What's Next for Criminal Justice Reform

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0:00:07.4 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

0:00:09.4 Aaron Ross Powell: And I am Aaron Powell.

0:00:10.8 Trevor Burrus: Joining us today is John Pfaff, Professor of Law at Fordham University School of Law. He is the author of “Locked In: The True Causes of Mass Incarceration”, which we discussed on a previous episode. Today, we’re discussing an article he wrote in the New Republic called, “Can Criminal Justice Reform Survive a Wave of Violent Crime?” Welcome back to the show, John.

0:00:29.8 John Pfaff: Thanks so much.

0:00:30.6 Trevor Burrus: Now, just to get an idea of what the numbers are like for the pandemic year in crime, was there a COVID crime wave? And how bad was it, if there was one?

0:00:43.4 John Pfaff: There was a COVID homicide wave, not so much a COVID crime wave. So homicides did go up and shootings went up. It’s… Our criminal justice data is a mess. It will be a while before we actually have the numbers. I mean, it’s crazy to think that we have… We don’t even know how many police departments we have, it’s between 17,000 to 19,000. And so, we don’t know how many we have, actually gathering the data from all of them takes time. But the estimates are gonna be that it will… 2020, we’ll probably have seen the single, biggest, absolute one-​year increase in homicides that we’ve ever seen in the country. An increase probably in the order of 3000 or 4000, taking us up to around 19,000 or 20,000 for the year. That’s still well below… In terms of per capita level, still well below the peaks of the early ’90s and our population has grown a lot since then, but it was a sizeable jump and it’s nothing we can just dismiss.

0:01:36.7 John Pfaff: Shootings went up as well, although shooting data is much less reliable. Shooting data churns on the police showing up and saying that, “It looks like there was a shooting there,” people calling shootings in, there’s now evidence that things like ShotSpotter actually get a lot of false positives. And so, the shooting data is much harder to parse, but that probably went up as well. Although one thing people do find interesting is that at least in New York city, where I know where someone looked at it, the death-​to-​shooting ratio dropped substantially. So the increase in homicides was much lower than the increase in shootings should have suggested based on previous year’s data. So either shooters were… People who were shooting were less accurate this year or maybe were reporting more shootings. I think it’s important to understand how… For people to understand how political crime data can be.

0:02:25.5 John Pfaff: The crime data doesn’t just emerge naturally out of some objective vacuum as like data. In the ways that much of our health data tends to. It’s only a crime if the police choose to report it as a crime. They oftentimes intentionally or unintentionally don’t. And so, it’s conceivable… No, in most times, police probably have an incentive to under-​report shootings. There’s actually some studies showing that things like CompStat, which is sort of the big, computerized, tracking program the police department, major departments have now, have really weird incentive effects. They actually encourage police to under-​report serious crimes and over-​report minor crimes, and to knock major crimes down to minor, because major crimes make them look bad, and so you wanna keep those down. Minor crimes make them look like they’re being productive and so, you push them up.

0:03:11.7 John Pfaff: And so, the idea these numbers are just naturally what the crimes are isn’t true. And you might think at a normal time, police would wannna under-​report shootings ’cause shooting makes them look bad, but right now, facing all this intense, political scrutiny they haven’t seen in a generation, they actually have an incentive to oversell shootings. “Look, life is scary. You need us there to protect you.” So we see this increase in shootings in the data, we see an increase in homicides, that’s undeniably true. Everything else is kinda flat or down, which makes sense. It’s hard to rob people during the lockdown. The thefts… Burglaries went up, but mostly of… I think it was mostly two things. One of it was unattended stores. Home invasions probably went down. Stores are closed, stores went up. Also, police when they arrest people during protests can oftentimes get them for burglary, because they’re doing something bad on someone’s property.

0:04:01.8 John Pfaff: And so, when you look in New York City data, there’s this massive two day spike in burglary charges. It’s like, it just blows the data out of the water. And it’s not like, there was a sudden looting spree, it was a protest and they wrapped everyone up on burglary charges. And so, people keep talking about this crime rise. It was a homicide rise and that’s a very serious crime. And I actually don’t think progressives who try to say, “Oh, it was just homicide. It wasn’t a crime spike” are doing reform any favours at all. People’s first thoughts, crime is murder, then everything else. So if murder goes up and everything else goes down, crime went up, that’s the politics of it. So that’s… It’s a long answer, but that’s where we are ’cause it’s a politically, messy number to give.

0:04:43.4 Aaron Ross Powell: But haven’t there been increases in other kinds of crimes? Like, we keep hearing these stories or seeing these videos from say, San Francisco, where people are walking into a CVS and just walking out with armfuls of merchandise they didn’t pay for. Like, it seems like at least shoplifting is going up all over the place.

0:05:01.6 John Pfaff: Reports of shoplifting are going up, at least in San Francisco. But it’s also important to realise that San Francisco is in the middle of an incredibly intense recall effort against Boudin, their progressive DA. And so, the trend was like… I believe the trend was actually increasing even before Boudin came into effect. If you notice here, San Francisco is talking all about these CVS burglaries because homicide’s at a near historic low still in San Francisco. So the entire country sees this massive spike in homicide… Not massive, but a substantial spike in homicide, San Francisco’s went up by about four people compared to the previous year. In the previous year, it was a near historic low. And so, now what we see is, “Oh wait, okay, we can’t go after the progressive DA for murder, because murders didn’t really go up in San Francisco, they actually stayed low at a time when the rest of the country saw things get worse, so let’s turn it to shoplifting,” which seems like a much lesser thing.

0:05:54.2 John Pfaff: And even then, it’s not clear. Most of the time you just look at San Francisco, they’re not comparing it to other cities, not comparing it to trends. These are these isolated, anecdotal stories. A lot of the data on shoplifting, you see the picture, sure, and the thing I really hate about, like the… All those… Like, whatever, like the… I can’t remember what it’s called, but the app on your phone that tells you every time a crime happens now or when someone reports something, is it gives you no context. And so, we don’t know what’s happening in years before, we don’t have a sense of what the trend is, we just get these isolated anecdotes. Also, a lot of the shoplifting data is self-​reported data by the companies themselves. It’s not an objective measure of things. It’s sort of this shrinkage or the overall loss of stuff that we then attribute to shoplifting. It’s usually concordance that sort of are gathered by an industry group that lobbies for tougher punishment anyway.

