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Summer 2014
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NEW BOOK:
The Immigration Solution: A Better Plan Than Today's
by Steven Malanga, Heather Mac Donald, Victor Davis Hanson
The Immigration Solution.

Are Cops Racist? How the War Against the Police Harms Black Americans.
by Heather Mac Donald
Are Cops Racist?

Eye on the News

Heather Mac Donald
Proactive Policing, Lax Jailing
As William Bratton leaves the LAPD, a horrific murder case highlights the importance of his reforms.
7 August 2009

Selected Responses:

Sent by Frank Silbermann on 08-09-2009:

In "Proactive Policing, Lax Jailing" Heather Mac Donald wrote: "To date, policing and incarceration are the only known social programs that can be shown to reduce crime; others may eventually be found, but until they are, it is folly to undermine them for fiscal or ideological reasons."

That is not quite true. Here in Memphis, Tennessee, the rate at which middle-class people are mugged or car-jacked has become greatly reduced by the increasing number of people taking advantage of Tennessee's "shall-issue" concealed handgun permit law. Likewise, burglaries while the occupants are home have been greatly reduced by the protection the law affords to homeowners who shoot burglars. Admittedly, the overall crime rate may not be affected, as criminals rob chain stores whose insurance companies demand that employees be forbidden to carry guns, and people associated with drugs and gangs murder one another with great regularity. But such crimes are of less concern to the average person.

Sent by Carol Sobel on 08-07-2009:

I am astonished by this piece of writing that pretends to be journalism. It would be good 1) if Heather Mac Donald disclosed that she and her company received approximately $500,000 to consult with Chief Bratton on his police assault on the homeless in Los Angeles, yet she pretends as if she is independent; 2) the murder of Lily Burk, the daughter of a lawyer who has devoted countless pro bono hours to bettering the lives of the people who live on Skid Row, was a terrible tragedy, but it does not prove the exploitative point Mac Donald attempts to make; and 3) I am not "anti-police," the ad hominem attack Mac Donald uses to describe me. I believe we all must abide by the law, including the police. That is what our constitutional system depends upon.

I would point out, too, that in his seven years here, Chief Bratton lost every lawsuit filed against him over his assault on the homeless in Los Angeles. It is important to note, however, that Chief Bratton does what he is charged with doing. The failure in Los Angeles, now described as the "meanest" city in the nation toward the homeless, is the failure of the political leadership to approach these issues with anything other than a hammer and a gun.

Heather Mac Donald responds:
Carol Sobel is as ignorant about the Manhattan Institute as she is about Skid Row policing. The Manhattan Institute has never received any money on behalf of or from Chief Bratton. Criminologist and Manhattan Institute senior fellow George Kelling did consult for Chief Bratton early in the chief’s tenure in Los Angeles. Kelling did so as an independent scholar; his consulting work had nothing to do with the Institute.

The arrest of Charles Samuel is a perfect place to test Sobel’s hackneyed charge that Skid Row policing is an “assault on the homeless.” Samuel’s arrest was a paradigmatic example of the LAPD’s Safer City Initiative, which Sobel and others have fought incessantly to shut down; readers can judge for themselves whether it constitutes abuse.

Two LAPD officers approached and questioned Samuel because he was drinking in public. There is no question that such interactions over alcohol occur regularly on Skid Row; they usually conclude with the officer asking the vagrant to pour out his liquor and walking on, absent the discovery of further law-breaking. Why do the police try to discourage public drinking on Skid Row? Because it so often leads to violence, mostly by one vagrant against another. Intervening in someone’s bender at 4 p.m. can prevent a stabbing at 11 p.m. A week after Samuel allegedly murdered Lily Burk, another homeless man in a downtown encampment gouged out the eyes of a fellow vagrant and fatally slashed his throat with a broken bottle in a dispute over money. It will not be at all surprising if the alleged assailant turns out to have been drinking all day.

After the police approached Samuel, he told them that he was on parole and they searched him, as they are entitled under the law to do. That search turned up a crack pipe, and the officers made an arrest. It is precisely such lawful, proactive policing that has radically reduced violence on Skid Row and that in this instance got a murderer off the streets.

Sobel and other litigators regularly draw a portrait of an LAPD trampling the rights of the homeless; this portrait can be tested any day of the week by a trip to Skid Row. Visitors will see officers treating the homeless with respect and trying to persuade them to accept assistance. The police offer shelter and services instead of jail to every misdemeanor offender whom they decide to cite, if the offender has no recent history of violence. Few people take up the offer, preferring a quick lock-up and return to the streets to any time in rehab.

The federal judges who have ruled against the LAPD do not show any evidence in their opinions of having spent a moment observing the lawless Skid Row encampment scene or the department’s efforts to bring safety and order to the area. The architect of the Safer City Initiative, commander Andrew Smith, was regularly greeted like a hero and friend by the homeless when he toured the area. One of the judges who ruled against the department accepted into the record the declarations of homeless witnesses who had lied about their probationary status, who gave neither the date nor location of their alleged encounter with the police, and who had disappeared without leaving a trace. The city offered the testimony of mission workers and encampment dwellers about the benefits to the area from the Safer City Initiative and the restrained behavior of the police. Such testimony did not appear to have made a dent in the judge’s conceptions.

