In recent months, a wave of champions of the “tough on crime” approach to criminal justice have been trumpeting a spike in U.S. homicides in 2020 as fodder for rolling back critical reforms to America’s broken criminal legal system, and for scaremongering about the so-called defund the police movement. Meanwhile, criminal justice experts caution that efforts to blame the uptick in homicides on criminal justice reform aren’t just unfounded but are in fact directly contradicted by the very crime data the tough-on-crimers are trying to spin. As Fordham Law professor John Pfaff has put it: the rise in homicides last year actually “by and large took place on the status quo’s watch.”

So, for a look at what we know and what we don’t know about the 2020 crime data—and the shifting politics around criminal justice reform—Rebecca sat down with Ames Grawert, senior counsel at the Brennan Center and Josh Hoe, the policy analyst at Safe and Just Michigan and the host of the Decarceration Nation podcast. 

For more:

[bright theme music]

REBECCA VALLAS (HOST): Welcome to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by The Century Foundation. I’m Rebecca Vallas.

In recent months, a wave of champions of the “tough on crime” approach to criminal justice have been trumpeting a spike in U.S. homicides in 2020 as fodder for rolling back critical reforms to America’s broken criminal legal system and for scaremongering about the so-called defund the police movement. Meanwhile, criminal justice experts caution that efforts to blame the uptick in homicides on criminal justice reform aren’t just unfounded but are in fact directly contradicted by the very crime data that the tough-on-crimers are trying to spin. As Fordham law professor John Pfaff has put it: the rise in homicides last year actually “by and large took place on the status quo’s watch.”

So, for a look at what we know and what we don’t know about the 2020 crime data and the shifting politics around criminal justice reform, I sat down with Ames Grawert, senior counsel at the Brennan Center, and Josh Hoe, the policy analyst at Safe and Just Michigan and the host of the Decarceration Nation podcast. Let’s take a listen. [upbeat music break]

Josh, Ames, thank you so much for taking the time to come back on the show. Each of you has been spending a lot of time really digging into these data and what we should be taking away from them.

So, Ames, I’m gonna start by kicking things over to you to help us understand the data and to put them in context a little bit. So, you’re someone who spends a lot of your time, a lot of your day job, with criminal justice data, criminal justice statistics. Tell us, what are we seeing about the 2020 crime data that has everyone so concerned. And help us understand a little bit about what those data tell us and how we should understand them in context.

AMES GRAWERT: Absolutely. And I think the word you used, “context,” is the right one. The context here is so incredibly important. So, I wanna back us up to 1990. Blossom is on the air, I think. Some other things are happening. And it’s starting then, the United States started to see a major decline in crime. I wanna try to paint you a picture. If you’re looking at the graph, imagine you’re looking at the downward slope of a fairly big mountain with the murder rate, the violent crime rate all dropping pretty precipitously down to the rocky foothills of that mountain between 1990 and 1998. And then a sort of slower downward slope as you descend the foothills from 1998 through 2014 or so, just a huge, precipitous drop when you factor in the entire descent, if you will, in homicide rates, in violent crime rates, in property crime rates all around the country. Sociologists call this the great crime decline. And just for additional context for what we’re going to talk about today, it’s important to know that we don’t really have a great understanding of why that happened.

There’s been innumerable attempts to try to parse what caused the great crime decline. There’s even a Brennan Center report by almost that very name. And my colleagues, when they wrote that report, were able to make some very strong arguments about the data. For example, we know that increased incarceration did not cause the great crime decline. But as to what affirmatively did cause it, that’s a much more sticky problem. So, it’s important to understand that crime is a very complex social phenomenon. So, even against this backdrop of something we are all living in the wake of 20 years down the line, we don’t totally understand what happened, not for lack of effort.

So, major decline in crime, violent crime, through about 2014 or so. And there was a small, or there was an increase in crime in 2015 and 2016, which started to recede in 2017 or so. So, if you’re back at the geographic map I’ve given you, that’s sort of a hill. There was some concern at the time that that was the beginning of the next big crime wave. That never materialized thankfully, though that was something that then-President Trump and then-Attorney General Sessions talked at length about. We were at the forefront of people saying that this was not the beginning of a next crime wave. This was serious, but not the new normal. And then you fast forward to 2020. So, there are some signs that we were already in for a year when murder would’ve been rising, for example, between 2019 and 2020. Then factor in all of the extraordinary things that happened in 2020, and we ended the year with a roughly 30 percent increase in homicides.

But what’s really strange and really important to understand is that 30 percent increase in homicides, while very, very, very serious—and I’m not going to do anything to minimize that on the show or anywhere—was not paired with increases in other offenses. So, assault went up, but property crime dropped significantly. So did robbery. So, there’s sort of a divergence of experiences that manifested in different cities in different ways. But generally, what we saw last year is a real increase in violence. So, homicides went up, assaults went up. Property crime sort of went different ways. There’s also—and I will get in the data when you’d like me to, but I wanna wrap this up as quickly as I can—there’s also city-by-city evidence that shootings were up last year. The FBI doesn’t track and report a sort of shooting count they do with crime, but that’s something important to keep in mind as well.

VALLAS: And I do wanna dig just a little bit more into this before we start to get into why this matters and some of why we’re even having this conversation today, why we thought it was important to dig into this on the show. One of the things that is also somewhat strange, to use your word, it’s certainly unusual, is that the increase that we saw in homicides, which you’ve just been describing, was not something that we saw just in a couple of places, sort of driving up an overall rate. It was actually a fairly uniform trend, something that we saw across jurisdictions. Talk a little bit about why that matters and how different that is from what we’ve seen in other years where we see one particular place, such as Chicago, for example, driving an overall larger trend.

GRAWERT: Mmhmm. Yeah, that’s hugely consequential, actually. So, when my colleagues and I studied the 2015 homicide increase, if you were looking at big cities, a lot of that increase occurred, or a lot of that increase you could see, came from cities like Washington, D.C., Baltimore, and Chicago. Chicago and Baltimore were the big ones. But if you look at what happened in 2020, there’s no such sort of localization. In 2015, I believe homicide rates and crime rates in New York City were relatively stable; New York was immune to whatever happened in 2015 and 2016, largely. No such luck for most cities in 2020. This was a fairly broadly felt increase, which has huge consequences for how we think about it and how we analyze it. Because instead of saying, “What happened in x y z,” we have to think about broad national issues. We have to think about what happened to the country as a whole, what happened in American cities as a whole. That lends itself to a different type of analysis.

