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June 21, 2021

"Can Criminal Justice Reform Survive a Wave of Violent Crime?"

The question in the title of this post is the headline of this notable new commentary by John Pfaff in The New Republic.  The subheadline of the piece highlights its data-crunching themes: "An uptick in homicides across the country is getting blamed on reforms. That argument gets the data all wrong."  I recommend everything Pfaff writes in full, and here are excerpts from this very lengthy piece:

Even as the pandemic lockdown helped push down many crimes, last year saw an unprecedented spike in homicides nationwide, likely more than twice the largest previous one-year rise.  And given the retaliatory nature of lethal violence and the ongoing disruption from the pandemic, we should expect homicides to remain high in 2021 as well.  One study in Chicago, for example, found evidence that cycles of retaliation and counterretaliation meant that a single shooting was often the root cause of three, or sometimes 60, or once almost 500 subsequent shootings over the next few years.

How to stop this wave of violence is thus one of the most important policy questions for 2021, but asking it has rarely felt more fraught.  The surge in homicide comes at a moment when conventional responses to crime face more intense criticism than any time since the civil rights movements of the 1960s.  Reformers and activists across the country have spent the past decade campaigning to reduce our reliance on prisons, jail, probation, and even the police.  The changes we’ve seen may be less dramatic than what many advocates have hoped for, and certainly less dramatic than how many of their detractors describe them, but they both reflect and have nurtured a growing shift in popular views on crime control....

Perhaps the most important feature of last year’s rise in homicides is just how uniform it appears to be.  In 2020, homicides rose in 60 of the 69 major police departments noted above, and in almost all cases at a rate more or less proportional to homicides in 2019.  Any one city’s share of homicides was roughly the same as its share in 2019, just appreciably higher.  Unlike many previous periods, the spike was not the product of a few cities experiencing an especially bad year (in 2016, around 20 percent of the national increase in homicides was just due to Chicago), but of almost every city suffering in something close to unison.

One important upshot of this uniformity is that there is no evidence that cities with more progressive prosecutors experienced relatively worse outcomes than those with more conventional district attorneys.  In fact, two of the eight departments that reported declines in homicides — Baltimore City, Maryland, and St. Louis County, Missouri — are home to two of the country’s most high-profile “progressive prosecutors,” Marilyn Mosby and Wesley Bell.  Opponents of progressive prosecution are already invoking the homicide spike to push back against the movement, but the data simply do not back them up....

It is also important to note the inaccuracy of trying to pin rising homicides on efforts to “defund” the police.  In a December 2020 press conference, for example, Gregg Sofer, at the time the U.S. attorney for the Western District of Texas, tried to blame Austin’s rise in homicides on the city’s recent decision to cut police funding.  The problem?  Homicides had started to rise well before the cuts, in no small part because the budget in question did not go into effect until October 2020, so almost none of the proposed cuts would have occurred until 2021 at the earliest — and most of the 2021 cuts involve simply shifting which agencies are responsible for certain tasks....

If not progressive prosecution or defunding, what caused the surge in homicides?  It will be years before we have a clear answer, but the two leading explanations are the chaos wrought by the Covid pandemic and some product of the protests that have taken place against police violence.  (Other factors surely mattered, too, such as an unprecedented uptick in gun purchases.) Both theories are valid, but in complicated ways....

It is nearly impossible to understate the chaos of the past year and a half: not just an epochal pandemic that has caused mass death and brought once-in-a-generation economic devastation in its wake, but the fearmongering rhetoric of Donald Trump, the unsettling and still-unresolved insurrection of January 6, and widespread protests of the sort that risk scaring and unnerving white voters.  These are conditions that would push much of the public in a more punitive direction even absent any change in crime rates; add in the unprecedented spike in homicides, and demands for severity will grow even stronger, politically speaking.

The signs of that growing severity are widespread.  Even though prisons and jails have been leading hot spots for spreading the coronavirus — not just to the poor communities of color overrepresented in the prisons’ populations, but also to the more rural and white working-class communities where correctional officers tend to live — state prison populations barely budged, and early declines in county jail populations have been mostly undone.  Democrats and Republicans, governors and legislators and mayors: Almost no one was willing to reduce prison or jail populations.  The pandemic provided compelling political cover for releasing large numbers of people from prison; that so few took advantage is telling evidence of a deeper reticence toward real change....