The campaign against the Safer City Initiative shows no sign of abating. If the advocates finally manage to shut it down, the result will be more deaths and despair and fewer jobs for low-income workers if Skid Row employers decide that cleaning up feces and needles on their doorstep each morning is not an acceptable cost of doing business.

The recent arrest of a vicious murderer in Los Angeles vindicates—tragically, only after-the-fact—several policing and sentencing policies that anti-law-enforcement advocates have fought for years. One of those policies—broken-windows policing—is among LAPD Chief William Bratton’s greatest legacies to Los Angeles. In the wake of Chief Bratton’s recent resignation, it is all the more important to affirm the value of his policing reforms, which remain contested to this day.

On July 24 at around 3 pm., 17-year-old Lily Burk was walking down a midtown Los Angeles street on an errand for her mother. A 50-year-old homeless parolee with a three-decade-long rap sheet confronted the high school senior as she approached her Volvo. Moments later, Charles Samuel was driving the Volvo away with Burk in the passenger seat. Samuel took Burk to an ATM on Los Angeles’s Skid Row, where she volunteered at a needle-exchange program and where he was enrolled in a drug rehab program as punishment for a parole violation. Burk tried several times to withdraw cash on a credit card without success, according to the Los Angeles Times. Over the next 25 minutes, she would separately call her mother and her father seeking help in getting cash on the credit card, but her father told her that doing so was not possible. At 4.52 pm, Samuel pulled the Volvo into a Skid Row parking lot at Alameda and 5th Street and abandoned it. Burk had already been murdered, her head beaten and throat slashed open with a broken bottle; her body was left in her car.

Samuel then walked nearly a mile through Skid Row, drinking beer from a paper bag in violation of L.A.’s open container law. Two LAPD officers on horseback stopped him for the public-drinking offense and questioned him. He told them that he was on parole and agreed to be searched, according to the police. They found a crack pipe in his pocket and arrested him. The post-arrest search of Samuel turned up a Volvo key and a cell phone. The next morning, a worker from a Skid Row business discovered Burk’s car with her body in it. Samuel’s prints were in the car; his clothes had blood on them.

Samuel’s apprehension shows the enormous power of broken-windows policing, which the American Civil Liberties Union has fought against on L.A.’s Skid Row and throughout the country. Enforcing quality-of-life laws not only restores a sense of order and safety to an area, it also nabs serious offenders. There is a great chain of being, it turns out, in criminal behavior. Hardened criminals are not usually scrupulous about obeying a whole range of laws—whether littering, loitering, or traffic codes. The guy lying across the entrance to someone’s business, drinking whiskey from a bag and tossing his trash on the sidewalk, most likely is not breaking the law for the first or the last time. When officers question people in high-crime areas for misdemeanor offenses, they regularly find warrant absconders and parole violators. In 1996, a New York police officer nabbed a young man jumping a subway turnstile, a crime that a decade earlier had been regarded as simply an inevitable response to poverty and too trivial for the police to worry about. The turnstile-jumper, John Royster, turned out to be wanted for an ongoing campaign of terror against women in New York that included murder, rape, and a nearly lethal beating; had he not been picked up for the subway offense, he undoubtedly would have gone on to assault more women.

In 2003, LAPD Chief William Bratton launched a campaign to reclaim the 50-block area of downtown Los Angeles known as Skid Row from the squalor and violence that had engulfed it for two decades. He announced that he would use broken-windows policing to restore order and to help locate the thousands of violent parole violators and absconders who hid among the area’s filthy, lawless homeless encampments. The ACLU and L.A.’s large retinue of professional cop scourges promptly unleashed what became a rolling series of federal lawsuits to shut down Skid Row policing. Merely questioning the homeless for littering, selling illegal merchandise, and jaywalking, they said, constituted illegal harassment of the poor. UCLA law professor Gary Blasi charged the LAPD with trying to “ethnically cleanse” downtown to make way for gentrification. A hostile federal judiciary lapped up every preposterous charge the advocates leveled against the police, but the LAPD continued enforcing public-order laws on Skid Row, producing some of the largest crime drops in Los Angeles and bringing a modicum of sanity to streets that had resembled bedlam just five years earlier. The beneficiaries of this crime drop included elderly residents of the neighborhood SROs, vagrants seeking to get clean and turn their lives around, and low-income workers in the area’s intrepid small wholesalers and factories, who no longer found themselves victimized by psychotic drug users as a matter of course.

And now Charles Samuel will be taken off the streets and brought to justice, thanks to two Skid Row officers’ willingness to ignore ACLU propaganda and accost a vagrant drinking in public.

