Interview with Manhattan Institute policing and public safety fellow Rafael Mangual
At Berkeley Law School’s seminar on ‘the role of the elected prosecutor’ this month, we sat down with Manhattan Institute fellow and author of Criminal (In)Justice Rafael Mangual to discuss how campaigners’ efforts to secure ‘mass decarceration’ have the potential to severely compromise public safety.
This is an edited extract of the conversation.
Progressive panelists have made the case today that we have a ‘mass incarceration’ problem across California and around the country. Are we locking up too many people and, of those we are locking up, are their sentences more severe than necessary?
I think the best test of whether we have a mass incarceration problem is to ask whether we can decarcerate en masse without compromising public safety. One good place to start is to look at who actually goes to prison, why they go to prison, and how long they actually stay in prison for, and then what happens when they get released.
If you look at who’s in prison, about two thirds of the prison population at the state level – which accounts for about nine out of every 10 people in prison in this country – are there either for a violent felony or weapons felony.
The typical prisoner is not a first time offender. They’re very chronic. The median prisoner has about 10 prior arrests and five prior convictions. These are not people who have been denied second chances. And this is only a snapshot of the crimes that they’ve actually committed because most crime does not get reported, and most crime that gets reported does not get cleared. It doesn’t end up with an arrest. So those criminal histories really understate the degree to which those individuals pose a risk to the public.
“The idea that we’re locking people up and throwing away the key is nonsense. The median amount of time served in state prison in the United States is about 16 months. That’s it.”
But how long do they actually stay in prison? The answer is not very long. The idea that we’re locking people up and throwing away the key is nonsense. The median amount of time served in state prison in the United States is about 16 months. That’s it. Even if you disaggregate just the people in for violent offenses, it only goes up to two-and-a-half years when you’re talking about prisoners who are around a median age of about 25. These are individuals who are going to be back out on the street well within their offending prime.
And what we know from the recidivism data is that when these individuals do get out, and almost always they do get out, they go on to re-offend at extremely high rates. So if you look at just the state prison population over a 10 year period, about 83% of them are going to recidivate, meaning that they’re going to be rearrested for a new offense at least once.
On average, those individuals are going to generate about five rearrests, which again, is an understatement of the actual crimes being committed by these people because most crime doesn’t get reported. Most crime that is reported doesn’t get solved. So the idea that we can cut the prison population by 50, 60, 70 percent – which is what we would have to do to achieve parity with the other Western European democracies that we’re often unfavorably compared to – there’s no way to do that without releasing people who have been convicted of very serious crimes, who have shown a propensity throughout their prior history for committing serious crimes and who the statistics tell us are very likely to commit serious crimes in the future.
Who is at risk when decarceration campaigns meet with success? What is the practical effect?
To my mind, the pursuit of mass decarceration is the height of irresponsibility as it is essentially rolling the dice with the lives of people who are not fortunate enough to live in safe communities – so people who are living in the places where these offenders are going to be most likely to spend a big chunk of their time and victimize the people around them.
Across the country, is the campaign for mass decarceration still making gains or have we seen signs that the movement is begininning to ebb?
It remains to be seen. I’m a pessimist at heart and so I’m not quite sure that the reform movement has really lost much momentum. We are still seeing a lot of new proposals in jurisdictions, including the state of New York for things like Second Look, which is legislation that would entitle individuals who’ve served a certain amount of time to a reconsideration of their sentence. Or these ‘elder parole’ initiatives, which would automatically make eligible for release individuals who are 50 years old, which is not exactly what you would think of as the age range for elderly.
We saw the Massachusetts Supreme Court basically eliminate life without parole for individuals 21 and under – who they call ‘children’ – so I think we’re going to continue to see more restrictions on life without parole sentences. So they are certainly not done.
We’re still seeing lots of ‘police reform’ happening too. New York City just passed the How Many Stops Act, overriding the veto of Mayor Eric Adams. So there’s still quite a lot of movement in the reform direction. I think the fact that we’re in an election season might explain why we’re seeing some movement in jurisdictions like San Francisco and New York state, with Governor Hochul’s infusion of National Guardsmen into the subway system – which, I don’t know, the New York Times may want to write an editorial about, given the whole Tom Cotton episode – and D.C. now has this new anti-crime measure that’s being considered in their city council. I think these are pretty modest proposals back in an anti-crime direction, and I’m not sure that they’re not just election season ploys to try and ease the concerns of a public that has rightfully grown more and more concerned about diminishing safety.
We’ve seen today the debate between progressive district attorneys and those elected prosecutors with a more traditional view of their position and responsibilities. How do you see the differences in practice?
We’re at a point now where almost 70 million Americans live in jurisdictions with progressive prosecutors – prosecutors that are characterized by a collection of policies that include things like non-prosecution rules, blanket policies saying ‘we’re not going to prosecute any of these categories of offenses’ or ‘we’re not going to pursue sentencing enhancements in these kinds of cases’ or ‘we’re not going to ask for bail in these kinds of cases or pretrial detention in these kinds of cases’.
