Mayor Bill de Blasio was supposed to be a progressive hero on criminal justice. But his reaction to the murder of a New York Police Department officer last week could have come from his tough-on-crime predecessors Rudy Giuliani and Mike Bloomberg. On Friday, he called for the state legislature to make it harder for people to get released on bail — and referred to a drug offender who'd never been charged with a violent crime as a "hardened violent criminal" who should have been kept in jail rather than sent to rehab.
De Blasio is far from the first politician to find himself in this trap. The promise of "smart on crime"-style criminal justice reform is to reduce incarceration while reducing crime. But too often, that means that when crime actually happens, reformers react the same way their tough-on-crime predecessors did: by keeping more people locked up.
Policy is about trade-offs, and crime policy isn't any different. But policymakers still see it as an unacceptable failure of criminal justice policy if someone who has been in contact with the justice system and is released goes on to commit another crime. That prevents any genuine discussion of costs and benefits — and it leads, inexorably, to mass incarceration.
Why the shooting of an NYPD officer made de Blasio so angry
On October 20, NYPD officer Randolph Holder was shot and killed in East Harlem. The lead suspect in the case is Tyrone Howard — whom police happened to apprehend and arrest later the night Holder was shot.
Howard had a long criminal history. His arrest after Holder's death was the 11th time police had tried to arrest him since the beginning of September (in connection with another murder). It was his 28th arrest. He'd been arrested in 2009 in connection with another shooting, though there was never enough evidence to charge him with it. And he'd been convicted repeatedly for possessing and selling drugs.
But the last time Howard had been arrested for drugs, in the fall of 2014, the judge allowed him to post bail until his trial, then allowed him to attend court-ordered rehab — a "diversion" program — instead of prison. The judge who accepted the plea deal called Howard "a perfect candidate, in many ways" for diversion.
If you cast your hindsight aside, the judge was right. Howard had never been charged with a violent crime as an adult. (He'd been convicted of robbery as a teenager.) And he was addicted to PCP, which could very easily explain why he wasn't able to stay out of the drug trade.
Criminal justice reformers talk all the time about "nonviolent drug offenders" who are simply victims of their addictions, and wouldn't be committing crimes at all if they were allowed to go to rehab instead of prison; Howard seemed like just that sort of person.
De Blasio's response: Drug dealers should be kept in jail
After Holder was killed, de Blasio made it clear he disagreed: "Tyrone Howard simply should not have been on the streets." He took the opportunity to call for New York's state legislature to change its bail and diversion laws, so that judges could refuse to grant bail (or alternatives to prison) to offenders who posed a threat to public safety. (Most states have these laws; New York doesn't.)
De Blasio has actually been pushing for bail reforms for some time. He's usually doing it for progressive reasons: arguing that nonviolent offenders shouldn't be held in jail simply because they can't afford to bail out, and that violent offenders should be kept in custody even if they can pay. But after Holder's death, de Blasio defined "violent" down: If his bail reforms passed, he said, it would be obvious to a judge that a man like Tyrone Howard — a repeat drug offender who'd never even been charged, much less convicted, of a violent crime — was a safety threat.
In fact, de Blasio's reaction to Holder's death blurred the line between "drug crime" and "violent crime" entirely. De Blasio called Howard "a hardened violent criminal." His criminal justice coordinator, who also spoke at the press conference, implied that in the eyes of the mayor's office, dealing drugs was just as bad as violent crime: "It is well accepted that dealing drugs on a repeated basis is dangerous activity, it is dangerous to the community."
That's not an unexpected thing for a law enforcement officer to say. But it's a very unexpected thing for a member of the de Blasio administration to say.
In New York, "tough on crime" rhetoric and policing is identified with a particular — and recently past — mayoral era: the 1990s, when Rudy Giuliani was mayor, and the 2000s, when Michael Bloomberg was. Like the rest of the country, the state saw crime fall every year — as the prison population grew.
When de Blasio ran for mayor in 2013, his opposition to Bloomberg-era crime policy, symbolized by "stop and frisk," became the centerpiece of his campaign. It made him a progressive hero and a symbol of the changing times. It looked like local politicians could finally start being "smart on crime": abandoning the fiction that the city was about to fall into violence and anarchy, pointing out the drawbacks of tough-on-crime policies (especially when it came to communities of color), and loosening the reins on drug laws.
Before Holder was killed, de Blasio lived up to that admirably. But the tragedy pushed him into a position much more like his forebears: blurring the lines between drugs and violence, and saying that judges fail when they err on the side of sending someone to treatment instead of prison.
"Smart on crime" tools are about balancing risks
The murder of a police officer — any murder — is a serious crime. At the same time, it's only one crime. And the purpose of criminal justice policy has never been (and, barring some sort of science fiction intervention, can't be) about preventing all crime entirely.
During the tough-on-crime era of the 1990s, the objective of the criminal justice system was to reduce crime as much as possible — without regard to cost. That created mass incarceration as we know it today. It's the reason prison rates kept rising way beyond the point where they had any impact on crime: Policymakers simply treated the incarceration rate as a necessary result of crime policy.
The mantra of "smart on crime" is that policymakers can keep reducing crime while also reducing incarceration. The point is that there isn't necessarily a trade-off between the two: Because way more people are in prison than need to be there to keep crime low, many of them can be released without causing crime to spike.
But which prisoners ought to be released? And which people who get charged with crimes in the future should be diverted from becoming prisoners? This is essentially a matter of prediction, and no prediction is going to be right 100 percent of the time. Some drug offenders are more prone to violence than others.
Many prosecutors, probation officers, and judges around the country use some form of "risk assessment" to determine which offenders pose the greatest threat to public safety. Some risk assessments are more sophisticated than others, and some are more reliant on "static" factors in an offender's background than on things the offender can actually change. But even the most sophisticated and sensitive risk assessment tool doesn't promise 100 percent accuracy. Instead, what it promises is the ability to calibrate how many errors you're willing to accept on either side: how many people you're willing to keep in prison who would never commit another crime if they were released, and how many people you're releasing who will go on to commit another crime.
If you want an illustration of how this works, I highly recommend you check out this "parole simulator" the Marshall Project developed with FiveThirtyEight. It lets you decide how many prisoners should be designated "high risk" to reoffend, "medium risk," or "low risk" — and then simulates the outcomes for those released and those kept in prison.
Divide risk levels equally, and at least 20 percent of those released into the community commit another crime; conversely, at least 20 percent of those kept in prison were kept unnecessarily. (The GIF above actually shows pretty low error rates relative to other times I've run the simulation.)
Designate as many prisoners "high risk" as possible (the tool doesn't let you go above 90 percent), and this happens:
The only way to reduce that 2 percent risk to zero is to abolish parole entirely. And that applies to any other criminal justice policy that relies on risk assessment: The only way to eliminate risk is to incarcerate everyone who comes into contact with the system. That's exactly what the US says it wants to move away from.
The ghost of Willie Horton
Policymaking is a process of balancing desired outcomes against anticipated risks. The Marshall Project tool illustrates what that risk balancing ought to look like in criminal justice: the risks that people who are released will commit another crime against the risks that people who could be contributing members of society are locked up instead. But frequently, it seems, the rhetoric of "reducing incarceration while reducing crime" hides a zero-risk approach to reform: reformers who are only on board if no one can blame their reforms for any crime.
In practice, that means reformers are terrified of crimes committed by individuals who have had some contact with the criminal justice system and been released, whether that's being let out on bail, let out on parole, or released early on a reduced prison sentence. These people don't necessarily feel that if one thing goes wrong, it proves their entire strategy was a mistake. Their immediate fear is political backlash: If we let offenders go, and one of them does something terrible, the public will freak out and demand we crack down on crime — or elect our opponents who promise to be tougher.
That's especially true for the people who have skin in the game right now — not only politicians, but the prosecutors and law enforcement officials whose recent embrace of criminal justice reform has been so celebrated. "Here's everyone's fear," Ben David, the district attorney who oversees Wilmington, North Carolina, told me last week: "No one wants to let out a criminal who commits a crime of violence."
Bill de Blasio might call this a "Tyrone Howard" situation. But the name you'll typically hear is Willie Horton — the symbol of the high point for tough-on-crime politics in America. Horton was a convicted murderer out on a weekend furlough from prison in Massachusetts when he allegedly raped a woman and assaulted her partner. George H.W. Bush famously used the Horton incident in a 1988 campaign ad attacking his Democratic opponent, Michael Dukakis, who was governor of Massachusetts at the time.
It's a synecdoche. "My biggest fear is a Willie Horton situation," E.Y. Young, the head of the union that represents guards at federal prisons, told me last week. And when Bill Keller of the Marshall Project asked President Obama about his concerns for reform during a roundtable last week, he asked about a "Willie Horton-style horror story."
Criminal justice reform can't only happen when no one is committing crimes
The fear is understandable. It's also exactly the political bind that prevented policymakers from being willing to reform criminal justice policy for decades. And it threatens constantly to derail reform today.
Often, this is used as a reason to be moderate in reforms — reducing the number of drug prisoners, for example, without addressing violent offenders. That was President Obama's response when Keller asked about a "Horton-style" incident: "I think those are all real dangers, and we have to guard against those dangers — which is why I said that rather than think that we’re going to all solve this overnight [...] we’re trying to maybe start with some low-hanging fruit."
But it can also serve as a reason to undo reforms that have already taken place. That's what happened in Arkansas. In 2011, the state reformed its parole system to let more prisoners finish their prison terms out in the community (while being supervised) rather than forcing them to stay in prison for the whole term and then putting them out unsupervised on the street. But in 2013, after a series of newspaper articles about a mentally ill parolee who had committed a murder, the state's Board of Corrections reinstated strict parole policies. The result: The backlog of inmates without jail beds went from 240 or so in July 2013 to 2,400 in July 2014.
It shouldn't be surprising that undoing reforms after a "Willie Horton" scare puts states in exactly the position they were trying to avoid by passing reform to begin with. The zero-risk logic leads inexorably to mass incarceration. As long as we consider it unacceptable for someone who has been in contact with the criminal justice system and been released to commit another crime, incapacitation is going to be the only solution.
The only way to break out of the bind is to accept that just as some people who've never been arrested commit crimes, so too do some people who have been arrested (or even convicted) and released. This doesn't mean that avoiding recidivism shouldn't be a goal of criminal justice policy. But making policy based on fear of a Willie Horton situation — or a Tyrone Howard one — is tantamount to expecting people who have had any contact with the criminal justice system to have a violent crime rate of zero. No one expects that for the population as a whole; if the criminal justice system isn't going to incarcerate everyone it touches, we can't expect it for people who have been touched and let go, either.