Reform efforts will inarguably face tougher opposition in the years ahead.  The social and economic upheavals of Covid, like the emotional shock of 9/11, would likely have been enough on their own to shift many people’s attitudes on crime policy in a more punitive direction; the homicide spike of 2020, and its continuing fallout through 2021, all but guarantee such a move — especially for issues like police funding.  Conservative state legislatures show increasing interest in limiting the cuts that can be made by bluer cities, where support for reform may remain high.  But all these transformations do not mean that the defenders of the status quo are guaranteed a victory.  They are using the current atmosphere of fear to push hard against reforms, but they are also facing more effective and motivated opposition than at any other time recently, and support for reform still seems high in the communities that are most directly affected.  Meanwhile, there is little to no evidence linking the rise in homicides to the reforms that have actually been implemented, many of the reforms being fought for are designed to reduce violence immediately, and many may do so both more effectively and at a lower social and human cost than the status quo.  The politics may be turning toward the status quo, but the data are not.

These excerpts only capture a small slice of Pfaff's interesting discussion in this new piece.  But I find problematic and discouraging that he fails to note the latest encouraging data from the Vera Institute concerning declines in US prison populations.  Pfaff states here that "state prison populations barely budged" during the COVID pandemic, but this Vera report finds that the US prison population dropped by over 240,000 persons (17%) from 2019 to spring 2021.  This is much more than "barely budging," though I know many advocates were hoping to see even broader decarceration efforts during the pandemic.  Still, Figure 5 of the Vera report shows that nearly every state experienced at least 10% decline in its prison population during the pandemic and many states saw declines of 25% or more. 

As I noted when the Vera data was released earlier this month, the national prison populations according to this data is now the lowest it has been in over 25 years and the lowest per capital  rate in more than three decades.  Pfaff is right to wonder and worry about how increases in violent crime might impact recent reductions in mass incarceration, but I fear he tends to too often see the criminal justice reform story through the lens of violent crimes when it has so many other notable dimensions.  I believe many states (and the federal system) did a reasonable job reducing the number of less serious offenders subject to incarceration.  If we can continue to do that and only use incarceration for the most serious, violent offenders (and also allow persons subject to long terms to get sentencing second looks) we might have reason to be optimistic that the US will soon no longer be the world's leader in locking its people in cages.

June 21, 2021 at 07:49 PM | Permalink


Good points are made here, as always, but I will note that Vera also says jails are refilling, and that there are not enough legislative changes being made to make these decarceral gains stick.

Posted by: Rory Fleming | Jun 21, 2021 8:08:01 PM

I share your concerns that a return to post-pandemic normal will include returning jail and prison populations. But there is much that can and should be done to try to "lock in" recent reductions that are distinct from a focus only on violent crime and our reactions thereto.

Posted by: Doug B. | Jun 21, 2021 9:51:24 PM

Definitely. I think there's two sociological phenomenon at work to incentivize talking about violent crime the way Pfaff does. First, in my opinion, law schools incentivize students to think of the big cases as the sexy ones they want to handle. Then, law profs will want to think and write about murders, mainly (not sex crimes though, because that's triggering). Then, anecdotally speaking, the top law enforcement officials who are most tough-on-crime about violent crime also tend to be the most draconian on nonviolent crime. Look at Amy Weirich in Memphis, for example, who was willing to ruin her reputation with prosecutorial misconduct in one of her biggest murder cases - she also proudly discusses drug court as her "velvet hammer." Or Baton Rouge DA Hillar Moore, who wants LWOP or death in murder cases, but also talks about supporting (and obtains) 50-year prison sentences for people selling a tiny bit of heroin to undercovers.

Posted by: Rory Fleming | Jun 22, 2021 12:04:40 PM

My actual-world answer to your question is that a horrific murder committed by an inmate released on a sentencing reduction program has the potential to undo that program.

My ideal-world answer would be similar . . . but statistical. Too much serious violent crime by people released due to a program should be enough to stop the program. Just how much is "too much" is of course subject to debate.

Unfortunately, I think my real-world answer is closer to what will actually happen. From a statistical point of view, it does at least approximate the ideal-world answer. That is, more recidivism by people released increases the odds that one case will be horrific enough to undo the whole thing.

Posted by: William C Jockusch | Jun 22, 2021 11:43:14 PM

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