idea that the criminal justice system is not a force for good. And that whatever benefits were brought about at the hands of the criminal justice system in the '90s, just wasn't worth the costs. I think there were a lot of people who sincerely believed that and who were making that argument. And what those people are essentially doing is proposing an experiment. What they're saying is, we should try something that's never been tried before, rather than do what we know has worked before. And it's just not an experiment I think is particularly wise. Again, if it goes bad, it is going to fall disproportionately on the shoulders of the people who are least well positioned to deal with that.

And ironically, it's going to fall on the shoulders of people in whose name, a lot of these criminal justice reforms have been proposed. And that's been one of the sort of most frustrating aspects of this. I mean, if you look at the demographic breakdowns of whose really suffered the brunt of this crime increase. Since 2008, you can go back that far and what you'll see is that 95% or more of shooting victims in New York City had been blacks and Hispanics. Last year, it was more than 96%. And so when you have a big jump in that crime category, what that tells you is, it's going to be a very specific group of New Yorkers who are going to suffer. It's going to be black and Hispanic men, usually young men, which don't make up a particularly large slice of the city's population.

Things on the Upper East Side and the Upper West Side, they'll get worse, but they'll be tolerable, at least compared to what things are going to be like in East Harlem just a little bit North or the South Bronx, or East New York or Brownsville, Crown Heights. Neighborhoods like that, those are the places that really stand to lose the most here and it really just breaks my heart.

Brian Anderson: Well, it's a lot like what has been the situation in Chicago over the years. New York starts looking more like the Windy City, where crime is localized in minority communities, or at least it has been. That's not a particularly attractive model. Again, you've written about for us.

Rafael Mangual: Yeah, that's exactly right. I lived in Chicago for a few years. My wife's originally from that city. And it really is just remarkable because as bad as things are on the city's South and West Sides, you just wouldn't know it, if you live in one of ... If you're lucky enough to live in one of the nice North Side neighborhoods, places like Lincoln Park or Lake View, or the Gold Coast, I mean, these are beautiful parts of the city with very little street crime, very little visible disorder.

One of the things about New York though, that does give me a glimmer of hope that that things will turn around faster than they perhaps would in another city is that, New Yorkers because of our subway system, because of how integrated it is, I think suffer the burden of crime and disorder much more evenly than citizens in a city like Chicago. Where you can pretty much avoid all the crime and disorder by picking the right neighborhood. I mean, even if you live in a really good neighborhood in New York City, you still have to take the subway. And we know that the quality of life on the subways has just been deteriorating significantly. We've seen a rash of really violent attacks, subway pushings, attacks on train cars. A just rise in the homeless population. Basically, using subways as a shelter.

New York has a lot of public spaces that have become more vulnerable to disorder in a way that even well-to-do New Yorkers, who can afford really expensive rents, $3,000 studio apartments, are going to notice the crime uptick. Hopefully, what that portends is a much shorter leash for reformers then might be the case in a place like Chicago, but that remains to be seen.

Brian Anderson: Well, thanks very much Ralf. Don't forget to check out Ralf Mangual's work on the City Journal website. That's www.city-journal.org. We'll link to his author page in the description. And as I mentioned earlier, you can follow him on Twitter @Rafa_Mangual and that's with an A. You can also find City Journal on Twitter @CityJournal and on Instagram @CityJournal_mi. And as always, if you like what you've heard on the podcast, please give us a rating on iTunes. Again Ralf, thanks, very, very much.

Rafael Mangual: Thank you, Brian.

Brian Anderson: Thanks for joining us for the weekly 10 Blocks podcast, featuring urban policy and cultural commentary with City Journal editors, contributors, and special guests.

Photo by Spencer Platt/Getty Images

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