Rafael Mangual argues that the progressive prosecution movement misrepresents data on mass incarceration and criminal justice. He rejects claims that the system is inherently oppressive or that incarceration increases recidivism, and warns that lowering incarceration rates to match Western Europe would be disastrous.
Director of Legal Policy at the great Manhattan Institute, and his is the latest video at PragerU, Fewer Penalties, More Crime. Rafael, welcome to the Dennis Prager Show.
Uh, thanks so much for having me.
You have a wonderful video up there.
Thank you.
You enjoy making it?
I did, I did. It was a great process. This is actually my second review video. The first one I did was on the debate about mass incarceration, so I thought this was a pretty good follow along since prosecutors have kind of been put front and center in the mission to decarcerate on a mass scale, which I think is something the country's smack dab in the middle of.
I always ask a question. It's just part of my nature. I— it's— it really is built into me. I ask the question, why? And that's a much tougher question than what. So I'm putting you on the spot, and you may not even have an answer, but if you have one, I'm very curious. Why would anyone think that a general release of criminals is good for society?
So I think there are a couple of answers to this question, and I'm going to have to channel my, you know, opponents in the policy sphere right now. I think the arguments that they make most often in response to this question is one, that the criminal justice system has been a driver of social and racial inequities over the course of American history. And to their mind, the racial disparities in the criminal justice system, the growth of the incarcerated population, the growth of the percentage of the population that's been involved with the criminal justice system, that all of that reflects some kind of inherent injustice because the system itself was sort of developed and built and operated in order to oppress the less powerful and to protect the more powerful. The other more sophisticated argument that a lot of people make is that to their mind the criminal justice system has produced more harm than good. They argue, for example, that incarceration has a kind of criminogenic impact that makes people so so much more likely to offend having been through the system that not putting them through the system at all actually reduces the overall harm that society is exposed to. I don't buy either of those arguments. I don't think the data support either of those arguments, but that is, I think, the sort of main motivations for the people pursuing this project.
I've always respected you, and you've actually increased my respect, and I wanted to explain to my listeners why. It is a good sign when a person who differs with arguments can actually well articulate the arguments with which they disagree. I would be very surprised if any leftist could articulate as well our arguments on any given subject. They create phony arguments, as I read to you in the first hour from Ibram X. Kendi. He makes up things that we say that we don't say, like blacks are inferior. I don't know anybody who ever said that. I'm sure there are such people. I actually think leftists believe that because they don't make the same moral demands on blacks, but that's a separate question. In any event, you well articulated what they would say. Interestingly, what is missing from their entire argument is, to me, what is the most operative question. How many people in prison for violent crimes— we'll leave drugs aside for now— how many people in prison for violent crimes do not belong there? They don't address that, right?
They don't address that, and it's really a major flaw in, in the, this one of the main premises of their arguments in favor of progressive prosecution, right? The, the advent of progressive prosecution really has sort of two root causes. One is the belief that prosecutors were not doing enough to hold police officers accountable. We saw this when Robert McCullough declined to prosecute Darren Wilson after the shooting of Michael Brown, we saw that—
Well, they say we saw this. Actually, the fact is Michael Brown attacked the officer.
Exactly. There was good reason for why that case was not prosecuted, and I think the same can be said about the decision not to criminally prosecute Daniel Pantaleo in the death of Eric Garner in New York. But those two incidents really created a national movement to start targeting these officers as ways to really impose more scrutiny and the potential for more penalties on police departments. But the second prong of the progressive prosecutor movement is really this idea, and you can thank people like John Pfaff, a law professor at Fordham University, for really popularizing this claim, but the idea that prosecutors were really at the center of the mass incarceration problem, such that if you agreed with the premise that the United States over-incarcerates on some large scale, that it's really an operation of decisions prosecutors have been making over the last 20 to 30 years. And so in order to get at that problem and to decarcerate and get us back down to, you know, say incarceration levels on par with other Western European democracies, which I think would be a disaster to pursue.
All right, hold it there if you would. Don't forget that. Rafael Mongual, legal policy, Manhattan Institute.
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