It also, and this is really critical—and I know it’s something we’re gonna talk at length about—it makes it really hard to blame individual actions and individual policy levers. So, as I said, I know we’ll talk about this at length. But it was briefly in vogue to blame New York State’s bail reform law for the crime increase in New York state. And that argument runs headlong into the reality that the other 49 states didn’t pass bail reform, but by and large, the other 49 states saw significant increases in crime, or saw these increases in crime in homicides. So, you need to look for a fairly, you need to look for a broader explanation. And what’s really important, you need to look for a multifactor explanation. You’re not going to be able to say like, “Ah, what happened in 2020 was X, and that’s the full story.” It’s gonna be a lot more complicated.

VALLAS: And that’s exactly what we’re going to get into for a lot of the conversation on this week’s show. And Josh, I’m gonna bring you in next to help us start to make that segue.

Supporters of the tough on crime approach, right, opponents to criminal justice reform, have, as Ames just referenced and as I referenced up top, been trying to pin the uptick in violent crime and in particular, the uptick in homicides that we saw in 2020, and which folks are very much still trying to get their arms around, on defund the police, as well as bail reform and other types of reforms that we’ve seen a push for, and I should say a bipartisan push for, in recent years. Does this claim hold any water? This is something that each of you has really spent a lot of time digging into given the frequency and widespread nature of those types of claims from opponents of reform. And Josh, we’re gonna spend a lot of time getting into this, but I’d love if you’d kick us off. I know you have a lot of thoughts about that question.

JOSH HOE: [chuckles] Yeah, I do. You know, first of all, I mean, it’s a little bit of an overstatement, but nobody defunded the police.

GRAWERT: [laughs] Yes.

HOE: I’ve never seen anything like what’s been going on. It would be like if everyone believed that the phrase “crying wolf” meant that the wolves were actually attacking the chicken coop and just started randomly attacking wolves. Nobody defunded the police. It didn’t happen. It’s a slogan. It was something that people hoped for. And there are a few places, New York City being one of them, where there was a slight decrease in police funding. We spend in this country about $80 billion a year on police and policing, and the idea that somehow as a result of the George Floyd protests, that’s gone to zero, which is what a lot of them seem, or that any second now it’s gonna go to zero, seems to be what most people have been pushing. And that’s wildly inappropriate and pretty radically untrue.

I mean, it is true, as Ames said, homicides are up and have been up for the last two years. But that’s why we need new answers and why new answers should be a priority. This has basically happened on the watch of the status quo. Despite all the talk of defunding, if more of the same is the solution, why is there a problem? We’ve seen the same increase in homicides across cities with Democratic and Republican mayors, with reform prosecutors and tough-on-crime prosecutors, with bigger police budgets, with unchanged police budgets, with slightly lowered police budgets, and having implemented criminal justice reform and never even thinking about implementing criminal justice reform. And as Ames said, that means we need a much more sophisticated analysis, a lot of this stuff. And it clearly is not because we’ve defunded the police. That’s just scare tactics, is the best way I can put it.

VALLAS: And Ames, I know you have a lot of thoughts on this as well and have spent a lot of time thinking about this and starting to look into what might actually be some of the multifactor explanations that you referenced before. Another thread of these types of claims is that somehow this is the result of progressive prosecution. And we’ve seen a wave of progressive prosecutors, so-called reform prosecutors, elected in bluer cities across the country in recent years. But that also appears not to hold water and to actually be contradicted by the uniform nature of the uptick in homicides, as you pointed out before.

GRAWERT: Yeah, that’s exactly right. I just wanna say I wholeheartedly agree with everything Joshua said. This was a failure that happened on the watch of the status quo, exactly as he said. I know I’m quoting you verbatim there. [chuckles] But it’s not as if we’re living in a world that’s somehow post-mass incarceration. We’re still living in a world that’s defined by mass incarceration and everything that that entails, including its failures. So, we’re not at a place where we can say, “Well, this is the creation of the criminal justice reform movement,” because the criminal justice reform movement, despite some major successes, is not the prevailing force in the land, unfortunately. And where we’re seeing victories for criminal justice reform, there’s no correlation between that and crime increases.

On the progressive prosecutors point, that’s exactly…. So, it goes to what I was saying earlier. If you were looking for an explanation for the increase in crime and violence in 2020, you would want to look for something that’s more generalized. There doesn’t appear to be any correlation between individual cities who have certain types of prosecutors and crime. And one of the more frustrating claims I saw was that—and I think this was advanced by then-President Donald Trump—that cities with Democratic mayors were the cities where violence was increasing. That’s a big case of omitted variable bias because cities tend to produce Democratic mayors, and cities tend to have higher densities of people, and cities therefore tend to have higher crime in some areas of the country. So, that’s an analytical problem off the bat, but it’s also empirically not true. Because you look at cities that had Republican mayors, and crime also rose in those cities. I think Jacksonville was a popular counterexample. I’ve seen people cite it as well as Miami. This attempt to hunt for localized explanations to fit a too-convenient political narrative just doesn’t hold up.

Oh, I forgot to mention something really interesting to you at the top. When we talk about the increase in homicides, the increase in violence, we’re drawing on data that the FBI publishes in something they call the Uniform Crime Reports, which are aggregated from police reports. So, police report a certain number of offenses to the FBI, and the FBI cleans the data and publishes it. And they roll in some estimations, which is a whole other thing we can talk about, too. But there’s a second measure of crime that the government uses called the National Criminal Victimization Survey, which rather than collecting data from police about what police observed, they strive to ask a nationally representative group of people what they actually experienced and whether they chose to report it to police.