Essentially, the progressive prosecutor movement is characterized by a recognition of the power that the prosecutor holds to affect the outcomes that criminal justice reformers have long been concerned about. And for a time the effort to address and alleviate those problems, as they saw them, was restricted to the political process. As it should be, right? They were lobbying for reforms, for new rules, for new laws to be written, for existing laws to be repealed or amended.
“We just heard Chesa Boudin bragging about his ability to close a jail and how much he reduced the prison population. That is not a goal that a traditional prosecutor enters that role having.”
And they realized that, by simply capturing this particular office in the largest cities in some of America’s states, that they could actually have just as significant, if not more significant, impact on the outcomes that they care about on incarceration rates. We just heard Chesa Boudin bragging about his ability to close a jail and how much he reduced the prison population. That is not a goal that a traditional prosecutor enters that role having.
I think what we see is a fundamental shift: where an opportunity was recognized – and you have to tip your cap to the political brilliance of it – to basically change the system from within by grabbing the reins of power and saying, ‘we’re no longer going to do the things that this office has generally been understood to do’.
And a lot’s been made about the electoral success of the movement and what that means, whether it constitutes a public mandate. I don’t think it does, and I don’t think it does for a couple reasons. One is I think these are still relatively low salience elections, usually down ballot contests where the primary is what really decides it. And those primaries are often happening in off-year election cycles with very, very low turnout.
And I think there’s a lag. I don’t think people have quite caught up to the idea that this is a thing. I think people see the prosecutor’s race on the ballot and, in their minds, these are individuals who are vying for an office to fight crime – and the average American just doesn’t know that there are prosecutors who actually see themselves as ‘reformers’ first and law enforcement officers second. So I think it remains to be seen whether this is a movement that’s going to continue to grow. There was a big victory that the progressive prosecutor movement just had in Houston, where Kim Ogg, who was kind of a progressive prosecutor herself and saw the light while in office, has just found herself defeated after being primaried by somebody who was running to her left.
When and where did the progressive prosecutor movement first gain traction – and where did San Francisco stand in that campaign?
San Francisco certainly wasn’t the first domino to fall, but it was a place where it was only a matter of time before the movement reared its head. I mean, it’s a very, very progressive city with very, very radical politics. So it’s not surprising to me at all that the movement made its way here. It’s actually probably more surprising that it didn’t start here.
I think one of the major first dominoes to fall was St. Louis County, Missouri in 2018 – when Robert McCullough was successfully primaried by Wesley Bell in an election that was based on the Michael Brown case. That was the whole theme of the election.
“San Francisco certainly wasn’t the first domino to fall, but it was a place where it was only a matter of time before the movement reared its head.”
Wesley Bell, despite the fact that the Obama Justice Department came in and said, ‘no, this was a justified shooting’, and despite the fact that Robert McCullough’s office had said, ‘no, this was a justified shooting’, Wesley Bell came in and ran on being able to reopen that case, and he did reopen the case. And guess what? He came to the same conclusion that everyone else came to and he closed the case, but by then it was too late. So it’s interesting because the progressive prosecutor movement’s probably first real big victories were won on a foundation of a ‘police accountability’ argument. And you have Kim Foxx in Chicago and Rachel Rollins in Boston, and Marilyn Mosby in Baltimore, and Larry Krasner in Philadelphia, and Eric Gonzalez in Brooklyn, and Alvin Bragg in Manhattan and Kim Ogg and Kim Gardner in St. Louis. And the list goes on and on. And Diana Becton in Contra Costa County and George Gascon in Los Angeles and, before you know it, here we are where the reality has fundamentally shifted with respect to what being a prosecutor actually means in America.
Obviously in San Francisco our host today, Chesa Boudin, was recalled. Does that herald further recall campaigns around the country, and further successes for recall campaigners?
I think it’s too early to say. I also think there’s a degree to which what happened in San Francisco is a bit of a unique situation. San Francisco doesn’t have the kind of gang infestation that we see in cities like Chicago and Baltimore and Philadelphia. So that really wasn’t the issue that drove the recall.
One of the reasons that you don’t see that issue driving recalls in other parts of the country – and not every jurisdiction has the recall mechanism available – is that most of the public in these cities is able to insulate themselves from the kind of serious crime that people like me are worried about increasing as a result of progressive prosecutorial policies. The west and south side of Chicago is where the gun violence stays. If you live in Lincoln Park or Lakeview or the Gold Coast, things have diminished a little bit, but the sky hasn’t quite fallen.
Whereas in San Francisco, the thing that I think really motivated the recall effort was the public order problem. And unlike the serious violent crime problem, the public order problem in San Francisco is much more evenly distributed. And so I think a larger share of the general public had a much more intense exposure to that particular aspect of the downside risks associated with the non-prosecution policies of Chesa Boudin. I think that’s what explains why he was successfully recalled here and why, say Gascon, wasn’t successfully recalled in Los Angeles where I think those things are still relatively more cabined to certain parts of the city in a way that’s not necessarily the case in San Francisco.
Rafael Mangual is the Nick Ohnell Fellow at the Manhattan Institute, a contributing editor of City Journal, and a member of the Council on Criminal Justice. His book, Criminal (In)Justice, was published in 2022.
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