Criminal (In)Justice: What the Push for Decarceration and Depolicing Gets Wrong and Who It Hurts Most
Black expatriate fiction writer and autobiographer Chester Himes (1909-1984) committed armed robbery in Cleveland Heights when he was nineteen years old. He served seven and a half years in confinement, from December 19, 1928 to April 1, 1936, when he was paroled. He had been sentenced to twenty years. He made this observation about his fellow prisoners:
Most of the black convicts in the Ohio State Penitentiary were dull-witted, stupid, uneducated, practically illiterate, slightly above animals. For the most part, black robbers and murderers were the least intelligent. Most black murderers had killed in a senseless rage, and most black robbers had robbed with even greater stupidity than I had.1
Criminals, like the rich, are different from you and me. (For the left, of course, criminals and the rich are synonymous. All fortunes are built on crimes. But that intriguing perspective is not the subject of this review.) Himes was an outlier: a college-educated Black man whose father had been a college professor at various small, underfunded, industrial education-oriented Black colleges; his mother a housewife. His was, certainly by Black standards, a middle-class upbringing. He was not poor. In 1926, while working at a hotel, he was severely injured falling down an elevator shaft. Declared disabled, although he recovered from the accident, he received a monthly pension from the Ohio State Industrial Commission. He had the fourth-highest IQ of his entering class at Ohio State.2 Why did he become a criminal?
Like other bourgeois types, he became fascinated with the Black Tenderloin—the world of confidence men, cheating gamblers, sex workers, petty thieves, dope pushers, and the like, where violence solved all problems, or at least the ones that mattered. Himes’s attraction to this world is an example of what the late Stanley Crouch called the Macheath syndrome, after the captivating villain of John Gay’s The Beggar’s Opera (1728). Criminals and crime itself are charismatic for Himes, at least until he winds up in prison.
What is noteworthy about Himes’s gimlet-eyed view of the men with whom he was imprisoned is how it dovetails with one portion of the argument that Rafael A. Mangual makes in Criminal (In)Justice about it not necessarily being a good idea to let many men out of prison for the sake of their children as many in favor of decarceration advocate. The decarceration view is that incarceration is like chattel slavery in that it inhumanely busts up families. And everybody needs a father in the house, as Black conservatives like Larry Elder are wont to say.
Having lived in a prison for several years should trump, in many respects, having studied prisons for several years. But maybe not. I suppose it matters what someone has actually gained from either experience. In any case, it would be a mistake to accuse Himes or Mangual of being inhumane or simplistic.
Mangual cites a 2002 article that said, “nearly half of just under 19,000 male prisoners surveyed across 12 countries had ASPD (antisocial personality disorder).” (84) The article offered that prisoners may be ten times more likely to have antisocial personality disorder than the general population. Mangual continues: “A 2016 article in Translational Psychiatry noted that while only between 1 and 3 percent of the general public have ASPD, the disorder has a prevalence of ‘40-70 percent in prison population.’” (84)
Alas, criminals are not like you and me, according to Mangual’s arguments and evidence (more than I quoted here) and Himes’s eyewitness testimony. Having lived in a prison for several years should trump, in many respects, having studied prisons for several years. But maybe not. I suppose it matters what someone has actually gained from either experience. In any case, it would be a mistake to accuse Himes or Mangual of being inhumane or simplistic. Himes, for instance, goes on to praise his inmates for “attaining high degrees of heroism” in the Easter Monday fire of 1930 that killed over 330 convicts who burned to death in their cells. “Given freedom of the yard when the fire got out of control, convicts from other blocks braved death, asphyxiation, and injury to climb the steep steps of the burning cell block through dense black smoke, scorching heat, and leaping flames to rescue those convicts locked in the infernos of their cells.”3
These were the same men that Himes described as being willing to kill each other by taking offense over trivialities, over the most minor provocation or offhand remark. Himes said that becoming a criminal made him violent and he continued to be violent for a time in prison until he chose to become a writer. Mangual quotes Ta-Nehisi Coates who argued that one of the downsides of incarceration is “the attitude that helps one survive in prison is almost the opposite of the kind needed to make it outside.” (58) Pathologically driven toughness that sneers at seeking help, a general mistrust of people to avoid being a sucker, and an easily injured sense of honor that requires a violent response, common characteristics among many male prisoners, would seem the stuff of what the academics call toxic masculinity. Why is it a good idea to have a lot of these people running around free? asks Mangual, or why would it be a good idea to expose children to such fathers as these? (58) Mangual writes, “The evidentiary basis for [assuming that it is good for criminal offenders to have everyday contact with their children] is shaky. In fact, considerable evidence suggests that the struggles of children whose parents get incarcerated—whether in school or in other areas of their lives—have less to do with their parents being incarcerated than with the underlying behavioral patterns that led to the incarceration. …Whether a parent’s presence in a child’s life is beneficial seems heavily dependent on whether that parent engages in high levels of antisocial behavior…” (81)
Mangual proffers that inmates suffer from a mental and emotional disorder. He does not suggest that it can be cured or at least can be cured easily. He also does not argue that prison can cure it. Prison can contain it, and this, for Mangual, is a very important function of prison, what he refers to as “incapacitation.” “This, in my view, is the most important of the four broad justifications for incarceration. The others are deterrence, rehabilitation, and retribution.” (40) He eschews any suggestions of medicalizing criminals as sick people, although he sees them as clearly socially and psychologically maladjusted or dysfunctional. What is the cause of this maladjustment? Mangual argues vigorously against the idea that poverty causes crime. (If it were, it certainly would not explain why Himes became a criminal. But there are always exceptions to every rule.)