So, according to the NCBS, violence actually dropped in 2020, which posed a really difficult conceptual problem for all of us. [chuckles] Because there’s no avoiding the reality, the homicide increase, because there are multiple independent ways to confirm that just because of the tragic nature of the crime of murder. But when it gets to violence, it’s sort of an example of how little we really know about…how little we really know about how things are working in this country, which is unfortunate. But it’s worth factoring in.

VALLAS: And that’s a hugely important point and one that further underscores how fragile our understanding of these data is, even our understanding of historic data, as you were noting before.

But I wanna return quickly to the progressive prosecutors point because it feels important to reference that two of the eight jurisdictions that actually saw declines in homicides last year—Baltimore City, Maryland and St. Louis County, Missouri—are home to two of the nation’s most high-profile reform prosecutors, or progressive prosecutors, as they’re sometimes called, Marilyn Mosby and Wesley Bell. So, the data just don’t back up the story that the tough-on-crimers are trying to tell here. And the story is similar when it comes to tough-on-crimers’ efforts to blame defund the police.

One poster child example comes from Austin, Texas, where we saw Greg Sofer, then the U.S. Attorney for the Western District of Texas, in a big December 2020 press conference trying to pin the city’s homicide spike on Austin’s recent decision to reduce police funding. Except if you look at the data, the budget he was talking about didn’t even take effect until October 2020, like almost minutes before he was standing on that dais. So, almost none of the cuts he was fearmongering about would even have actually occurred until 2021, after the spike in homicides that he was referencing. So, again and again and again, if you dig beneath the surface, the data just don’t back up tough-on-crimers’ claims. So, if it’s fair to say that it wasn’t criminal justice reform, and it certainly wasn’t defund the police driving the spike, you’ve each been spending a lot of time trying to understand these data. Josh, I wanna go back to you first with this. What do you think some of the drivers might actually be? And it feels hard not to start with, of course, the COVID pandemic.

HOE: Yeah. I mean, I think it’s not entirely surprising, given the confluence of events that happened in 2020, that there was an increase in homicides. I know that, you know, I mean, if you think about it, you’ve got a massive pandemic, you’ve got massive lockdowns all over the country where people are increasingly desperate, separated from work, separated from, you know, locked in with their families, which a lot of times can increase tension. And then you’ve got a corresponding problem with when there are different camps on what was actually happening. There are some people who believe that there was a decrease in trust in police. And so, that made it more likely for people to take the law into their own hands. And then you have some people who believe that the police stopped being as interested in being police, kind of the Ferguson Effect crowd. And so, but for whatever reason, it seems like something might’ve been happening there.

And then you’ve got, you know, just there’s just a lot of desperation, a lot of poverty, a lot of social needs that are in, you know, another theory is that a lot of social, you know, that people’s ability to get their goods and services and be able to get to the store and pay for things with things like Bridge Cards and things like that was to some extent disrupted. You just had a lot of things going on at the same time and still have a lot of things going on at the same time, especially now that people are having to pay rent again. There’s just a lot of economic, political, and social dislocation that’s been happening over the last two years.

Some other theories that’ve come about are like there was a massive increase in gun purchases right after this happened. There’s also been an increase in the—and people get, I think, get this part a little bit confused—but there’s also been a lot of transfer of illegal guns since this all started happening. And a lot of people have concerns for their safety and safety at home. And so, sometimes people get what would be considered illegal guns for actual security and safety reasons.

But there’s just all kinds of things happening. And I think, as Ames said earlier, I think it’s way too early for us to know exactly what the causes are. But we have kind of an idea that there was just, you know, it’s very rare that you have this kind of social dislocation throughout an entire country at a particular time. And I think we’ll probably find that that had a lot to do with it.

VALLAS: And Ames, you’ve been doing a lot of thinking about this as well. I know you probably have a lot to add, too.

GRAWERT: Yeah, extraordinarily well said by Joshua as always. I wanna add one more counterexample to your list of cities that don’t fit the anti-reform narrative: Newark. So, I live in an immediate suburb of Newark, in commuting distance to New York City, so Newark is near and dear to my heart. The city has had no shortage of real social problems for the past several decades. It’s a place that’s desperately in need of greater investment at all levels of government. Despite that, Newark is a city where the homicide count was relatively stable. Maybe it increased slightly. I don’t recall exactly, but I think it might’ve been exactly equal to what it was in 2019 and 2020. And at the same time, Newark is a place that has just been through some major police reform and has a very successful community anti-violence network, at least in some parts of the city. So, if you were trying to pin police reform as a cause of the homicide increase, you have to deal with Newark as a real counterexample. So, I hope the city continues to have some success with those programs.

So, yeah. Everything that Joshua touched on, I think those are really important factors to consider. The guns factor is a really interesting one. I’ve talked to some colleagues and some experts in the field who point to not just gun purchases, because tragically—and this is a country that’s fairly awash in firearms—but gun carrying. There’s some evidence out of the Chicago Crime Lab that Jeff Asher, who’s an analyst of crime statistics, has written about that shows that police were turning up more guns in searches in Chicago than they normally do in the first couple of months of, I think it was in the first couple months post-lockdown. Some people will say, “Well, that just means that police, because they were making fewer stops, were being more judicious with their stops.” If so, that explanation has its own policy implications.

But if you talk to people who work on community anti-violence programs in Chicago, which we have done, they will tell you that they do believe gun carrying was up. So, the issue might not just be gun purchases, gun transfers, but also gun carrying. Guns are a real violence accelerant, so if people felt unsafe, were carrying guns more regularly, it would be tragic but very possible that you would see violent incidents escalate to lethal incidents. And that’s an unfortunate reality that I think could’ve been playing out in many cities.

The economic factor, I think, is really, really important and really tough to understand. The research on crime and poverty is really tough. There’s some great work by Patrick Sharkey that says that we shouldn’t look at individual poverty. It’s not like you turn on a lever that says this person becomes more economically insecure, and then the immediate output is more violence from that person. People don’t work like that; it’s not that simple. What his research suggests, instead, is that poverty at the neighborhood level might have some relationship with crime.

That’s really important because we actually do see, at least in some preliminary research that I’ve done, that where homicides increased, they tended to increase more in neighborhoods that already had existing disadvantages in 2020. That suggests a real need for investment in historically, in communities that have historically not received the types of investments they should, maybe. It suggests a very different policy response than what some others are saying. So, that’s one thing.