But while sound policing was able to get a homicidal criminal off the streets before he could strike again, sound incarceration policy was unfortunately not given the chance to prevent him from murdering Lily Burk in the first place. California’s “three strikes and you’re out” law is the most reviled sentencing policy in the country—reviled, that is, by the anti-incarceration lobby. It allows prosecutors to seek a sentence of 25 years to life against an offender who has already served time for two violent or serious felonies when he is convicted of a third felony. California legislators passed the three-strikes law in 1994 in reaction to rising crime from repeat offenders, who served short sentences before going on to victimize the public again and again. Anti-law-enforcement advocates fancifully charge that the law’s main effect is to send away hapless sad sacks whose only misstep was to succumb to the urge for a pizza when they didn’t have enough change in their pockets to buy a slice. These advocates regularly lobby Sacramento to loosen or repeal the law.

Samuel was a good candidate for a third-strike sentence, thanks to an earlier attack that foreshadowed Burk’s murder. In 1986, he walked up to an elderly man sitting on his porch in San Bernardino (in the so-called Inland Empire east of Los Angeles), grabbed the man’s cane and beat him with it, then forced him inside his home and demanded money. When the old man could only come up with ten dollars, Samuel commandeered the man’s car and drove the owner to an ATM. The terrified senior citizen was unable to withdraw any money, however, whereupon Samuel struck him with his cane again, punched him in the stomach, and threatened to kill him if he called the police, according to the Los Angeles Times. Samuel pled guilty in 1987 to robbery, residential burglary, and car theft and was sentenced to six years. He became eligible for a three-strikes sentence in 1997, following a conviction for another San Bernardino burglary (the 1986 robbery and burglary charges counted as his first two felonies). But his rap sheet failed to note that the 1986 burglary was a residential burglary, as opposed to a non-residential break-in. Only residential burglaries count as “serious” felonies for three-strikes purposes; breaking into a store, office building, or commercial space is regarded as “non-serious” and can be repeated indefinitely without triggering a three-strike step-up in sentencing. (So much for the idea that the three-strikes law is blindly draconian; in fact, it makes careful—perhaps overly careful—distinctions between felonies.)

In the 1990s, the San Bernardino County prosecutor’s office was aggressively using its three-strikes power. It would likely have sought a 25-year sentence for Samuel following his conviction for the 1997 burglary had his rap sheet correctly classified the two felonies from his 1986 assault. Whether a judge would have granted the sentence is less certain, for, contrary to advocate propaganda, judges retain sentencing discretion under the three-strikes law. Samuel could have qualified for a three-strike sentence again in 2006, following conviction for petty theft in Los Angeles. By then, however, the anti-three-strike campaign had begun affecting prosecutorial behavior. Los Angeles District Attorney Steve Cooley only seeks third-strike sentences for “serious” or violent third strikes and would not have deemed Samuel’s theft conviction “serious,” even if he had known about the prior residential burglary.

The Samuel case demonstrates just how artificial the distinctions that underlie the anti-three-strikes advocacy are, however. Someone who has already demonstrated a predilection for crime is not necessarily any less of a threat to public safety just because his latest known infraction falls below some “seriousness” threshold. The lack of impulse control manifested in a convict’s record may be just as dangerous, even if his last opportunistic crime was “mere” theft. That is not to say, of course, that every criminal with a history of violent and property crime is likely to commit murder. But it shows the value of discretionary sentencing tools, like three-strikes laws, that allow prosecutors to acknowledge the cumulative significance of a crime career in assessing a criminal’s risk.

The heart-wrenching Burk case could not have come at a worse time for anti-law-enforcement advocates. California’s budget crisis had given the anti-incarceration, anti-policing lobby new ammunition to push for cutbacks in incarceration budgets and weakened parole policies. As usual, the advocates argue that mere “technical violations” of parole should not be grounds for reincarceration, but the Samuel case reminds us that a technical violation of parole can be a sign of far worse things. Samuel’s drug-treatment facility had given him a four-hour day pass to go to a DMV office on the morning he murdered Burk. It is not known whether the facility had sought and obtained permission from Samuel’s parole agent. Rather than returning to the rehab center after arriving at the DMV office (which was closed), he continued hanging out in midtown Los Angeles. By the time he picked up Burk, he had well exceeded his four-hour time limit and may have been in violation of his parole. “Technical” parole conditions such as keeping appointments, following the clock, and staying away from drugs exist for a reason: to keep tabs on potentially explosive criminals and to foster in them self-control and conformity to positive social norms. A parolee who violates such “technical” conditions may be doing so for highly dangerous reasons.

Other budget-related prison proposals—including Governor Schwarzenegger’s plan to put an end to parole for nonviolent ex-convicts and to release 27,000 prison inmates, or a recent federal court order to release as many as 43,000 inmates—all take on dire new significance in the wake of the Lily Burk murder. To date, policing and incarceration are the only known social programs that can be shown to reduce crime; others may eventually be found, but until they are, it is folly to undermine them for fiscal or ideological reasons. California’s enormous prison costs should be reduced by radical pension reform, not by the wholesale release of prisoners. And even today, in the aftermath of the Samuel arrest, Los Angeles’s anti-cop forces continue to attack misdemeanor enforcement in high-crime areas such as Skid Row: “The LAPD doesn’t deserve any praise when it comes to the needs of the homeless,” anti-police attorney Carol Sobel told the Los Angeles Times following Bratton’s resignation announcement.

These activists are dangerously wrong. Attention to broken-windows disorder must remain a vital component of proactive policing.

Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute.

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