Mimesis Law
8 August 2020

Presidential Campaigns Lack Real Ideas On Criminal Justice Issues

October 25, 2016 (Mimesis Law) – Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.

Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole.


Our criminal-justice system is failing the American people. Once a controversial statement, that is now a sentiment expressed across the ideological spectrum. Research, data, and public opinion have created a perfect storm of information clearly laying out how our policies fail to make communities safer, and instead can ruin lives, tear apart families, and devastate entire communities.

Come on. Would communities, lives, and families really be better off if we pink-slipped all the police officers, prosecutors, and court staff handling criminal dockets? Crime is still down, juvenile rates are down, and drug abuse, except marijuana, is not increasing. She appears to fall prey to the availability bias, not aware that things were once much darker. Certainly, the criminal justice system didn’t pull us out of the crack cocaine epidemic alone, but it was part of making people, families, and communities safer.


The most important criminal-justice reform that the next administration must undertake has nothing to do with policy and everything to do with rhetoric. Unless our nation’s top leaders stop pumping out the false narrative that we are living through an epidemic of racially biased police shootings, as FBI director James Comey warned this past weekend in San Diego, homicides will continue to spike in racially diverse cities as officers back off of proactive policing. Riots following fatal encounters between officers and blacks will become more frequent, and more attempts will be made on officers’ lives.

If she can predict the future, then she needs the play the lotto. Race relations in the cities might be edging backwards toward the sixties, but it is unwarranted to expect Helter Skelter. McDonald, if you didn’t know, is the promoter of the Ferguson Effect idea. While there is some basis to make the inference she does, it really doesn’t matter. Citizens expect their police officers to do their jobs, and when the officers don’t, the people get upset. They get even more upset when they aren’t doing their job for reasons owing to race. Further down this spiral, it’s hard to separate cause from effect.

Solomon offers a partial explanation as to why non-whites perceive police as a problem:

African Americans are 2.5 times more likely to be arrested than their white counterparts, and African American males are 21 times more likely to be shot by a law-enforcement officer than their white counterparts. In fact, a report by the United Nations Committee Against Torture highlighted the “deep concern at the frequent and recurrent police shootings or fatal pursuits of unarmed black individuals,” as well as “the alleged difficulties to hold police officers and their employers accountable for abuses.” In other words, not only are many communities of color rightly concerned about police violence — the evidence shows that, even when many factors are controlled for, people of color are still disproportionately impacted.

While these may indeed be factual, they are not conclusive of rampant racism. For her part, McDonald attacks those making this sort of inference, although quite happy with her own inference, i.e. Ferguson Effect:

This charge of racially biased policing, amplified relentlessly by the media, is dangerously false. Four academic studies came out this year, alone, showing that police officers are, if anything, less likely to shoot blacks than whites; there is no evidence that they are more likely to kill blacks.

Twelve percent of white and Hispanic homicide victims are killed by the police, compared to the 4 percent of black homicide victims who are killed by police officers. Last year, whites made up 50 percent of all individuals fatally shot by the police; blacks were 26 percent of those victims — less than would be predicted by the black violent crime rate.

In her response, McDonald adds to this, by stating the following:

Criminologists have tried for decades to prove that racial incarceration rates represent systemic criminal-justice bias and have been forced to conclude, along with criminologists Robert Sampson and Janet Lauritsen, that the overwhelming evidence establishes that “large racial differences in criminal offending,” in Sampson and Lauritsen’s words, not racism, explain why more blacks are in prison proportionately than whites and for longer terms. Once criminal history is taken into account, along with gang ties and other factors, racial disparities in sentences disappear.

The problem with these sorts of statistics is they can only describe what is happening and lack the power to directly explain why it’s happening. Human behavior is complex, and the more humans, situations, environments, and time periods you add, the more complex the picture becomes.

Ultimately, it does not matter because the perception of the citizens is what matters. Right now one group views Black Lives Matter as a terroristic organization, and the other views law enforcement much the same. Numbers derived from neat equations will do little to persuade either side.