And also, to dip back into Patrick Sharkey’s work, there’s been some really compelling research about the effectiveness of community anti-violence networks like of the Cure Violence model. READI Chicago is another good example. These are nonprofits that work really directly with people impacted by violence and are incredibly enmeshed and experts in what happens in their neighborhoods. They rely on word-of-mouth intelligence to understand what’s happening. They rely on in-person interactions and deep engagement with people who are at risk of becoming enmeshed in or victimized by violence.

All of that becomes impossible when you’re in lockdown because the tragic reality is that when people are in lockdown, you can’t interact with them face to face. And many of the constituencies that these organizations would want to work with might not have stable housing, to say nothing of stable internet. Some of the people you might need to work with might not be able to hop on a Zoom call. So, that work is incredibly hard. So, if those programs have an effect, and we believe they do, they are suddenly unable to deliver the services they’ve been delivering for years. And what happens when those services recede? That could be one part of this perfect storm of conditions that we saw take effect in the United States in 2020.

VALLAS: And we’re definitely gonna get back into talking about those types of programs because they are very much at the heart of a lot of the conversation around alternatives to the status quo. But sticking with this current debate and some of how the crime trends in 2020 are getting talked about publicly, I wanna turn next the politics around this. And this is a lot of why it matters so epically much to get this right and to have the more nuanced conversation. The uptick in homicides in 2020 is actively being used to undermine, and in some cases even roll back, criminal justice reforms. And both of you have referenced a little bit of that, but this is a trend that a lot of us expect actually to get worse before it gets better, particularly with multiple rounds of elections coming up this year and then bigger midterms next year.

As is so often the case, we are starting to see, unfortunately, the data from last year being used by tough on crime supporters as something of an election fearmongering tactic, not a new phenomenon by any stretch, but something that we are definitely seeing start to play out and which is likely only to increase heading into next year’s midterms as well.

Talk a little bit about, and Josh, I’m gonna turn to you for this first, how we’re seeing the political landscape on criminal justice reform shift in this moment after many years, roughly close to a decade, of something that many of us have considered to be maybe not bipartisan kumbaya, but certainly bipartisan agreement in really important ways around reform. And it feels really important to note in asking that question that, of course, it’s not just the increased crime numbers and the murder numbers in particular from last year that we’re seeing at work here. But obviously, we’re also asking that question—I’m also asking that question—in the context of the COVID pandemic and the economic turmoil and everything else that’s been going on for the past year and a half and change. It has been an eventful stretch, to say the least, and one that clearly is having an effect on the politics. So, Josh, to you first with what I recognize is something of a big question.

HOE: Yeah. So, let me use Michigan as kind of a example here, ‘cause that’s where I live. It’s a little easier for me to talk about that. But it’s very likely that the opponent for our governor, Gretchen Whitmer, is going to be the former police chief of Detroit. And it’s already very clear that the people who are behind him and the people who are with him, that’s the drumbeat that they’re, this tough-on-crime drumbeat, is the drumbeat that they’re starting to beat. And so, almost immediately, you saw Gretchen Whitmer start putting real resources into police as a response because she’s trying to protect herself, her left flank from what’s likely to be the large attacks that are going to be coming in the next election cycle. We saw the leadership of the House and the Senate in Michigan basically change from, in essence, being criminal justice-friendly to being much more difficult on criminal justice over the space of a couple of months, a lot because we believe, or at least I suspect, because the Trump administration didn’t see the kind of benefits that they thought they were gonna see from supporting the First Step Act when they did that.

And so, I think all across the country, a combination of factors is starting to turn what had been bipartisan consensus into much more of people protecting their flank and trying to make sure that they’re not weak on crime. And especially when there’s just a massive amount of people dying, the only answer people have had for 50 years, no one’s really talked about alternatives, except in academic press. All people know is they’ve seen movie after movie and television show after television show and media outlets after media outlet where every single panel on crime includes a former FBI agent, a former prosecutor, and probably someone else, a former police officer. And so, we’ve had 50 years of what I’ve called before “copaganda.” And so, people don’t understand that continually doubling down on the same solution might not be the best answer. And so, we’ve just got like the same confluence of events that we were talking about a second ago combined with these political headwinds. I think it’s put us in a pretty tough place in the work that Ames and I do right now.

VALLAS: And Ames, you are also living in one of the ground zeroes of rollbacks of reform, unfortunately. Then-New York Governor Cuomo, New York being a strongly Democratic state, actually was one of the leaders last year who used the pandemic as cover to force some incredibly disappointing rollbacks of recently enacted bail reforms. These being reforms that the law enforcement lobby in New York was not a fan of at all and had been pressuring him to roll back. Ames, talk a little bit about what’s been going on in New York.

GRAWERT: Yes, that’s absolutely right. I wanna give one note for hope, but maybe I’ll end on the note for hope, actually. So, stay tuned. New York City actually is a pretty good case study of how anti-reform claims are made and how they fall. [laughs] So, when we were in the first couple months of the pandemic and it was clear that homicides were increasing, NYPD started claiming that the reason for the crime increase was twofold: number one, bail reform, number two, releases from Rikers to decrease capacity to allow for more social distancing in Rikers. Which what Rikers did substantially decarcerated during the pandemic, not as much as maybe they should have, and they certainly haven’t continued that progress. But a lot of people were released during the pandemic, which is small progress. So, the police made the, or police and anti-reform advocates, made those claims up and down the media, which were reported regularly.

But when the New York Post, not a notably pro-reform outlet, actually got ahold of the police’s data, they published a story showing that the police’s own data debunked their claims. That the people, when they were able to sort through the data with some granularity, the people who were being arrested for shootings and murders had almost no overlap with people who’d been released from Rikers and almost no overlap with people who received different treatment because of bail reform. So, it’s just, it’s a perfect case study of where you’ll see claims made by people who oppose criminal justice reform, and then when the rubber meets the road and you say, “Well, can you prove it,” the answer turns out to be, “No, I can’t.” This was actually, this was a year ago, so you might say, well, this is an old anecdote. It’s actually gotten a little bit of a reprise because NYPD Commissioner Dermot Shea recently got some tough questions in Albany on this and had to backtrack on claims that bail reform was causing the crime increase. So, it’s good to see people pushing back on these claims.