0:06:44.9 John Pfaff: And so understanding what those numbers are is tough. So yeah, and you see these anecdotal stories, but that’s true everywhere. Even in years when crime goes down across the country, in some cities, some crimes will inevitably go up and it is very telling. We keep hearing all about shoplifting in San Francisco. Not shoplifting in general, just San Fran, San Fran, San Fran. And to me, that’s always a tell that this isn’t really about a broader trend. It’s not, for example, San Francisco is just San Francisco, and the politics of San Fran are wonky these days.

0:07:15.6 Trevor Burrus: There’s always a political football that conservatives like to kick as hard as they possibly can for San Francisco, but that’s true generally.

0:07:23.1 John Pfaff: Yeah. San Francisco’s interesting, ’cause a lot of the people pushing the recall actually view themselves as Democrats and progressives, sort of the more liberal tech people who are actually pushing this. It’s a very interesting politics there. It’s not conservatives going after Boudin, as is often the case against progressive DAs elsewhere. This is actually self-​proclaimed, but perhaps not quite as much as they think they are liberals going after him because their city’s not quite as nice as they want it to be, I guess.

0:07:51.2 Trevor Burrus: Now, of course, in terms of the politics of crime, which goes back and forth, and last year in addition to the pandemic, still ongoing pandemic, we had the murder of George Floyd and the resulting protests and the emergence of the defund the police movement. And now what conservatives are saying, pointing at these numbers and saying, “See, we told you. You defunded the police and now the police are not policing, and therefore murder has gone up.” What’s wrong with that general narrative?

0:08:19.3 John Pfaff: The first problem is we actually haven’t defunded the police. Most police budgets are up, most of the cuts that happened haven’t happened, that most of the cuts that happened are very small. Lots of the cuts that happened haven’t happened yet. So for example, I remember towards the end of 2020, the US attorney who covered Austin had this big speech in Austin, “The Austin City Council just cut the budget for the police and now homicide is way up, and this is like a nightmare.” The problem was, is the fact that, one, the homicide increase in Austin started before the budget cuts happened, so the timing there is backwards. Secondly, the Austin budget cuts were almost all for the… They’re driven by fiscal year, not the voting year, so they voted in August to cut the budget, but the budget cuts don’t actually start until November, ’cause that’s how fiscal years work, and no one paid attention to that. And then the fact is almost all of the immediate budget cuts in Austin were cutting back to cadet classes. So those cadet classes wouldn’t even have entered until 2021, so it has no impact on 2020 and those cadet classes never would’ve seen the streets until six months after that, and so the impact of that first round of the budget cuts can’t hit until a year… It hasn’t actually happened yet. It would materialise around November 2021 is when we would have seen the budget cut actually go into effect.

0:09:32.0 John Pfaff: And so part of this is the fact that timing just never works. The size of the cuts are oftentimes ephemeral. Lots of the cuts are just budget shifting. Say now, we’re gonna fund this programme out of the school budget, not the cop budget. So we cut the cop budget by $10 million, we increase the school budget by $9 million. So they’re paying for the school cops, not the police, and now we’ve defunded the police, but we haven’t actually defunded safety. So like say, New York City’s giant, like 15% cut, a lot of it was that accounting game, and also, I think about a third of what was left of the real cut was all perspective cuts to overtime, at least half of which aren’t gonna materialise this year. And so it’s easy to look at what the city council says, “Here’s what we’re done,” but budgets are mind-​boggling things that you have to spend your career mired in a single city’s budget to really understand it, and the amounts of game playing that’s going on to look defunding when not, makes that whole narrative just problematic.

0:10:33.5 Aaron Ross Powell: Is there a rhetorical effect though, in the sense that… So imagine that my boss announces that he’s been getting pressured to lower all of our salaries, and he hasn’t actually lowered them yet. Maybe they’ve announced they’re gonna be lowered at some point, or there’s just a threat that it might happen. That’s gonna influence my behaviour, whether the cuts have gone into effect or even if they do, so maybe it’s cops responding to essentially an atmosphere where they are being told, “We’re gonna cut your budgets. We don’t like you. All cops are bastards,” and so on. And that wouldn’t show up in the timing data that you’ve just talked about.

0:11:18.4 John Pfaff: Right, that’s fair. I think the pushback I’d have there is, one is, I’d imagine these contracts are written in a way that makes salary cuts really hard to do, or you might cap overtime or that’s vulnerable, but I think base pay is so deeply negotiated that that’s pretty safe. Amongst us, it’s ironic how conservative law enforcement officers increase in the R, given that they’re one of the last truly powerful unions out there. Law enforcement unions are incredibly, incredibly powerful at protecting their turf. You are right that it does perhaps reflect an attitude shift and maybe officers resent that attitude shift. That’s certainly how police departments are trying to spin the large-​scale retirements that we’re seeing. The catch is, and this varies from city to city, in New York City, at least, I believe that your pension payout is based on your last year’s salary, and because of the protests, most senior officers will never see this overtime again.

0:12:16.0 John Pfaff: And so if they retire now, they retire with the biggest possible pension they can ever get. If they wait much longer, the pension’s gonna reset to a lower base level. In LA, I think it’s like your choice is like one of five years of your last years to pick, so it’s not quite as strong for LA. The weeds really matter here, but the unions are trying to tell this as like, “Our officers are all disheartened,” but I think what we keep seeing are retirements, not resignations. And given the nature of public sector pension plans for law enforcement, if all we’re seeing are retirements and not resignations, that suggests they’re cashing out for a reason here. And some of it’s not just, “I feel like I’m being picked on,” it’s, “I can cash out at 80% of a massive amount of money now rather than 80% of less money in five years.” So yes, I think you’re right about the attitude. It’s not just the timing of the budget, it’s the timing of the protests. And there’s surely some part of that, but again, sort of these technical weeds about pay can make a big difference about what’s actually happening here.