In this regard, he agrees with the Black free-market, conservative economist Thomas Sowell who has consistently railed against this formulation in several of his books, finding the concept not simply flawed but nearly contemptible and irresponsible. (See, for instance, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, Basic Books, 1995, pages 158-159.) What about all those people, all those Black people, for instance, (for to talk about violent crime is to talk about race), who live in poverty or modest working-class circumstances and are perfectly law-abiding, unremarkable, living normal lives, who do not resort to crime, do not become activists, and do not require the services of a social worker? Popular perception suggests that such Blacks are few and far between which, of course, is not true. And why have we had a general increase in violent crime since World War Two, when the income of and government spending on the socio-economically disadvantaged have risen? so the Black conservatives ask. But, on the other hand, why should anti-social behavior syndrome be more prominent among poor men than middle-class ones? Even if it were true that crime causes poverty, as many conservatives see it, why are some lower-class people more disposed to commit crime than others?
For Mangual, the law-abiding, everyday people are forgotten by those who advocate for decarceration and depolicing. Violent and petty crime is not distributed evenly across a city. Some neighborhoods are hardly touched by crime, others are riddled with it. So, as Mangual sees it, the risks from the policies of decarceration and depolicing are unevenly borne and those in high-crime areas are more likely to pay the cost than those in other neighborhoods. In effect, Mangual argues that law-abiding Black folk, many of whom live in high-crime areas, are being put at the mercy of the worst elements in their community by people outside their communities who claim to be helping them.
A few years ago, my mother’s car was shot up while she was in church as two rival gangs decided to have a shoot-out a few doors away. When I arrived a few days later and drove her to get an estimate for the car repair, she railed at me with considerable vehemence, “Why do people in this neighborhood have to live with this? Why don’t they lock these gangbangers up? The cops didn’t even come until after it was over, and they didn’t do anything.” I drove in silence. What could I say? The police firebombed my mother’s neighborhood in 1985, burning whole blocks of it to the ground, trying to evict members of a radical group called MOVE, that the Black folks in the neighborhood complained about. The city, at the time, had a Black mayor. The neighborhood had been unsafe for a long time and many people who should have known better and done better made it so.
In effect, Mangual argues that law-abiding Black folk, many of whom live in high-crime areas, are being put at the mercy of the worst elements in their community by people outside their communities who claim to be helping them.
You might be thinking, well, in my younger days, if I had been a gangbanger, would my mother have wanted me locked up? The answer is not self-evidently no. If I had been a criminal, she would have been ashamed, feeling that she had reared me to be something better than that. For her, committing crimes was a sign of weakness. In any case, she would certainly have agreed with Mangual about who pays the price for social compassion.
Criminal (In)Justice is the sort of book that one would expect someone who is a senior fellow at the Manhattan Institute, a conservative think tank, to write. It challenges every facet of the argument against incarceration and increased policing:
- Comparisons of incarceration rates between the United States and other western democracies are misleading because we have much higher homicide rates, higher rates of gun ownership, and a higher number of guns in circulation. Countries more comparable in size like Brazil have fewer resources to devote to law enforcement to arrest and prosecute criminals. (44-46)
- Only 40 percent of state felony convictions result in a prison sentence (47) and most people do not serve the entire sentence or even most of it. (Himes is a case in point.) “Even 30 percent of convicted murderers and 64 percent of convicted rapists/sexual assailants were out in less than 10 years.” (60) Ninety-five percent of all prisoners are eventually released. (50) Those who are imprisoned are usually young men with lengthy criminal histories. Mangual also asserts that “just 14.1 percent of state prisoners were incarcerated primarily for a drug offense, and the vast majority of them were in primarily for trafficking…” (48) People who are incarcerated for drug possession constitute less than 4 percent of the state prison (48) population. In other words, even people who commit violent crimes do not as a rule stay in prison nearly as long as commonly thought.
- In further countering the argument of a disproportionately large number of people imprisoned for minor drug offenses, Mangual reminds his readers that 95 percent of state criminal cases are plea-bargained. This means that in exchange for a guilty plea, some serious charges are dropped. In a case of drug possession, one has no idea from looking at the person’s rap sheet what charges may have been dropped. (49) And criminals, unlike academics, do not specialize in just one type of crime.
- Age is no guarantee against repeat offenses as 40 percent of prisoners 65 or older are rearrested at least once. Age may mellow people’s sex drives but not necessarily the urge to commit crimes. (51)
- It is impossible to assess actual recidivism rates because most crimes are never reported to the police, and most crimes that are reported to the police are never solved, so no one is punished for them. (52)
- Just 2.8 percent of the 31.1 million people who had contact with the police in 2018 were subjected to the use of or threat of force. (97) Only 0.3 percent of those had a gun pointed or fired at them. In other words, police violence is far rarer than most people think, and unjustified police killings are even rarer.
- Mangual is in favor of reforming qualified immunity that protects state actors from personal lawsuits for violating federal constitutional or statutory rights that were not yet established at the time the actors engaged in contested conduct. But he argues that qualified immunity has not prevented victims of police violence from garnering huge payoffs from various cities, and there is insufficient evidence that it drives police misconduct. (109-112)
- Sending social workers or therapists on calls to deal with deranged or emotionally disturbed people is impractical as no dispatcher can rightly determine whether a call does or does not require a police presence; enormously expensive as a staff of therapists and social workers would have to be available around the clock to do this work; and most of these workers and therapists would not want to go on calls without a police presence since it would be impossible to determine beforehand what type of violence might erupt at the scene. Finally, there is little evidence that de-escalation training for police would have any effect on reducing the use of force as there is serious debate over the efficacy of the techniques themselves. (116-120)
- Racial disparities are not a proof of racism, and for activists to say that it is is disingenuous and undermines an institution’s ability to function at all or to enact effective reforms. (154-156)
Criminal (In)Justice is an accessible, highly readable book that does an excellent job presenting the counterarguments to the anti-mass incarceration, defund the police crowd. If you want to know arguments and the evidence for them, this book is a concise, painless way to learn. How persuasive is this book? Well, readers are persuaded if they want to be persuaded. And if they are persuaded, it means that they were never really persuaded by what they thought was persuasive in the first place.
Finally, Mangual’s overall argument is that there has been a rush to ill-conceived radical reform of the criminal justice system and policing since the death of Michael Brown and the murder of George Floyd. This has resulted in a dramatic uptick in crime that has hurt mostly Black and brown communities, who are the most vulnerable to the ravages of crime and the least able to protect themselves from it. The concern about increased crime in Black neighborhoods is not just a law-and-order conservative’s fever dream as evidenced here and here and here. Even police reports about declines in crime are misleading as this article reveals. Progressive prosecutors who favor radical reform have gotten pushback in some quarters: the St. Louis Circuit Attorney resigned amid allegations of incompetence; San Francisco’s District Attorney was recalled by unhappy voters; two Florida prosecutors were fired by Florida governor Ron DeSantis. Will this trend continue? Should it, as these people were duly elected and presumably did not misrepresent themselves to voters? But this rush to reform is both sudden and gradual, as Mangual explains, something in the making for many years. Incarceration rates in the United States among all races have been declining since the early days of this century. And there have been many conservatives who have favored this as well as leftists and liberals.
How persuasive is this book? Well, readers are persuaded if they want to be persuaded. And if they are persuaded, it means that they were never really persuaded by what they thought was persuasive in the first place.
Mangual also argues that the federal crackdown on crime in the late 1980s and mid-1990s did result in making many Black and brown neighborhoods safer, violent crime rates actually fell dramatically in those zip codes. (164-165) I concede Mangual’s point that this is an underappreciated major accomplishment in American life. This improved the quality of life for people in those neighborhoods. But many people in those neighborhoods might not have felt that to be entirely true: Did poor Black neighborhoods lose the stigma of being crime-ridden? Did the schools improve? Did Starbucks, Whole Foods, and the local grocery store chains set up businesses in these now “safer” neighborhoods? Did the chance of the police killing someone by mistake get reduced? In so many ways, as I know from seeing my mother’s neighborhood, life did not get noticeably better despite a welcomed reduction in crime. Whenever I walked the streets of my mother’s neighborhood in those days I still felt like a nail and the people who determined what happened in those neighborhoods, why those neighborhoods were the way they were, still felt like a hammer.