I think it’s also very, very frustrating because at the same time as you…. It’s very hard to get data that you need to make an argument about what’s causing any individual crime increase. The law enforcement agencies have the data, and it’s not always accessible. It’s not always easy to get from them. It’s not always easy to analyze. So, it’s frustrating when you see claims like this, can’t evaluate them on your own, and then someone does manage to get the data, and they can prove that it was wrong all along. So, it’s a really good case study, an object lesson, of how anti-reform claims go on this.

The one note of hope I’ll give you is that New York did roll back bail reform ultimately, in part, not in full. There’s still some progress made on bail reform. But New York State also passed a major parole reform bill in spring of this year, and the new governor, Kathy Hochul, signed it just maybe a month or so ago. So, there’s been some real progress on criminal justice reform in New York state, something that’s near and dear to my heart. A clean slate act, which would be a record expungement law, only didn’t pass in New York because of a last-minute technical snag. There’s every indication that it should pass in the coming session. So, even though we’re seeing pushback that doesn’t really pass muster on criminal justice reform, that doesn’t mean that hope is lost or that things aren’t happening.

I’ll just say one more thing that I’ve noticed at the federal level, too. I think we might talk about this later as well, but there’s a package of sentencing reform bills that are being advanced by a bipartisan group of senators that would extend the First Step Act, among other things, which would be great. But at a recent markup hearing, you did hear some senators say, “Well, can we do this given that crime is increasing?” And it’s frustrating to hear those arguments because it creates the, it rests on the assumption that criminal justice policy is the only lever we have for addressing crime. And that’s just not true, especially when it comes to the federal system, which is significant in the overall constellation of the United States criminal justice system, but by no means the only player in town. There’s a tendency to think, basically, among people who are skeptical of reform, that the only tool we have for addressing crime is criminal justice policy. So, more lenience equals more crime. And that’s just not the case. That’s not what we see in the evidence over and over again. And so, breaking that sort of relationship in the minds of policymakers and helping them see that there’s a better way forward, I think, is really important work and what I’m thinking about going forward.

VALLAS: One city that I also follow very closely because of spending a lot of time there is Philadelphia. Philadelphia is also home to another high-profile so-called reform prosecutor, Larry Krasner, who a lot of folks were very worried was going to face a difficult reelection campaign this year. But he ultimately—and this is just adding a little bit more of the cause for optimism, Ames, to yours because we definitely need at least some of that in this conversation and have some cause for it where we look for it—despite those concerns, Krasner actually ended up coasting to something of a fairly easy victory in the May primary this year. And that’s a particularly notable race to watch, given that his opponent, Carlos Vega, structured his entire campaign pretty much as one that was about Krasner’s reform record, and in particular, actually structured his campaign as one that alleged to speak for the victims of the criminal justice policies that Vega was critiquing Krasner for. And yet the voters of Philadelphia overwhelmingly rejected that idea of let’s return to the status quo that Vega, the tough on crime status quo, I should say—that Vega was championing and instead say, no, we actually do want to see reform, and we want to give Krasner another shot. So, another local-level glimmer of potential optimism here, indicating that there is continued demand for reform among voters when they are asked to answer that question at the ballot box.

So, moving to what the research tells us, and you guys have started to get into this in little ways, but I really do want to dig in on this just a little bit before we move on. At the heart of status quo defenders’, tough on crime defenders’, case for more of the same on policing and punitive policies as opposed to reform, is the premise that more cops, more money for policing, more money for law enforcement keeps us safer, right? That’s really what’s at the heart of that push. And I’m gonna ask, and Ames, I’m gonna stay with you just for a moment on this, because boy, are you a wonderfully encyclopedic nerd that I say that in the best sense of the term when it comes to criminal justice research. Does the research back up this claim? Do more cops and more money for law enforcement mean safer communities and less crime? And I ask that question by adding sort of a second nuance to it that I know ends up being really important: How does more money for cops stack up against the kinds of alternative solutions that reformers have been calling for shifting resources to? And you referenced actually one example of those types of alternative solutions before.

GRAWERT: First of all, thank you. It’s a pleasure to be an encyclopedic nerd on this topic or indeed any topic, so I greatly appreciate the compliment. Yeah, this is a really important question. And if you’ve been following, I hate to conflate Twitter and the real world, but if you’ve been following some of the discussion about crime in 2020, solutions to crime in 2020 on Twitter, one of the big debates you see recur is, what role do police have? I credit the research that shows that policing works in that, especially when you look at some specific tactics, there’s research showing that so-called hotspot policing—which is not the same as inequitable and discriminatory stop-and-frisk practices, by the way—but that hotspot policing does have some effect on crime. But that’s not the entire question. The question that I think we should be asking is, what are some other policy tools that maybe we haven’t been exploring as much that might have fewer downstream consequences and negative externalities and negative effects on communities? And that’s a different question and I think one that we should be spending a lot more time thinking about.

So, I mentioned earlier Patrick Sharkey’s research that shows that community anti-violence programs have a real, show some real success on reducing crime in their communities. The types of programs I’m thinking of are like violence interruption, and those programs work by enlisting people who have lived experience in their communities who are trusted by their communities, who come from their communities, and have experienced violence themselves, maybe have experienced the criminal legal system as well, people who can credibly message to their communities that violence is not the way to solve social problems. So, these so-called violence interrupters are highly trained people who deserve to be treated like professionals and paid and trained as such, by the way, and do not always receive those benefits, unfortunately. But these are people who know their communities intimately, know where and when violence might break out, and really put their lives on the line to go to people who may be at risk of committing or being victimized by gun violence and saying, “This is not the path you should choose. You should choose something else.”

Those programs, when they’re implemented well, seem to be very successful. The problem is when they’re implemented well, you need to have the right people. You need to have the right sort of organizational structure. And there’s no one out-of-the-box solution for it. So, if a program works in Bushwick, New York, it does not follow that it would work in Bensonhurst, New York or Red Hook, New York or New Haven. It doesn’t necessarily, there’s no program that you can copy and paste from one jurisdiction and put into another.