0:13:14.4 Trevor Burrus: On a bigger picture level, what do we know… And I assume the answer is… Well, also, that there’s a lot we don’t know, but what do we know about the relationship between policing and crime or let’s just say homicide, because we’d have to get into this question of whether or not, if you increased police budgets by 20% or officers on the street, what causes… What type of policing affects the homicide rate seemingly?

0:13:36.2 John Pfaff: Right, so there’s about seven really fascinating questions, all in that one, so I’m gonna try to unpack them all without losing track of my thread.

0:13:43.0 Trevor Burrus: Yeah, and I think it’s pretty much the entire episode for the rest of the time. You can just do the all thing, one question yeah.

0:13:47.5 John Pfaff: So I think the broadest question, what do police do to crime, there is sort of this progressive talking point of that the police don’t do anything to crime, they just show up after the fact, only 4% of their calls relate to violence, they don’t really do anything, and that’s not right. First of all, like that really popular 4% number, only 4% of all policing calls are for crimes of violence, that comes from a New York Times survey done a couple of years ago that looked at three unstated police department call logs. We don’t know what the three departments were, I think they said they were urban I’m guessing it would have to be because rural is really completely different, but we don’t know how representative these three unstated cities are. We know it’s only three cities, it’s one study. Also that’s calls of service, and we do know that what really prevents crime is the fear of detection, and so the police aren’t wrong when they say when we drive down the street in our car, that’s violence protection. They’re right.

0:14:46.2 John Pfaff: Is it effective violence protection? A completely different question. But when… So this progressive argument, “Well, the cops just don’t do anything,” I think is an incredibly dangerous ones for Progressive to make because it is untethered from the data. The data says very clear that more cops do reduce crime, the question, and here’s where I think the people resist more policing on much firmer ground is how well do they do that. One, studies that’s gotten a lot of traction in the past couple of years it’s probably one of the better studies on this, says that every dollar spent on policing reduces crime, by about $1.60, which sounds really promising, except the crime reductions are our rough estimates of the social cost of crime, and we try to serve it… There’s all these days, they’re tricky to do, they try to put a dollar value on the actual social harm a crime does, and that’s where the $1.60-some number comes from. The dollar spent is literally the cash outlay. So that means like George Floyd’s death doesn’t show up in that dollar.

0:15:51.3 John Pfaff: The stress black parents feel every time their kid leaves the house ’cause they’ve had to talk and they’re afraid their kid might get shot or harassed or basically sexually assaulted during a stop-​and-​frisk, none of that figures into the dollar, and so it’s not a a great cost-​benefit ’cause the costs and benefits are different. To the credit two of those authors and several other people had recently written a paper with the [0:16:10.4] ____ Centre, where they don’t try to put a dollar value on the costs, what they say is, to prevent one homicide, we need to hire about 10 more cops, but those 10 cops will in turn prevent this many more smaller crimes, cause these many more shootings, cause these many more bad interactions and like how they go here’s the mess and they don’t… I truly appreciate that they don’t try to resolve that issue, they simply say, here’s what you’re gonna get, one less homicide, five less these, seven less these, you’re gonna get these 30 bad things over here. It’s a political question, no, is that a valid trade-​off or not. There’s no clear answer and they don’t answer it and they shouldn’t answer it.

0:16:53.7 John Pfaff: And so I think to me, that’s the real issue. Are the costs of policing worth it, because what these studies show no one cop reduces this, it’s not necessarily cops, what they’re saying is one person with eyes on the street who can intervene, prevents this crime from happening. Does it have to be a sworn police officer? I know one problem most of our studies on policing have is we measure cops sworn city, state, county cops, but they’re just literally, it’s a one-​to-​one ratio of public cops to private security, and we know that privacy security who might not be armed but can intervene, they can do a lot too. Patrick Sharkey at Princeton has his book called the “Uneasy Peace”, where he argues that one of the unappreciated drivers of the crime decline in the ’90s, where things like business improvement districts, where store owners got together, basically taxed themselves from help from the city, and hired private security to walk around their neighbourhoods during the day, and that encouraged people to come back and do the shopping and that’s their eyes on the street. So there’s this collective social efficacy idea that neighbourhoods can police themselves.

0:17:55.4 John Pfaff: And so what these studies show is that some sort of enforcer able to intervene works. Does it have to be a cop? Those studies, they show it can be a cop, they don’t show it has to be a cop, is the other trick for these. And so, do cops reduce crime? Yes. Can other people serve cop-​like functions? Yes. Have we studied those? Not nearly as well as we should have, but there’s definitely evidence that they can work. And another criminologist John Roman had this great point actually on Twitter the other day about we don’t necessarily know the efficacy of some of these non-​cop interventions, what we do know is that unlike the cops, when they get things wrong, they don’t kill other people. Cops are the high risk high return thing, like they can stop crime, but they can shoot people. We have less evidence about let’s say violence interrupters do, but when violence interrupters get it wrong, they don’t harm the person they’re interacting with in the way that cops might, which is another complicating factor. And so it’s a messy muddy area with a lot of studies that either overstate their findings, they don’t quite use the same right cost-​benefit or they say cops work when they’re not really… They study cops and they show that cops work, but they’re not necessarily saying that it can only be cops, it could very well be someone else.

0:19:10.0 Aaron Ross Powell: Is there an upper limit too to the more cops prevent crime? So this $1 of police spending with… I mean, all the caveats, you just said it, $1 police spending reduces crime by $1.60. Does that mean that if we spend $3 more on police, so get three times as many police or whatever, we’re going to see crime drop by $4.80? Or is there I guess almost like a Laffer curve of police spending in that at some point, because this is… I mean this is part of the worry is like crimes going up, or we have perceptions of crime going up, so lets just keep pumping more money in, and yes, there are costs to more cops, like more cops on the street creates an environment that’s not great, or there’s more police shootings or whatever, but also is there a diminishing returns?

0:20:00.4 John Pfaff: There surely has to be. There’s nothing… There are very few things that exhibit constant… Or increase in returns of overtime. I had no doubt that if we are to triple the size of NYPD, we’d not cut crime by… To one thirds current level, but I don’t think we have a good sense for what that curve is. I think the $1.60 study is basically saying at current levels, like the margin return on $1 in policing is a $1.60. I think other thing to keep in mind with those things also, is that very few of these studies talk about sort of the opportunity cost. We already spend though… In some cities about a third of the budget already goes to policing, of discretionary budget. And so we already spend a tremendous amount of local resources on policing. At that point, crowding out really matters, so $1 going to the cops isn’t going somewhere else, and we know these other things work.

0:20:47.9 John Pfaff: You know there’s a study that shows that Medicare expansion cut crime by like eight, nine, $12 billion in the states that adopted it just through non-​drug court drug treatment, people got their addiction… We got their… Drug [0:21:00.9] ____ their lives, either the fights related to drugs, violence related to drug stopped or stuff related to drugs stopped and crime goes down sharply even violent crime. I think studies have shown that the $1 spent on in drug treatment cuts crime by $4 or $5. And so yes, policing works, but other things might work better with lower social costs, and we’re also… It’s not just the diminishing returns which is absolutely true, we also, as we spend more… As those returns diminish, the opportunity cost of what that dollar could have done gets greater. You know, there’s a lot of those city budgets are oftentimes vast oftentimes crowding out doesn’t happen, but when one-​third of your budget’s going to policing at that point, crowding out is a real issue to think about. Like, “What are we giving up by not doing something else with this money?”

0:21:46.1 Trevor Burrus: Aside from funding, people like Heather McDonald at the Manhattan Institute and others of her ilk have argued that the criticism of cops, especially around the shootings of often unarmed black men have turned police into sort of… They don’t wanna police anymore, so they’re not getting out there and actually doing the hard work of policing, which maybe is some sort of cracking skulls. I have no idea what that is, but something like that. Is there anything to this idea, ’cause sometimes they point out the data and they say, “After protest for Freddie Gray in Baltimore, we saw our police pull back and sort of refused to do their jobs and some sort of… ” Which says, I mean, if that’s true, then police are even worse than I thought. If they’re just like, “Well, we’re not even gonna do our jobs anymore.” But is there anything to support this idea?

0:22:35.6 John Pfaff: Yeah. I think I’ve always found the conservative argument for the Ferguson effect peculiar. If you insult the people with the gun and the badge, they’ll stop doing their jobs so stop insulting them. So which is a deeply non-​conservative position to take. There is some evidence that there’s a Ferguson-​esque effect. I think the best work on this has been done by this criminologist Richard Rosenfeld out in Missouri. And I think he saw there’s some low-​level pull-​back, but he’s been very… He’s had a very hard time finding any connection between pull-​backs and say, homicide. And so if there is an effect, it’s on the smaller scale. There’s also anecdotes pointing the opposite direction when the NYPD stopped doing it’s job when they’re mad at de Blasio early in his term there’s the two officers got basically assassinated in their car by the person who came up to New York City. He spoke at their funeral, the cops all turned their back to him and basically stopped policing for two weeks and crime didn’t go up at all. And so we’ve seen the Ferguson effect elsewhere that have had no… So Ferguson responses by the police have had no impact. We can… And I’m not sure of the Rosenfeld’s work it’s mostly argument by anecdote, but I think the rigors of out there seem to suggest that if there is an effect it’s on the smaller minor crimes, not so much on the more serious stuff.

0:23:49.2 Aaron Ross Powell: Is there, I guess, a broken windows policing effect though, that we’ve been talking about, homicide and homicide doesn’t go up, but if the cops are letting the people steal from CVS for the other kinds of petty crime, does that eventually lead to more crime overall and more serious crime?

0:24:06.9 John Pfaff: So first I think what’s interesting about broken windows is that we use that term to refer to two completely different styles of policing. One is what the original sort of telling an article envisioned, which is literally like fixing broken windows and taking down graffiti and planting things over, and the evidence there suggested it has a moderately beneficial effect. The other way we use broken windows as a term, to refer to incredibly vigorous, low level, stop, question and frisk kind of things. Stop every person you see, throw them against the wall, search them, grab their testicles and then let them go if you don’t find anything. That has been found to have zero to harmful effects on crime. And so ironically, as much as the concept of broken windows came from the NYPD, they’ve always been the bad sort. They haven’t really been the cleaning sort, and so low level and aggressive, scattered low-​level sort of just scatter shot low level enforcement, grab everyone you can the giant trawling net doesn’t work. The flip side is, there is evidence that hot spot policing works.

0:25:05.8 John Pfaff: If there is crime on this corner and you flood this corner with police, especially police who act in a respectable way, not like the combat cops rolling in, again, throwing people against walls. Throwing people against walls always backfires, but you do respectfully enforce in those intersections where crime is particularly bad, not only does crime go down in those intersections it actually goes down to the adjacent intersections too. So it doesn’t just push the crime away, it genuinely reduces it. And so there are policing tactics at work. We think there’s a district where theft is very high, if you have cops that are deployed there, that could work. And it’s also worth noting though, that CVS and all those places have a policy of not stopping people who walk out their doors with stuff, and so they’re perhaps maybe if we incentivized CVS to have a guy just standing at their front door who just says, “Let me check your bag. Sorry, you gotta put that back.” We could probably cut theft by a substantial amount and maybe they don’t do that ’cause they’re afraid that interaction could turn violent, they don’t wanna deal with the insurances to that, and maybe you need to think about what our tort roles look like in those. There are other creative ways to think about the challenges they’re going to raise and ways to encourage them to do that.

0:26:15.4 John Pfaff: Which is a two-​part way of saying… There can be this knock-​on effects, but oftentimes disentanglement is constantly tricky like, “Why is there all this stuff in this corner anyway? Things are probably already bad at that corner that’s why they’re stealing from this Walgreens.” There is evidence that we have police deployed there that can in fact reduce crime there and in neighbouring areas, but it’s also again, worth asking, “Why do you necessarily always have to jump straight to the police?” There are things that Walgreens can do now to stop that theft. They’re not doing them now. There might be very rational reasons why they’re not doing them now, and maybe we should think about those reasons and how to address those issues before we put the guy with the gun at that corner to deal with a homeless person with drug issues and mental health problems, stealing food ’cause they’re hungry.

0:27:00.1 Trevor Burrus: One of the things that bedevils those of us who work in public policy of all sorts is perception. I’m always dealing with it in terms of say… I talk about the drug war a lot, but people really… And you were one of the best source on this wildly overestimate how much drug war is part of our incarceration problem. Just thinking on it, so if you don’t get the facts correct it’s very hard to convince people that we need to change something, or what is the problem? And one of the big ones in this is perception of the violent crime rate. If you ask during the great crime spike, people accurately perceived that violent crime was going down, but they have not generally done that for the last 20 years. You ask Americans, “Do you think the world is safer than it was 10 years ago?” About 50% say, “No, it’s not. It’s more dangerous now.” So what do you think is happening there and how can we deal with this misperception ’cause it drives a lot of their… The sense of un-​safety drives a lot of these policies?

0:28:00.7 Aaron Ross Powell: It’s that American carnage speech like Trump’s.

0:28:02.6 Trevor Burrus: Exactly, exactly…

0:28:03.9 Aaron Ross Powell: They ask these people who live off in rural America, and they think that literally walking the streets in DC is like being in rural Afghanistan right now.

0:28:14.8 John Pfaff: So actually, there’s really that disconnect to me, there’s a very fascinating story there. So what we see generally over the course of the 2000s to 2010s as crime was low and oftentimes falling, people… The percent of Americans who are telling Gallup every year the crime is worse this year than last year, hovered at around 65 to 75%. It never gets below about 55%, and that’s generally framed as, “Look, Americans have no idea what’s going on.” It’s completely clueless policy. It’s actually much more complicated and more fascinating than that, ’cause Gallup starts that question in the early 1990s. As soon as it gets to 1993, sort of the peak ’93 is about the peak going crime. Crime is just starting to trickle down but no one can see it yet ’cause our data comes out so late. 85 to 95% of Americans say crime is going up. They’re right. Things are terrible. And over the 1990s, we see the substantial drop in crime. And each year, over the 1990s… Sorry, over the 2000s, the percent… No ’90s… Starts dropping in ’91 and ’92. I’m getting old. I’m losing sense of… It’s all distant past for me now.

0:29:19.4 John Pfaff: Over the 1990s as crime goes down each year, the percent of Americans that say crime is getting worse, that goes down to 85%, 70, 75, 70, 65, 60. And then we hit this one magical year. Well, one year it gets to like 49. The next year it drops like 44% of Americans say crime is up, even as it is going down. So almost two-​thirds of Americans get it. Almost two-​thirds are saying, “No, crime isn’t higher.” And they’re right, crime isn’t higher and lost in the data that one magical year, state prison populations actually fell by about 1776. A very patriotic number. It gets lost ’cause the Feds jump by like 10,000. So if you look at the national prisons you see this big increase. Look, at state data states have fallen. So over the course of 2000s, Americans are getting smarter and smarter. They’re getting more and more aware. They see crime is going down and the state prison populations that are driven by much more rational policy than the Feds, as irrational as it is, it’s better than the Feds their growth slows and slows and slows.

0:30:18.5 John Pfaff: We finally hit this point, a solid majority say crime is going down, state prison populations fall. And the very next year, state prison populations jump by about 15,000 people. And a percentage of Americans say crime is going up jumps to about 70%, even though crime went down that year. Do you wanna guess what that pivot year was? 2001 to 2002, right. It has nothing to do with poverty.

0:30:42.4 Trevor Burrus: A year of feeling very unsafe, generally.

0:30:46.5 John Pfaff: You’re just scared. And the world is scary. And what’s fascinating is Gallup has a parallel question they ask. They don’t just ask, “Is crime going up? Is the world scarier?” They also ask, “Do you feel safe walking around your house, about within a mile radius of your house at night?” And that question does not see the same kind of 2001 bump. There’s a little bump, but not much. And so Americans fully understood that their neighbourhoods were safe, but out there, that was scary. And prisons populations don’t drop again until 2010 because the financial crisis distracts us. There’s this fascinating book called “Breaking the Pendulum” that argues that this is exactly how criminal policy operates. We tend to view it as sort of this constant sort of swinging between too lenient and too harsh and too lenient as a pendulum, and it inevitably over cracks and swings back.

0:31:35.7 John Pfaff: And their point is “No, completely wrong.” Progressive reformers and tough on crime types are at war every day and have been for 250 years. It’s been a non-​stop fight, and at some point, it’s not always crime policy, it’s always something else, shifts the political power that they have. Police become scarier and so tough on crime wins, not because crime is worse, but Americans are scared. Or things are getting prosperous and people feel very safe and they don’t understand why we’re spending all this money on all this stuff on crime crap, and the progressives get the upper hand. And so that’s what 2001 was. It was this moment of utter terror that caused the tough on crime types to exploit it.

0:32:12.6 John Pfaff: 2010 was the opposite of that. Crime is low, the economy is crashing and the progressives carve the budget cutting, right on crime types and things shift. That’s my concern with COVID, is that COVID, even if it has nothing to do necessarily with crime, which I think it does have a connection to homicide spike, but even if it didn’t, it’s created this atmosphere of just general fear, and that always puts reformers on the back foot and gives sort of the tough on crime types sort of the political upper hand. But that American ignorance in the 2010s, it doesn’t come from nowhere. It’s not just ignorance, it’s fear, and it’s a fear that is being very politically stoked and managed by people who profit off that fear, politically or financially, and it… I get concerned with sort of people that don’t understand it like, “No, there’s a reason for this.” And it tied into how we responded to the terror attacks and sort of the deeper sort of macro level politics that that drives so much of crime policy.

0:33:07.8 Trevor Burrus: You mentioned police unions. And just your perceptions of leniency, as Aaron pointed out, it’s very common. I know family members in “flyover country” who think that, I live in a very, very dangerous place here in Arlington, Virginia, just because I’m in a city, and so it’s very, very common these days I think, but there’s all these different interest groups in criminal justice reform. What are the… I mean, what to you are the sort of biggest roadblocks? Are police unions, like up their prison guard unions? I mean, what’s really the biggest roadblock, do you think to meaningful criminal justice reform?

0:33:47.7 John Pfaff: Yeah, I mean, all there… I think they’re all significant roadblocks. I think, importantly, they’re all significant in different ways. No prison guard unions. Again, this will vary very much from from state to state based on economics and state layouts and things I’ll talk about in a second but state… Prison guard unions are an incredibly powerful because they have so much at stake. Prisons are incredibly miserable places to work. Not much… I mean, to be a person in obviously, even that they’re so bad that even amongst the correctional officers who get to go home at night levels of suicidal ideation rival that of soldiers who have seen active combat. It is… They are horrific to everybody involved and miserate everyone involved. But in many places, they are the only middle class job around. If you close the prison, you destroy the town. And that creates a huge impetus to fight in New York state as much as places like Texas and other states get all this credit for like these massive decarceration outside of California’s unique response in 2008 to their overcrowding crisis, the single biggest sustained decarceration has been New York state. We started in the early 1999 is when we peaked. We’ve been dropping tourists every year since then. I’m not confident it’s gonna keep going because we’re basically only people who think the violence in our prisons now and those are much harder to change.

0:35:08.5 John Pfaff: But we had all these prisons, they’re basically empty, but fully staffed, because they needed those jobs to keep these communities alive. And the way Cuomo was able to eventually get some to close, he basically offered like, “We’ll offer millions of dollars in state grants to help rebuild your economy in exchange for closing the prison.” Now, I’ve heard that those grants never showed up and they didn’t really work but that was the politics of it. Like we get it, we’re gonna cripple your town and so we’ll help un-​cripple you. We’re seeing this in California. There are some town in California says, “You can’t close our prison. You’ll destroy our town.” And they’re right. It will. This is… We should not use prisons as a way to prop up towns but we should. There’s a fascinating study, this guy John Major Easton did looking at prisons in the south and found that as much we view prisons generally as this white rural welfare program, which is true in place, like New York State. In the south it’s actually minority… It’s a minority propping up programme. Prison towns tend to be more heavily people of colour than similarly sized small towns in the south because those towns have trouble attracting other businesses. So they beg the prisons to come to to prop them up.

0:36:15.5 John Pfaff: And so prison guard unions fight tooth and nail because they see their survival depends on this. And in all but it’s now nine states, we have the whole prison gerrymandering issue also. So when the prison guards show up and say, “Look, we’re gonna lose our jobs.” They say, “Also.” If you close a prison, well let’s talk about the politics of this. Because it’s interesting census question, right? Where does a person in prison live? Do they live in the prison or do they live where they came from? And we give us our drawing legislative maps where you live matters, because people in prison tend to come from the cities, but now they’re moved out to bluer democratic cities now moved out to rural redder areas. Where do they live? And outside of Vermont, and Maine, they can’t vote. So where they live counts quite a lot, and in all but nine states now, nine, 10 states, there’s been a slight movement here. They live in the prison. Can’t vote, counts as a person. It’s a full five fifths compromise.

0:37:12.9 John Pfaff: And so when the correctional officers say, “Look, we’re gonna lose our jobs. And you my state rep, like, that’s bad, but also, hey, you republican state rep who has no prison. You know, what if we lose our prison then Republican Party shrinks, and you’re going to lose your chairmanship to the Democrats from the city. We don’t want that to happen.” So now you’ve got buying even from the conservatives who don’t have prisons, because their overall caucus size turns on in many states, not every state, turns on on this. Interesting someone tried to do a study in Pennsylvania and found that the [0:37:42.9] ____ impacts are actually much more muted because of where Pennsylvania puts their their prisons. And so, that’s the prison guard union. You got the police officers who sort of have powerful emotional support. I mean, we are no law… The first Law and Order started in 1991 at the peak of the crime boom. So we’re now good, what 21, 30 into sort of the [0:38:05.1] ____ of popular culture and supporting those that that’s the transition. You know, who were the early TV lawyers? Matlock. Who was the other one? The other big one dull Southern…

0:38:17.3 Trevor Burrus: Perry Mason.

0:38:18.8 John Pfaff: Perry Mason, right. They were defenders. There’s actually a mind numbingly dull black and white show from the ’50s it’s un-​watchable but to show is simply titled Public Defender. It’s the stories of the public defender offices in like the seven cities that had public defenders back then. But then the crime boom comes and that narrative switches. Rather than skepticism towards the cops is this full hearted cultural embrace of policing. That gives cops a much different perspective, like we are that thin blue line, and you’ve been told for 30 years on the most popular shows on TV, that we are all that stands between you and chaos, and we’re all well intentioned, doing a great job then we push the rules a little bit but it’s always understandable ’cause the guy is always guilty. And so that’s the policing union and then the other much more invisible…

0:39:00.0 Aaron Ross Powell: Well, real quick before we get to that, just on this the prison guard unions and the voting census issue. This seems as people pushing for criminal justice reform, a large portion of our argument, or if not our immediate argument our motivations in this is like is humanitarian, that the criminal justice system is incredibly brutal and unjust and treats people poorly and does human damage and all of this, but arguments that I think we should not let people out of cages because if having them in cages puts money in my pocket or props up my town, or I think we should keep people in cages because it gets more votes for my party, are unfathomably ghoulish. And so how do you, like it’s basically is, it’s an indicator that the humanitarian argument just gets trumped by the most base drives, and so how do you even… As a criminal justice reformer, how do you even enter into those debates, because it’s like the proper response is when it comes to whether human beings should be put in cages or not, your paycheck or how many votes your side can get simply shouldn’t be considerations.

0:40:30.9 John Pfaff: So I’d point out that Virginia just adopted a commission to draw their new districts in light of the 2020 maps, 2020 Census, and their commission is saying right now that they’re going to count people in prison as living as where they came from. And the state GOP is suing them on the grounds, that’s unfair to the GOP to, because these prisons take resources to run, and so we are entitled that these people count, and obviously, you could fund those resources out the electoral power. But it goes beyond in sort of accepting the gerrymandering that in Virginia, they’re actively suing to preserve it on the grounds that they are entitled that these people count as people. And you’re right, at the base of all of this is a profoundly deep dehumanisation of everyone who comes in contact with the system.

0:41:16.8 John Pfaff: They’re never viewed as fully as people. You hear public defenders talk about in New York City all the time, how the guard, the jail guards, and all the people in the courthouse refer to the defence as bodies, “Body coming through, bring in the next body.” It’s not a person, it’s literally just a body, which allows you to start do horrible things to that person ’cause they’re just, it’s the body that you’re getting, another body churning through. I don’t have a great idea how to solve that. My general argument is, as much as we can to make things as hyper-​local as possible. To me, it’s not surprising, in fact it’s to be expected, that our most progressive DAs had been elected mostly in counties that don’t have suburbs. So Larry Krasner, Philadelphia doesn’t have a suburb. So to be clear, since your listeners might not know this, DAs are these weird people who are elected by the county, even though they tend to do most of their work in their cities. And most cities have…

0:42:07.4 John Pfaff: Are part of a bigger county, often it’s where a majority of the population lives and that majority of the population that has no real exposure to criminal justice has an outsized voice in choosing the DA. San Francisco, just a city, Chesa Boudin. Philadelphia, no suburb. Larry Krasner. Boston. Yeah, Suffolk, but it’s like 80-20 Boston, you get Rachel Rollins. Seattle is that way. I’m sorry, Portland is that way. St. Louis City is one thing, St. Louis County is something different, they now both have progressive DAs. Baltimore, just the city, the county is different and much, much different, and I think that is because… To me, it was really fascinating in Philadelphia during Krasner’s race. So what you see, the Philly police choose a challenger, basically a homicide prosecutor to run an ex-​homicide DA to run against Krasner, Krasner is sort of “We’re the tough on crime. Shootings are really bad in Philadelphia.”

0:42:58.6 John Pfaff: And what’s amazing, it’s not just that Krasner crushed the guy, which there’s no polling in these local races, everyone couldn’t breathe until nine o’clock at night that Tuesday, but he actually did the best in the district with the most amount of shootings. So you’d think the place where tough on crime should read the most, where do you think Krasner’s failed the most, is where shootings are the greatest, and they turned out the most for Krasner, because those communities feel the cost and the benefits the most. To them, both the shooter and the person who got shot, both… Neither is a body. You know Joe and you know Bob, and it’s a terrible thing that Joe shot Bob. But you know Joe, you’ve known Joe since he was four years old. You understand the story behind Joe. And we’d love to know who we know both Joe and Bob choose their leaders, they tend to do a better job than people whom Joe and Bob or just scary black men over there, and we’re still off in our little White suburb over here. “Let’s just lock them up forever. That’s fine to me, I don’t care about their families.”

0:43:56.2 John Pfaff: Victims, but not really. And so to me the immediate solution is to put as much decision-​making power as we can, in the hands of people who do see them the most as people. And to be fair, if Philadelphia were to vote for a much more tough on crime prosecutor, I would actually be more okay with that than if Houston did, because if the people of Philadelphia say, “This is what we want,” well, they’re still the ones closest to the problem. Maybe we should listen to that. It’s not the white suburbs voting for the tough guy, it’s still the predominantly black neighbourhoods of Philadelphia saying this is what we want. I might not be thrilled with that from a broader point of view, but there’s a lot more merit to that argument then when the suburbs vote in the tough guy to impose martial law on people who keep saying, “We’re the victims and we don’t want this.” Yeah, it’s a huge problem, and my basic solution is to try to give the white suburbanites as little voice as possible, to not try to make black people feel human to them. That’s a multi-​generational issue. Until we get around that, which we’re for 500 years into not doing that very well, we should try to limit their direct involvement as much as we can and try to localise as much as is possible.

0:45:09.5 Trevor Burrus: So it seems like we’re at an inflexion point for criminal justice. Interesting that all this happened, George Floyd and the COVID crime spike or homicide spike, and there’s a lot of discussions going on. Do you, first of all like, how do you feel about the defund the police idea in general? If we communicate it, I’ve said to reporters and stuff that the rhetoric is bad and it plays into conservatives’ hands for people trying to do criminal justice reform, but there are some ideas there that are not too bad. Correct?

0:45:46.5 John Pfaff: I think the ideas are incredibly solid, the rhetoric is actually complicated. So lots of people have heard about defund the police. I wonder how many people here have heard about the Justice Reinvestment Initiative. Hyper-​technical thing, I bet most people that listen to this have never heard the JRI. JRI has been around about 20 years, it’s a joint Fed City State programme. And the whole idea about JRI is, look, what if the city comes up with an idea that causes fewer people to go to prison? That saves the state money. But why does the city care? Because the city policing investment comes out of the city budget, and prisons are paid for by the state budget, these are two different budgets. And the city people don’t care about the state budget. And so what if when the city comes up with a really good idea, and they reduce costs for the state, we have a system in place to transfer money from the state to the city to reward them for their saving, “We’ll split the difference and you get some and we get some, and everybody wins.” And now, we incentivise investment and efforts to move away from blunt criminal justice as opposed to things that work.

0:46:44.9 John Pfaff: It’s been fine. It’s done some good. No one’s heard of it. We’re still screaming at each other about defund. It went from nothing to something people can’t stop talking about. And yes, the politics here are incredibly hard to wrap your mind around. I’m actually quite sympathetic to what Spanberger and Lamb said shortly after the 2020 election, they were like, “Your defund rhetoric nearly cost us the House.” Probably not wrong, but the problem with that is that we’ve reached this weird period now where local elections have become nationalized. When I think about every special election from 2017 to 2021, it was always a referendum on Trump. This guy, this delegate in Virginia, Democrat in Virginia wins a delegate seat that’s been held for 30 years by a Republican, ’cause everyone hates Trump. That sucks. When you vote for your Virginia delegate, it should be for how Virginia should run things, it shouldn’t be a national referendum on Trump, and now they’re all referendums on Biden. And so that means that when an activist in Chicago, folks in Chicago politics, says defund in a way that works in Chicago, it gets weaponized in rural Virginia, they go after Spanberger. That’s completely true.

0:47:50.2 Aaron Ross Powell: And when the activist says, “I don’t care about that. I need to get the CPD out of my neighbourhood now. So they don’t shoot me now. And if Abigail Spanberger loses her seat, I really don’t care, ’cause that’s over there.” But you might need the ACA. And if you lose Spanberger you lose the House, you lose the ACA, and then the feds, who controls… If you’re an activist in Chicago who’s very liberal, if not… Views the Democrats as a sort of corrupt party, as no different from Republicans, they’re not to you, there are things Democrats are doing that you want them to do, and the way we’ve nationalised local races is tricky. But at the same time, we’re still talking about defund. It’s been over a year and it’s still being debated and talked about, and I think if we’d chosen some very Brookings-​appropriate justice reinvestment… Not just term, but even just framework. Let’s scale back some things and shift some money over here. Sure that sounds great, and then it dies. But defund is an Overton window moving phrase. Overton windows are incredibly hard to move. The Democrats held the Senate for years under Obama sometimes, because you had all these Tea Party people who are screwing Republican races.

0:48:57.4 John Pfaff: But now, the Republican Party is where those Tea Party people wanted to be, you lost the Senate for years, because they had no crazy people running against Harry Reid in Nevada when he was vulnerable, and they chose a crazy person. And so, yeah, there are real costs to this defund rhetoric. It plays directly into the Republicans’ hands, but we’ve had a year-​long discussion that a more politically savvy, centrist term would have just gone off and died in some white paper somewhere. And so I totally get the political cost, it’s risky, but when you’re shooting high, it’s kept the debate going. You gotta open with something bigger and scale back. You can’t open with where you wanna be, because then you get pushed further. And so I simultaneously completely understand all the criticism levelled at the word, but I’m also much more sympathetic to it because there’s a bigger push that I think it’s accomplished that something more centrist would not have.

0:49:50.9 Aaron Ross Powell: This whole conversation, not ours today, but the broader conversation about criminal justice reform that has taken on so much weight in American discourse is all happening at this, admittedly, very weird time in America because we’re still in the thick of the pandemic. Hopefully, we’re at the tail end of it. We are at times of extraordinarily high unemployment, which is contributing to… I’m sure it has a contribution to rising crime rates, or the partial rising crime rates. We’ve had school closings, which also are putting a whole lot of young men out on the streets who otherwise would have been in school. So there’s a lot of very acute causes that are also temporary. And then we have the summer of the criminal justice protests and so on. And so what do you think the, given that we are in a criminal justice reform moment, it feels like, the longer-​term impacts of it happening during this weird time, that is going to come to an end and are you optimistic about criminal justice reform this time around? Are you pessimistic? Are there some areas where you’re one of each? What does the future criminal justice reform look like coming out of two years of COVID?

0:51:16.6 John Pfaff: Yeah. Each minute you ask that question, my answer changes. I have no stable point on this whatsoever. Early 2021, I’d become deeply pessimistic. This looked like just every time we could reduce prison populations, just folks in the prison part, it was COVID, these intense congregate settings, where the disease spread like wildfire, and not just amongst the people in the prison, it would then jump to the correctional officers if they weren’t the ones bringing it in the first place. And so now, you’re pulling disease into rural communities that are more conservative, so we should all be on board and prison populations didn’t budge. And to me, the canary was just choking to death in the mine there. But now, it looks like prisons are down 20%. As things have gone on, we’ve quietly emptied things out quite a lot over 2021. Okay, so it wasn’t some big movement, but it happened. Beyond that, we’ve never been… We’ve never had a prison population this large, we’ve never had a crime level to be this low, we’ve never seen a homicide spike this large with other crimes staying low, we’ve never seen a pandemic of this magnitude that just won’t freaking end. I’m really excited.

0:52:20.8 John Pfaff: My kids go back to school in two weeks, this is the perfect time for Delta to explode around the country. So I honestly don’t know, I just think… I’m gonna say on the record, I just don’t know. ‘Cause what’s gonna happen is in 15 years, we’ll know what happened here. And when we write the histories of what’s happening now in 15 years, we’re gonna show all the various inevitable reasons why it either took off under COVID or it was killed off by COVID, or what came after. But I think literally, we don’t know. And the histories are gonna come out in 15 years, are gonna oversell the inevitability of how we got here, and different acts by different governors, a slight shift here, a Delta outbreak that didn’t happen this way, all these things could’ve produced a much different outcome and didn’t. And I think we’ll confidently say, “Well, this is why it happened.”

0:53:11.0 John Pfaff: And I don’t… I think if we had some sort of DC Universe, Multiverse where we could run this experiment across 1000 different Earths. At this exact moment, where things are right now, we’d see about 400 different outcomes across those 1000 Earths and each one will look inevitable in hindsight. But right now, I think it’s all just… There’s so much going on in such an unpredictable, unprecedented kinda way that I don’t know. I’m very comfortable saying I don’t know, and I’m gonna try my best in 15 years to say we didn’t know. It looks like we know, but we really didn’t. And these things that look inevitable in hindsight weren’t. And that’s kind of the point I started this book, “Breaking the Pendulum” too, is that we tell these stories of inevitability, but they weren’t. Everyone’s fighting, and sometimes just as a fluke reason like, this one magazine goes bankrupt, this one doesn’t, we publish an article and it goes viral, for reasons no one expected it to. And that changes the discourse and a lot of it can be just noise that in hindsight looks determinant. So that’s where I am, quite comfortably, but terrifyingly uncertain.

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0:54:21.6 Aaron Ross Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple Podcasts or in your favourite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about Libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.