Each writer took the extreme position on this issue because that’s probably what RCP wanted, and it’s probably the sort of thing that they do for their respective think tanks. In reality, neither side is completely right and completely wrong. While law enforcement helped tame crime in cities, the police have been used to support racially oppressive laws.

While the media might be hyping some police shootings, things like racial profiling do occur. Whether things like racial profiling is ever appropriate can be debated, such a policy can erode public trust. For example, regardless of whether a program like New York’s so-called Stop and Frisk was effective, it was certain to attract media attention, court challenges, and community backlash. Contrary to what McDonald suggests, effectiveness is not the sole criterion.

After talking about sentencing reform, Solomon brings up her final suggestion to the candidates:

And, finally, policymakers need to address what happens to people once they enter into the criminal-justice system. As it is currently structured, our prison system is not organized or operated in a way that prioritizes rehabilitation. Most individuals enter the system with many challenges.

Rehabilitation is great and wonderful, when it works. Nearly everyone would be willing to support programs that reduced recidivism and thus decreased prison populations. As it stands, a significant number of crimes are drug offenses or committed to support a drug habit.

Eliminating these folks as re-offenders would be an obvious positive. The problem, belied by Solomon, is that rehab centers aren’t necessary, some well-known treatment programs are ineffective, and those that do work appear to be only minimally effective. In many cases, prison looks like a cheaper and more certain intervention.

MacDonald concludes with criticizing federal involvement in law enforcement:

However much a president may yearn for a set of federal policies to tackle crime, Washington’s role in crime-fighting is negligible. Crime and policing are overwhelmingly local matters; the feds are as prone to making matters worse as they are to solving local crime problems.

On the issue of federal spending, she argues that local dollars would be better collected and spent by local governments without Washington involvement. I didn’t know we were making out a wish list to Santa here. The broader issue here is that it would require federal tax cuts and the ability of the local governments to recapture those dollars. Plus, some cities may not be able to raise the revenue locally.

In any event, this argument ignores the fact that through grants, Washington can and does influence local law enforcement; so, it’s not correct to say its impact on local law enforcement is negligible. Plus, with expansively written federal criminal statutes, favorable forfeiture rules, and joint task forces, it’s easy for the feds to influence enforcement and charging decisions.

MacDonald wraps up acknowledging that federal drug laws could use some tweaking, the federal overlord solution to civil rights violations is a bad one, and laying the primary blame of inner-city crime at the feet of the breakdown of families. Not terrible thoughts. Although reducing sentences for drug offenders have lost some steam. And inner-city crime is not the only crime the nation should care about. So too does one wonder what the federal government can do about family breakdown.

The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.

2 Comments on this post.

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  • Pedantic grammar police
    25 October 2016 at 3:22 pm - Reply

    What exactly was it that pulled us out of the crack cocaine epidemic? Could it be the fact that it never existed outside the minds of drug warriors?

  • Picador
    25 October 2016 at 4:28 pm - Reply

    ‘African Americans are 2.5 times more likely to be arrested than their white counterparts, and African American males are 21 times more likely to be shot by a law-enforcement officer than their white counterparts. […]’

    “While these may indeed be factual, they are not conclusive of rampant racism.”

    The 21x figure is not exactly factual. Tracking back the citations, we find the original source:


    “The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.”

    That’s certainly alarming, but it’s also cherry-picked: the statistic for the 15-to-19 age group has been transmuted in the retelling to apply to all black and white men. The statistics I’ve seen elsewhere show a racial disparity that is dramatically lower than 21-to-1 — it’s closer to 2-to-1 or lower (about twice as many whites as blacks are killed by police, which is of course not as high as the white-to-black ratio in the population). There are also confounding factors like the fatality of shootings being profoundly affected by the proximity to a well-equipped trauma centre (which are less likely to exist in many black neighbourhoods).

    Of course, the 21x figure for teenage boys is shocking. But looking at the actual body of data instead of this one cherry-picked (and then misrepresented) example, the picture becomes much murkier.