Another program that I’ve looked at that has a lot of really, appears to have some really interesting success stories is READI Chicago. And what that does is they pair cognitive behavioral therapy, which some scholars, I think Thomas Epp is a big proponent of this, as a way to deal with some of the trauma that underlies violence. So, READI pairs cognitive behavioral therapy for people at risk of violence with job placement and job training. That, again, is a program that was constructed iteratively in Chicago to match the needs of Chicago and specific Chicago neighborhoods by someone, Eddie Bocanegra, who grew up in Chicago, who has lived experience of the criminal legal system in Chicago, and violence in Chicago. And he knows what he’s doing.

So, the question is, how do you build a program like that in another city? And that’s a really difficult question. I think it’s really worth exploring these alternative ways of helping communities build safety themselves, which may or may not include policing. And it’s a really, it’s a cutting-edge field, and it’s one where we’re beginning to see additional investment. But it’s going to take a lot more investment and work to see these programs proliferate and have the effect that I think they can.

VALLAS: And Josh, you have not only been spending a lot of time thinking about this question and the broader set of questions that we’re asking in this week’s show, but also talking with other advocates, talking with other experts in the field about what the road ahead might look like for criminal justice reform, including policing reform with the goal being trying to figure out how to approach this moment and the growing number of obstacles that it presents. Because I think what I’m hearing loud and clear from both of you, as well as from folks across the field, is not that we no longer need criminal justice reform, right? In some ways, we almost need it now more than ever. But that this is becoming an increasingly tough road to walk compared to maybe where we’ve been before this moment for a number of different reasons.

So, what do you see the road ahead looking like for criminal justice reform? And what advice are you starting to glean from the set of data, but also of kind of real-life experiences we’ve been talking through here, for reformers on how best to handle this moment and to approach the many obstacles to reform that we’re now seeing?

HOE: Well, I think the first thing you have to understand is that all of the things that we push for are ways to increase community safety. Economic supports are a way to increase community safety. Trying to stop people or helping people with drug addiction is a way to increase community safety. These are things that reduce the problems that people have that might cause them to become unsafe in the future. In a sense, this is, you know, Ames talked about some specific programs that deal directly with violence per se. But all of the programs, there’s possibly an opportunity cost problem here. My friend John Pfaff suggests this as an opportunity cost problem. Yes, there are studies that suggest that $1 spent on policing can deliver $1.60 in crime reduction. But there are also studies suggesting that $1 in drug treatment results in a $4 reduction in crime. So, what we’re seeing here is we’re not asking the question of how should we invest, best invest, our dollars to get the best return on that investment? There are opportunity costs to that dollar spent on policing that aren’t being discussed or even considered because our minds are so stuck in this idea that the only answer we have to crime is more police.

And I do wanna talk a little bit about those studies. My thing is that—’cause there are a lot of studies that people will, it’s the same set of studies that get mentioned over and over again—and my thing is that given the low clearance rates for homicides (and that’s the part that nobody ever talks about) I have a really hard time believing that those reductions in crime will be the kind that meaningfully deter homicides, which is the issue that we’re actually talking about here. And deterrence is the important thing since solving homicides happens after the fact.

In addition, kind of the strongest research, as Ames mentioned, is kind of based on hotspot policing, which suggests only that police can deter a particular crime in a particular spot at that particular time. So, I’m not very convinced that this is very durable deterrence. Like, if I was really convinced that I wanted to go out and shoot a rival, I may not go out when the police are there, but that doesn’t mean I’m not gonna go out two weeks later and shoot the same person or whatever. You have to deal with kind of the underlying reasons that violence is happening, and the police are not particularly good at doing that.

I guess kind of the last thing I’ll say here is that most police money goes into physical presence, addressing misdemeanors, creating surveillance and surveillance algorithm and technology. So, even if you believe in kind of the larger narrative, there’s a real and durable impact on liberty. There’s a cost when we increase the amount of money we put into police that becomes durable. There aren’t many places, for instance, in Detroit where you can walk around and aren’t constantly under surveillance.

So, I guess from my perspective, as much as everyone wants to run from this notion that there are systemic problems and there are things that we have to deal with that are structural and deal with poverty and things like that, that is exactly what we need to do. And to continue to double down on the same solution that hasn’t worked forever, as I said earlier, if we spend $80 billion a year on policing and policing is the solution, why is there a problem? As far as I’m concerned, what we have to do is come to some kind— I understand that there is value to policing at some level, but that doesn’t mean that everything, that we have to only look at policing as the solution to this problem. And I think there’s good reasons to believe that if we continue to look at policing as the only solution, we’re going to see, especially in an era with incredible economic dislocation, we’re going to see less and less community safety. And that’s only gonna be exacerbated when police start to crack down, etc.

GRAWERT: I just wanna—

VALLAS: Another—

GRAWERT: Oh, sorry, Rebecca. Go ahead. 

VALLAS: Well, I was just gonna say another great example of something that I don’t think most people would consider to be a criminal justice policy, but which has huge implications when it comes to what we end up seeing in the crime data that we’re talking about, there’s actually now a growing body of evidence that Medicaid expansion led to a significant and measurable decline in both violent crimes and property crimes. And that was in the very first year that states that began to participate in Medicaid expansion actually took up that policy. One theory of why that may be the case is because it dramatically expanded access to drug treatment outside of just drug courts for people who were in need and were unable to access it because of a lack of health insurance. So, just one other example of what, Ames, I think you before called a myriad set of factors that we need to be looking to. Ames, you were about to add another point as well.

GRAWERT: Yeah. First of all, I love that point. I think that’s so important, and I wanna circle back to it to expand on it briefly. But I wanted to just +1 something that Joshua said: clearance rates. So, [chuckles] there’s a saying, “it’s like getting away with murder,” which is supposed to mean it’s impossible. However, the reality in cities, especially like Chicago, is that most murders go unsolved. The clearance rate, which is the rate at which police solve crimes over the number of crimes, the clearance rate for homicides rests in the 20s some years in Chicago. Which is shocking. And that has to have some effect on police trust if you see that police are not able to solve your brother’s killing but are able to handle other offenses that you may not believe are as serious in your community. That has to have some effect on community trust, and it has to have some effect on the persistence of violence in some communities. I think it’s a really understudied issue and something that’s really important to consider. So, clearance rates: 100 percent.

And I think that Medicaid expansion point that you raised, Rebecca, is so important. It feels like sometimes when we’re talking about criminal justice policy, there’s this sort of crisis of short-termism. Like, when we implement bail reform and crime rises the next year, well, it has to be because of bail reform. But there’s almost, there’s no way that a policy implemented that quickly can have an effect in a single month, almost, in some cases. But we don’t think about long-term causes of crime. We know, there’s solid research that shows, that child poverty costs the country on the order of a trillion dollars in long term-expenses, and some of those costs are in the cost of crime related to poverty years and years and years down the line. Despite knowing that, we’re still debating whether we want to expand the Child Tax Credit for a single year! It’s very frustrating that there’s growing evidence that economic supports and investing in our communities can have real public safety dividends. It can make us safer, healthier, stronger as a society. But we don’t see other solutions to crime. We don’t see those as priorities when they really should be. It just, it’s worth remembering that criminal justice policy is not the only lever, is not the only policy lever we have for controlling crime.

VALLAS: Well, and Ames, I’m gonna stay with you for a moment. And we’re running short on time, and I know there’s a lot else that we’d love to get into. But since you’re talking about the connections across different policy spaces, it feels like a good place to get in a little shoutout for some of how criminal justice policy is economic policy and vice versa as well, a point that I know you often like to make, and actually, that you and I have talked about a good deal on this show because of some of your prior research. Talk a little bit about how you see criminal justice policy and in particular, second chance policy, fitting into the larger conversation around Build Back Better and what it takes for us to rebuild following the COVID pandemic.

I ask that question with the subtext, of course, being that—and this is why I bring up second chance policies, especially in the context of this discussion, people who are impacted by the criminal legal system—we know we’re already facing a permanent recession. Well before COVID was a household name in the U.S. or anywhere else, we saw a double-digit unemployment rates among people with criminal records when we were at so-called full employment pre-pandemic. This is a big part of what you at the Brennan Center have been lifting up in the context of what it will take for impacted communities to be able to participate in the recovery rather than being left behind. And we’ve actually seen, and you started to get into this before, some pretty amazing progress, not just in the states, but also now at the federal level when it comes to enacting, or at least introducing and starting to talk about, second chance policies that could really change that tune.

GRAWERT: Yes, Thank you so much for bringing that up. Yeah, you’re alluding to a paper that I know we discussed previously in your show by myself, my colleague Dr. Terry-Ann Craigie, who’s professor at Smith College of Economics, and my former colleague Cameron Kimball, who’s since left us to go to grad school. And we miss him. [chuckles] But what the paper shows is that conviction and imprisonment have huge long-term consequences for economic mobility. So, we show that time in prison reduces annual earnings by around 50 percent in lifetime earnings by up to half a million dollars per person. And even relatively lower-level convictions like misdemeanors reduce annual earnings by more than 10 percent, which when you’re talking about a population which, as you said, Rebecca, tend to be people who are already struggling with socioeconomic disadvantage, 10 percent might, you know, there are people in this country who can lose 10 percent of their income, and maybe they’ll be fine. What we know about people who are impacted by the justice system, they may not be those people. Ten percent may be the difference between poverty and stability or poverty and not poverty for many families. So, there’s a real growing sense in which the research shows that mass incarceration feeds poverty, and poverty feeds mass incarceration and on and on.

There’s actually a really interesting paper that just came out. Let me see if I can find it. I had it on my desk, and I wanna get the authors right because I think this is a really interesting finding. Yes, there’s a new paper by Ryan Larson, Sarah Shannon, Aaron Sojourner and Chris Uggen, apologies if I’m mispronouncing Chris’s name. He’s a real luminary in the field. But this is just a who’s who of people who study the impact of mass incarceration on the United States. And what it shows is that as criminal records, as the number of adults with a criminal record, grow in a state, the—shoot, what is the exact metric they study—I think it’s employment decreases. So, it supplements our research, which shows that criminal records have individual impacts by showing that criminal records have collective impacts as well at the state level.

So, what that means is that we need to have a real respect for second chances in this country, which I don’t believe we have currently. One policy solution we think about a lot and I think that has a real chance of gaining some traction in New York state where we’re working and other jurisdictions and at the federal level is clean slate. And the idea is very simple. Criminal records hinder economic mobility. We know that very well. So, let’s help people get rid of criminal records. These policies will, just after a certain period of time, automatically wipe a criminal record from someone’s profile. So, when they apply for a job, they are legally permitted to deny the existence of that criminal record, which is critical.

These policies have been adopted in states as diverse as Utah, Pennsylvania, New Jersey, etc. So, they can be real points of bipartisan success. There’s a very impressive clean slate bill that’s moving in the New York State Legislature that, like I said earlier, I really hope to see enacted. There was the federal clean slate policy that I think was being co-sponsored by Senator Casey and Senator Ernst in the previous session. It may be reintroduced soon. And there’s also—

VALLAS: It was reintroduced earlier this year, actually, in April.

GRAWERT: Oh my gosh! I’m so sorry. Very good. Yes. And as well a bill that would help states fund their own clean slate processes, which can be a big sticking point because automating court records systems to find and get rid of criminal records is not as easy as just writing some code and putting it on a website. It’s a really intricate patchwork system. So, I think that’s a really important policy. But we need to have other ways to help people realize real second chances.

Some important policies I’ve seen people start thinking about are so-called second look mechanisms, which allow people who have been in prison for a very long time, 10 to 20 years, depending on the statute, to apply to a judge to say, “Hey, I’ve been in prison long enough. Can you reevaluate whether I need to stay here for another 20 years?” And the judges will, in many cases, say, “No, you don’t need to stay there for another 20 years. We’ll release you now. Further incarceration would serve no point.” And that allows people to start getting their lives back in order and have a real second chance after conviction.

I talk about policies like this at great length, but I’m mindful of our time. But clean slate, second look, economic supports like Medicaid for people who may need it as they return from incarceration are so important to helping break the link between poverty and mass incarceration. But really, we’re just scratching the surface. This is a deep problem.

And just before I end this point, I just wanna note it doesn’t have to be this way. I think we have a sense in the United States that the pervasive permanent criminal record is, to paraphrase the great Bruce Hornsby that, “That’s just the way it is. Some things will never change.” But that’s not the way it is in most other Western democracies. Some work by Professor James Jacobs, the late NYU law professor, shows that countries like Spain and the United Kingdom recognize the importance of rehabilitation and a right to rehabilitation. We don’t have to live in a world where a criminal record means civil death. We should not live in a world like that. We should live in a world typified by redemption and second chances. That’s something that I strongly believe in and underlines a lot of our work at the Brennan Center.

VALLAS: And Ames, you may or may not have known that there are significant bonus points awarded for any yacht rock references on this show.

GRAWERT: [laughs]

VALLAS: So, A+ on the Bruce Hornsby throw in there.

GRAWERT: My pleasure.

VALLAS: Artfully done. We’re gonna run out of time, and so you are absolutely right that there is so much more that could be said about the topic of not only why criminal justice policy is economic policy and vice versa, but second chances in particular. So, I’m gonna refer our listeners back to the conversation I had with you and one of your colleagues, Terry-Ann Craigie, at the end of last year about these issues, about clean slate, about a whole range of second chance policies. And we’ll have a lot more in show notes as well for folks who are curious to take a look.

Josh, you’re gonna get the last word on a topic that we would be remiss if we did not mention it in the context of sort of hot topics in criminal justice policy right now. And that pertains to a memo that came out of the Trump administration just before the transition to the Biden administration in January from the Office of Legal Counsel, better known as the OLC in nerd circles, that has a lot of folks very, very worried that if Biden doesn’t take some kind of action, that Trump memo is going to end up sending a whole bunch of folks back to prison. What do folks need to know about that before we run out of time?

HOE: Yeah, this is really unfortunate. So, several thousand people were released from federal prison because of COVID under something called the CARES Act during the Trump administration. And then there was a legal opinion that said that they would, which you just referred to, that said that they would have to be sent back once the emergency’s lifted, regardless of how they’ve re— You know, these are people who were pre-screened and they thought that would be pretty good reentry candidates. And so, all of these folks came back. They’ve all done very well. There’s been very few technical violations, very few people sent back to prison. They’ve all been doing very well. They all have gotten employment, they’ve got a place to live, all that kind of stuff. Things are going really well.

And unfortunately, we thought that when the Biden administration came in that it would be a slam dunk to just let these folks stay, you know, fix it. Even if there is this legal interpretation, there are a lot of people who disagree with that legal interpretation. There’s also other mechanisms he could use, like commutation and pardons, to make sure that all these folks who are already home, already readjusted, not re-offending, get to stay home. Unfortunately, the Biden administration has stood by the OLC interpretation, or at least the DOJ has, and they have not done anything really substantial to give relief to these people. And just imagine the cruelty to the families of these folks who have these folks home and are uncertain every day if they’re gonna be sent back to prison, not because they’ve done anything else, but just because of a legal interpretation of a memo of the CARES Act. And just how tough it is and how stressful it is on each one of these people to be going through their day every day trying to make a new life, but knowing at any second, that entire new life that they built could be torn away from them. And this should be a slam dunk. Like I said, there are plenty of ways to get around this. There are other interpretations of that law that say that that’s not the way it comes down. There’s also commutation, which they could clearly commute all these folks and just let them stay home. And they have done none of these things.

The only thing they’ve done is said that for nonviolent people with drug offenses—not for any other crime—so, if you’re a white-collar offender or anything else, you have no chance, you can apply for commutation. And that’s all that they’ve done. And at any minute, all these people could be sent back. We’ve even had some people who were called back on technical violations that were pretty ridiculous, who’ve already suffered pretty substantial consequences. And it’s just, to my mind, it’s just cruelty. And I had a lot of high hopes for the Biden administration. I know some people who are on the criminal justice reform side of the work in the Biden administration, and it’s very disappointing. I’m not gonna lie to you.

I’ve held several 24-hour events online to try to rally folks to try to write the president about this. And we’ve even had to actually, and the FAMM Foundation, a lot of other people have been doing this. ACLU has put national commercials on television about it. I just don’t understand what the problem is. This is like, you know, they always talk about the low hanging fruit. This is the lowest hanging fruit. These are people who are home and succeeding, and you’re going to rip their lives apart again for no damn reason, pardon my French. And you know, it’s just, it’s sad. I hope, I really pray that they do something soon.

VALLAS: And that’s why we couldn’t close out this conversation without putting that into the mix. Lots more on that OLC memo and how folks can get involved with that fight in our show notes. But we are out of time, unfortunately, and while there is so much more that we could get into, I need to let you both go.

Josh Hoe is the policy analyst at Safe and Just Michigan. He’s also the host of the Decarceration Nation podcast, which I highly recommend everyone go check out and subscribe to if you care about criminal justice reform. And Ames Grawert is senior counsel at the Brennan Center and an encyclopedic nerd when it comes to criminal justice research, a new title I gave him earlier, so we’re gonna go out with it too. Huge thanks to you both for taking the time to come back on the show and for all of your work on these issues, and I look forward to having you both back soon.

[upbeat theme music returns]

GRAWERT: Thank you so much.

HOE: Thanks, Rebecca.

VALLAS: And that does it for this week’s show. Off-Kilter is powered by The Century Foundation and produced by We act Radio, with a special shoutout to executive producer Troy Miller and his merry band of farm animals, and the indefatigable Abby Grimshaw. Transcripts, which help us make the show accessible, are courtesy of Cheryl Green and her fabulous feline coworker. Find us every week on Apple Podcasts, Spotify, or wherever you get your pods. And if you like what we do here at Off-Kilter Enterprises, send us some love by hitting that subscribe button and rating and reviewing the show on Apple Podcasts to help other folks find the pod. Thanks again for listening and see you next week.

Tags: