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Gotham Gazette

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Citizens Union

Public Safety

Crime Still Declines, But Why, And Will It Continue?


In 1993 Mayor Giuliani's first police commissioner, William Bratton, announced their determination to take back the city: "We will fight for every street. We will fight for every borough." They fought and they won. Having last month hammered down temporary crime spikes one final time, Mayor Giuliani left office triumphantly on January 1, saluting his people like an exiting Roman general.

His parting gifts included yet another record decrease in violent crime--down 12.4 percent through mid-December 2001 from last year. All categories (murder, rape, robbery, felony assault, burglary, grand larceny, and auto theft) declined, ranging from fie percent for murder to 16 percent for auto theft. In mid-December, the city had recorded 617 murders, compared with 651 through mid-December last year, and 672 for all of 2000. And despite several notorious killings, 2001 is expected to set yet another record low in police shootings of civilians.

MAYOR GLOATS

In his farewell speech, Mayor Giuliani took a moment to refute the conclusions of a March 4, 2000, New York Times story that heralded Boston's and San Diego's police strategies as "national models" for combining the crime reductions of New York with the community involvement that was lacking here. Many police chiefs and criminologists, said the Times, felt "a sense of sadness that a great opportunity has been squandered" here.

Over the last six months, said Giuliani, crime jumped 3.9 percent in San Diego while declining 7.6 percent in New York; the murder rate increased 67 percent in Boston while dropping 12 percent here. Overall Boston has 82 percent more crime and San Diego 16 percent than New York, the mayor calculated. "Which policing policy would you want to follow?" he asked. Or as the New York Post said, "It would be a crime not to gloat a little."

DO POLICE MATTER?

Exactly why so many people have stopped committing crimes remains a matter of contentious dispute, say George L. Kelling, Senior Fellow at The Manhattan Institute for Policy Research and William H. Sousa, Jr., Director of Evaluation, Police Institute, Rutgers University. In a recently released report, "Do Police Matter? An Analysis of the Impact of New York City's Police Reforms," Kelling and Sousa argue that there has been no systematic attempt to statistically parse out the relative contributions of police actions, the economy, demographics, and changing drug use patterns on crime. This they set out to do.

By measuring crime trends in individual precincts, they conclude that the decline in violent crime correlates with arrests for misdemeanors--and that for every 28 misdemeanor arrests, the city had a decline of one violent crime. In other words, they conclude that what's called "broken windows" policing--the strategy of policing minor disorderly behavior like graffiti or fare beating in the subways--is strongly associated with the decline in violent crime. They also argue that at least on a precinct-by-precinct basis there is no association with the major competing explanations for crime reduction, such as the improved economy and labor market that created opportunities for youths previously tempted by drug dealing, the declining use of crack cocaine, the changing values of at-risk youth, and the increased legitimacy of social institutions such as the family.

While commending broken windows policing, Kelling and Sousa argue that an overlooked key to New York's crime reduction rests in a specific problem-solving strategy: accurate and timely intelligence, rapid deployment, effective tactics, and relentless follow-up and assessment. Precinct commanding officers are able to address and correct current crime problems immediately by combining timely analysis with proven and innovative crime-reduction techniques, including the ability to deploy patrol, detective, and specialized precinct units for crime control, rather than having to rely on centralized special units.

BUT PROBLEMS REMAIN

Still, the new police commissioner, Ray Kelly, has his work cut out for him. As George Kelling says, "The big drops--15 percent and more--have taken place. Now we're working on the margins."

And that's not all. Despite its many achievements, the Giuliani administration has left minefields for the Bloomberg administration.

Right before Christmas Commissioner Bernard Kerik announced 227 last-minute and generous promotions in the police department. Not only do the promotions entail immediate budgetary implications, they increase the likelihood of expensive retirements since police pensions are based on the last year's salary.

Meanwhile, an organization called 100 Blacks in Law Enforcement Who Care, representing black police officers, announced it was suing the city, saying the Police Department had secretly and illegally monitored its political activities by reviewing telephone records and following members in order to intimidate officers who had been critical of the department.

A Giuliani-appointed commission, the Commission to Combat Police Corruption, found that increasing numbers of rookie cops have faced disciplinary problems. Disproportionate numbers have also been flunking out of the Police Academy--the failure rate of the September 2000 class was twice that of the 1997 class. The cause of both problems may be lower recruiting standards.

Kelling, for one, is hopeful, however. He makes three points about the future. First, if Giuliani is right--and Kelling thinks he is--he has shown that crime reduction doesn't have to be held hostage to economic change or, indeed, any holistic societal reform.

Second, in his first term as police commissioner Ray Kelly devised the plan for dealing with squeegee men that subsequently became the cornerstone of the Giuliani-Bratton assault on quality-of-life offenses. "There's every reason to assume," says Kelling, "that we're going to be fortunate in having Kelly. He will maintain, even intensify, the quality-of-life campaign."

Third, the critical policing problem is going to be balancing vigilance against terrorism with the needs of street policing. But even here Kelling is hopeful, arguing that under Commissioner Kerik the police department had started developing good relationships with neighborhoods and communities. "The same vigilance we're going to need in the frontline battle against terrorism," says Kelling, "is the vigilance that helps the police become aware of bad things happening in neighborhoods." In other words, the collaboration with neighborhoods will be crucial both to the war on crime and the war against terrorism.

And since Ray Kelly made his reputation the first time round by working well with neighborhoods, Bloomberg probably has the right man for the job.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury. 

New And Old Police Commissioner Ray Kelly


"Crime spikes," headlined the New York Post in late November. "Crime spurt," said the New York Times. Spike or spurt, crime is suddenly up. The four weeks ending Nov. 25 saw a 36.7 percent jump in shootings and a 25 percent increase in murders compared with the same period a year ago.

So even though the Giuliani administration is about to exit with yet another record yearly decline in violent crime, the last few weeks have not been good. It's clear that we're going to need a great police commissioner. Do we have him?

BEST-QUALIFIED EVER

By just about any criterion, Ray Kelly is almost surely the best-qualified police commissioner in New York City history. He had the job once before--from October 1992 until January 1994 under Mayor David Dinkins--and he was well qualified then. A former Marine colonel who had served in Vietnam, he graduated first in his class in the Police Academy in 1960, and then worked his way through 25 different commands over the next 31 years.

He went on from the NYPD commissionership to important jobs in the federal government and the private sector. He served as director of the International Police Monitors struggling to modernize the police force in the Republic of Haiti from 1994 to 1995. From 1996 to 1998 he was undersecretary for enforcement at the U.S. Treasury Department, and from 1998 to 2001 he was commissioner of the U.S. Customs Service.

Today he oversees the New York State commission that regulates boxing, and is global head of corporate security at Bear Stearns, the investment banking firm. (In accepting the police commissionership he gives up $450,000 a year in salary and generous benefits, for a job that pays a little more than a third of that.)

He has strong educational credentials--a bachelor's degree from Manhattan College, a law degree from St. John's University School of Law, a Masters in Law from New York University, and a Masters in Public Administration from Harvard.

He even looks like a cop.

So with the exception of a few churlish talk radio hosts who called him "Jelly Kelly," saying he was weak on crime--which nobody else really believes--most commentators were quick with lavish praise. Newsday's Robert Reno, for example, wrote that the choice of Kelly "was a Periclean act because there are people who regard Ray Kelly as someone as close as we come to a secular saint in this city, the man responsible for the decline in crime that has made it a more livable place, a figure who never confused histrionics with good police work and who served loyally in the Clinton administration." Pericles and sainthood in one sentence. The guy looks good.

THE FIRST TIME

Still, most New Yorkers want an answer to a simple question: How did he do the last time?

The answer is pretty well. For one thing he had a bit of luck. The national decline in both violent crime and property crime began in 1993 in the early months of his commissionership. He helped spur the decline in New York by instituting the Safe Streets, Safe City program and putting thousands more cops on the streets. (In 1990, after the shocking murder of a tourist in the subway, Mayor Dinkins got funding for an additional 6000 cops with an income tax surcharge.) Kelly believed in Broken Windows policing--taking care of minor signs of disorder so they don't become major. He initiated the campaign against the squeegee men, according to former commissioner William Bratton's biography, which subsequently became the linchpin of Giuliani's crime-fighting strategy.

Chris Stone, executive director of the Vera Institute of Justice, says every police commissioner faces a double bind. To succeed, a commissioner has to be both accountable for crime and accountable for the conduct of his officers.

Kelly staved off failure on both without fully succeeding on either the first time. In his first term, Kelly demonstrated his interest in the details of crime prevention, in particular getting the murder rate down from its 1990 mid-Dinkins administration historic high of 2,254. When Kelly left in 1994, the crime data showed 1,927 murders for the previous year. This pales before subsequent Giuliani administration achievements--including Commissioner Kerik's correct prediction last year that the city's murder rate would dip below 500--but it was a ray of hope at the time.

Kelly also staved off failure on police conduct. After a corruption scandal erupted in the Internal Affairs Bureau he successfully restructured it--or at least restructured it enough to hold critics at bay.

But this is a decade later. How is he likely to do now?

KNOWING THE NYPD

Kelly knows the NYPD well. Chris Stone recalls that Lee Brown (Kelly's predecessor as police commissioner) once said that you can't learn the department on the job. The cocoon of the commissionership is so complete that anyone who doesn't know the department already will have a very hard time getting a hold on it.

And New Yorkers want a commissioner who has hold of the department. Kelly's history has been to take charge while maintaining the loyalty of those who work for him. Paul Browne, an assistant police commissioner under Kelly who went on to work with him in Washington and Haiti, told the New York Times about his many hairy experiences alongside his chief: "You just knew he was there. He didn't, like, wait in the jeep, you know."

Kelly was a Marine before he was a cop, and Marine officers don't wait in the jeep. Marine officers stay with their men, says J. Robert Moskin, author of The U.S. Marine Corps Story. "The Marine officer," notes Moskin, "says 'follow me,' not 'go there.'" While this is the ethic of the New York Fire Department, it hasn't been the ethic of the NYPD, whose officers tend to be more of the go-there school of management. Kelly's ethic should be helpful.

A SAFE CITY

There is no mystery about what New Yorkers want. They want a safe city without ugly police-civilian incidents -- a safe city in which citizens are treated well. Will Kelly be able to deliver?

Certainly he knows how to say the right things. At the announcement of his appointment he promised: "There'll be no letup in the Police Department's aggressive suppression of crime and disorder. That means we will use proactive policing policies and practices to ensure that the law-abiding people of this city are not robbed of their sense of security by panhandlers and minor quality-of-life offenses."

But what about race?

RACE REARS ITS HEAD

As commissioner, Kelly demonstrated substantial sensitivity on racial issues, and was well-known for spending Sunday mornings travelling to black churches to recruit black NYPD candidates. Since only 10 percent of police officers today are black in a city that is 28 percent black, he is going to need that sensitivity over the next few years.

Race, however, is also the source of the one persistent criticism of Kelly--his handling, as deputy commissioner under Lee Brown, of the 1991 Crown Heights riots. A 1993 state commission investigating the riots gently criticized Kelly for not seeking "an active role" until three days after the trouble started. Cops stood by, and the higher-ups did nothing. Eventually Kelly ordered cops to take control of the Brooklyn streets, but well after enormous damage had been done. In a 1993 television interview, Kelly blamed Brown, saying the "buck stops at the top of the department." Brown should have given specific orders to commanders, he said.

Now the buck will stop with Kelly.

THE FEDERAL CREDENTIAL

Ray Kelly has federal credentials in spades, far more than has any other commissioner in history. He is going to need them as the NYPD jockeys with the FBI and the federal Department of Justice over jurisdiction. Terrorism is uppermost in everyone's mind even as low-level crime is making its way back to local streets. Cooper Union historian Fred Siegel argues, "In a time in which the distinction between war and crime has narrowed, Kelly has already worked in positions in which he had to deal with this reality. Given that we're a target in New York, it's a huge asset that he's in a good position to make a difference."

Still, says Siegel, the real test of Kelly's commissionership is likely to be local: how will he react when the first ugly racial confrontation between police officer and citizen occurs?

If he is really lucky and really good, that may not happen for a very long time.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Police Vs. Fire


The bodies of 250 firefighters still lie beneath the rubble of the World Trade Center. The sadness of the Bravest seems nearly unendurable. So when New York firefighters attacked New York cops at Ground Zero on November 2, injuring five of them, their assault was covered by newspapers and television around the world--but with restraint. The media chose to be subdued about what would have been a sensational front-page tabloid story at any other time.

But what's going on?

Firefighters had mounted a peaceful mid-morning march to protest City Hall's decision to reduce the fire, police, and emergency crew members who spot possible human remains in the debris. When the spotters identify remains, construction crews halt their work and rescue teams come in. Firefighters drape the remains in mourning and pray before carrying them out. The debris with no known remains is shipped off to the Fresh Kills Landfill on Staten Island.

You can see the problem immediately: remains that are not identified are dumped on one of the most infamous garbage heaps in the world--no mourning, no prayers, no mass. The drive of firefighters to keep that from happening to the bodies of their brothers is unrelenting. The fire union called the site sacred ground. And of course it is--New York's own Gettysburg.

City Hall had said the unstable site was dangerous. The 200 firefighters on the site were in harm's way--and impeding the clean-up. City Hall is almost surely right, but emotions are raw.

Chanting "Bring our brothers home," firefighters broke through police barriers and started fighting with cops. Cops called in reinforcements, and mounted officers and cops in riot gear appeared. The photos were shocking.

The sorrow of the times, however, should not keep city officials from pondering what this event means or its origin in earlier times.

HISTORIC ANTAGONISMS

The fire and police departments have been historic antagonists. Both are uniformed services engaged in dangerous work, though the firefighters have always held a glamour edge. Both have elite units that are sent into the most difficult situations. And both have long been over-staffed for everyday work though under-staffed for emergencies.

Indeed, the routine over-staffing of the fire department was one of the most serious management problems facing the incoming Giuliani administration in 1994. Fires of all kinds had been decreasing locally and nationally, due to a combination of technology (including sprinklers, smoke detectors and fire-resistant products), revived neighborhoods, regulation, and stringent codes. Superior prevention has forestalled much of the need for traditional fire fighting everywhere in the country. No city needed as many firefighters as before--and certainly not New York.

Mayor Giuliani could have simply closed fire houses, as many budget experts urged. But some mixture of gut instinct and a romantic attachment to the Bravest prompted him to look for other solutions. The most obvious was to find new work for firefighters to justify their numbers.

In many jurisdictions, including New York, firefighters found it in emergency services--ambulance work. The rationale was that the fire department would be in charge of rescues and emergencies, including medical ones. In February 1998, City Hall worked out a generous deal with the Uniformed Firefighters Association by which engine-company firefighters who became certified to respond to medical emergencies would earn an additional $1,500 a year.

The police union, the Patrolmen's Benevolent Association, was furious, charging that the historic police-fire pay parity had been breached by a hostile mayor. The mayor responded contemptuously that the PBA had refused all incentive discussions.

But incentive pay was not the end of the dispute.

Firefighters also argued for jurisdiction over the rescue work that had historically been handled by the police department's special services unit. They urged that the fire department be in charge of rescues, with the police having a secondary role subject to fire command.

Something close to this argument was implemented in the resolution of another bitter fire-police dispute on the scene: the protocol for police helicopter rescues drawn up by the Giuliani administration in 1994. The protocol directs police pilots to land at designated Manhattan heliports and await firefighters, who would then be flown to burning buildings. This cumbersome procedure has never actually been implemented. It may never have even been tried.

This is a shame. In many respects the protocol is a good one. The police need helicopters beyond emergency use, and therefore can manage a unit of skilled pilots and maintain a fleet. The fire department has little routine use for helicopters, and therefore cannot easily maintain a fleet. Better all around for the fire department to draw on the police in an emergency. Neither department has seemed prepared to allow that to happen.

This entire questionable scenario recently made the front page of the Wall Street Journal in a piece suggesting that the inter-agency dispute may have cost some New Yorkers their lives on September 11.

HELICOPTER RESCUES

Grandstanding. An ugly word. But that, according to a front-page Oct. 23 Wall Street Journal story, is exactly how the daring February 1993 police helicopter rescue of 28 people from the top of the World Trade Center was characterized at the time by officials of the fire department.

A bomb that exploded in the garage beneath the towers, killing 6 people and injuring 1,042, had sent smoke up through both towers. People who fled up the towers, rather than down, were successfully rescued after police helicopter crewmen chopped up roof-top antennae and broke through locked doors.

Yet instead of becoming a model for rooftop rescues, the police helicopter rescue was dismissed as dangerous and unnecessary, says the journal. The Association of Fire Chiefs harshly denounced the rescue as a "cheap publicity stunt" in a letter to the mayor.

Standard firefighting rationale is with the chiefs. Whenever possible, firefighters fight up to a fire, while always securing a line of retreat. The most dangerous fire is the one that is below the firefighter, such as a basement fire. Thus in normal firefighting experience, encouraging people to move to the roof--especially one reachable only by helicopter--is directing them in exactly the wrong direction. And the firefighters below would be concerned that a helicopter, caught in the wild updrafts of an intense fire, might itself crash, compounding the danger to anyone below.

Officials of the Port Authority of New York and New Jersey, then-owner of the World Trade Center, agreed with fire chiefs and officials not to plan for future helicopter rescues. Indeed, for security reasons the Port Authority chose to lock the two sets of heavy metal doors leading to the building's only roof exit--a violation of city building codes. As a state agency, the Port Authority is exempt from code.

Could some people have been rescued from the roof of the north tower on September 11? (The south tower held no hope. It was hidden in a 100-foot layer of dense smoke.) No one knows for sure. Fire department officials are certainly right that smoke and flames usually rise, and that people are generally best off going down rather than up. But 700 people were trapped above the 93rd floor, the point of impact where the jet hit the tower. They had no prospect of being rescued by going down.

Veteran helicopter-rescue pilots quoted by the journal say a rescue of a few dozen people would have been difficult but possible. Police helicopters hovered nearby, but were ordered away.

Fire Commissioner Thomas Van Essen called the Wall Street Journal story--and its implication that some people might have been rescued--"hurtful."

New York's refusal to plan for helicopter rescues is not unusual. Among American cities, only Los Angeles--whose fire department owns six helicopters--requires high-rise buildings to build helipads. Conventional wisdom says people are better off heading down and not up.

And conventional wisdom may well be right. But September 11 should be forcing all uniformed services to rethink their procedures. Bureaucratic wrangling is unseemly in terrible times, and both police and fire officials have been careful to refrain from criticizing one another. Yet serious issues of command and authority underlie some of the historic tensions between the two departments. The next mayor is going to have to resolve them.

A NEW FEDERAL INTEREST IN NEW YORK

Even as the police and fire departments work out their procedures, a third party looms on the horizon--the federal government. Bush administration rhetoric about downsizing and decentralizing government has disappeared as new money and powers are distributed among federal agencies. The new cabinet office of homeland security has been given enormous but vague authority to combat terrorism. The Immigration and Naturalization Service is expanding its reach and reactivating latent powers. The Federal Bureau of Investigation is asserting its authority over many investigations in New York. Federal agencies are not by nature inclined to share. The FBI garnered unwanted headlines when it failed to inform the mayor's office of the anthrax threat at NBC News, headquartered in New York.

Meanwhile, Police Commissioner Bernard Kerik set up a counterterrorism committee of federal and local law enforcement officials to strengthen security in New York. Called the New York Metropolitan Committee on Counter-Terrorism, its mandate is to enlist counterterrorism experts from Israel and Europe to help develop training programs for police officers.

That's fine, but it doesn't address the real problem: What agency is responsible for keeping us safe? That has always been the NYPD. Is it still the NYPD's job or is it the federal government's?

What seems clear is that there are far too few federal agents to carry out an effective national anti-terrorism response--and ludicrously few to fight the two-front war of bio-terrorism and bombing. It is also clear from ongoing national news stories that the FBI has not engaged local authorities in any effective cooperative effort. The NYPD remains New York's front-line of defense.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Security


As the symbolic capital of the globalized economy, New York will loom as a target of those with grievances against the new order for a long time to come. New York can do little to ease those grievances, though it can do a great deal to protect itself. But there must be a balance: Enough security to stop further attacks, but no unnecessary measures that weaken the city.

The problem is that every increment in security will come at a cost. Worse, the costs will be more than financial. They will be social and political--and will threaten to undermine the city's very being and sense of itself as free-wheeling, entrepreneurial, and invincible. New York's strategic problem will be safeguarding itself as effectively but as unobtrusively as possible.

For better or worse, it will not be alone in this crisis. Its new partner, the federal government, showed a fairly light hand in past criminal events, treating the city and its police department with the respect normally due a sovereign. While touring the ruins of the World Trade Center President Bush seemed to defer to Mayor Giuliani as guest to host.

SEPTEMBER 11 CHANGED EVERYTHING

But the days of federal deference to New York may be over. A safe America requires a safe New York--no president can permit New York to remain an island. Will this be good or bad for New Yorkers? The answer will depend in part on how strong the next police commissioner is, how capably he leads his department, and how effectively he negotiates with federal agencies like the Federal Bureau of Investigation and the Department of Justice.

No one thinks that the FBI, based in Washington with a staff drawn from around the country, can direct security in New York better than the New York police. But the bombing of the Trade Center shows that ensuring New York's safety cannot be an exclusively local function. The FBI and the New York Police Department will have to work these matters through--and it probably won't be pretty.

Thus the NYPD commissionership may become the most important job in New York. Luckily for him, the next commissioner will start with a revitalized department. Today the New York Police Department stands strong, resilient and respected. Most pre-September 11 arguments about police issues--even serious ones like racial profiling--now seem petty and distant, as if that was a different department in a different city. In these days of crisis, the police have performed heroically and professionally. They have been on duty round the clock, a reassuring, protective presence.

As fire Captain Kennenth Erb told Larry King, "They had a recall for all police officers and fire officers as soon as the news struck. And we all, one way or the other, got in, through hitchhiking, get in your car or whatever." Crime was down 34 percent last week over the same week last year--a tribute to the cops and perhaps to some decency even among criminals.

At least 23 police officers are missing, most from the elite Emergency Service Unit. All were (presumed) killed while trying to rescue others.

THE RECRUITMENT CRISIS IS PROBABLY OVER

One practical consequence will be the end of the police department's recruitment crisis. The department's recruitment poster that had offered a "career of heroism and public service" now rings true.

Here's the background. While the department had been trying to maintain a head count of 41,440 officers, its numbers had fallen to about 39,800 in August. Part of the problem was retirement. About 3,000 cops were expected to retire this year, or about a third more than last year. That number may now shrink.

But the other part of the problem had been the department's unsuccessful recruitment efforts. It did not fill its last graduating class at the Police Academy in September 2000, and had been unlikely to fill this year's class despite strenuous recruiting efforts and incentives, like eliminating the $35 fee for the civil service exam.

In a New York Times op-ed former Police Commissioner William Bratton summarized the problem in a national context: "From Los Angeles to New York City, from Cincinnati to Miami, many of the nation's police forces face intense scrutiny and criticism for corruption, racial profiling, racial insensitivity, brutality, unresponsiveness to community concerns and professional incompetence." Declining public respect for cops, justified or unjustified, was taking its toll.

Bratton went on to say that the causes of the recruitment crisis, "both at the entry level and at the top of the profession," were fairly clear. Starting pay is relatively low. (New York City's is $31,305.) Policing is less a family tradition than it was a generation ago. Young people have little appreciation of the complexity and variety of police work.

Much of this will change for the better. City officials had been prepared to raise police pay substantially, and public opinion will agree. The complexity and variety of police work has been on display for all to see--and the police department is likely to have its pick of excellent young recruits for the first time in years.

BUT A FULL-BLOWN SECURITY CRISIS IS NOW HERE

The police department--and to some extent New Yorkers--will have to think through the right balance of security and efficiency in everyday life.

The public had already become accustomed to the measures deterring the common thug--metal detectors, photo IDs, bag searches, checks of electronic equipment. The devices are often primitive and the training of the personnel poor, but routine security checks prevent at least some crime and perhaps some terrorism. At their most effective, such as in the eight New York criminal courthouses, they prevent a lot of crime. In a Labor Day piece, the New York Times said the 631 criminal court officers had confiscated a "staggering collection of 20 boxes of weapons" this year alone. Violent incidents in the courthouses are few--and not for want of trying by criminals.

The future, however, lies with high-tech solutions that are independent of human judgment, such as the X-ray machines that reveal weapons. The cutting-edge versions do so at a distance.

Accustomed as they may be to routine security lines, New Yorkers are far less comfortable with what the security trade calls Israeli tactics--traffic-stopping checkpoints, intrusive questioning, random identification checks, intimate searches, and racial profiling. These are ostensibly meant to deter crime, but they are also meant to remind the public often and aggressively of the presence of terrorists and to get the public to accept the authority of the police and military. The inconvenience that accompanies these tactics is deliberate.

Daniel Williams recently gave an excellent summary in the Washington Post of how this routinely works in Jerusalem and the surrounding countryside: "Control-through-engineering has become a major activity under Israeli Prime Minister Ariel Sharon. Soldiers periodically cut off large towns from one another. Commerce comes to a virtual standstill. Even when traffic is permitted, the wait to get in and out of major urban centers can be time-consuming. Not only do the Israeli soldiers generally provide only one exit from town, they also keep military inspectors to a minimum, so vehicles pass only one by one."

Former Police Commissioner Safir actually introduced a few of these ideas to New York, and Commissioner Kerik has continued them. Traffic-stopping checkpoints ostensibly for drunk-driving or seat-belt use were first used in Upper Manhattan and minority neighborhoods. After an outcry about racial profiling, Safir expanded the checkpoints to Manhattan neighborhoods below 96th Street.

The pedestrian-controlling concrete barriers introduced by Mayor Giuliani and Commissioner Safir in 1998 also represent an Israeli tactic, a re-engineering to encourage people to go only where they are directed and to accustom the public to accepting restrictions on their movements.

Were these Israeli tactics introduced by the city because they appealed to Mayor Giuliani's sense of order, or because the city had been alerted by Washington about serious terrorist threats? No one is saying, although former commissioner Bratton said on television that there had been two serious unreported terrorist threats during his term.

The most important question among all these tactics is, however, what works?

NEW YORK IS NOT AN ISLAND

Much as it will seek to protect itself, New York will only be safe insofar as others protect it as well. The plane that flew into the World Trade Center took off from Logan Airport in Boston, an airport that the Federal Aviation Administration has repeatedly cited for safety violations.

Everyone wants whatever went wrong at Logan Airport in Boston fixed. But what was it that failed? And will the FAA's new proposals and restrictions on passengers work?

Arthur Wolk, an aviation safety expert, argues that the new FAA rules, such as the ban on steak knives in first class or the abolition of curbside checking, are ineffective and would have in no way prevented the hijackings. He proposes instead that sky marshals fly on most flights, that pilots be armed--most are former military officers--and that flight attendants be trained in martial arts.

Mary Schiavo, former inspector general for the U.S. Department of Transportation, argues that aviation security is a law enforcement function, and belongs with a law enforcement agency, not the FAA. Law enforcement officials would be far less ready to listen to concerns about the weight of new cockpit doors (additional weight would affect the cost of every flight), or the extra costs of sky marshals or deputized pilots.

New York has an acute interest in these issues, and in all matters having to do with its air space. All but three private helicopters have been grounded, and those three have been given mandated flight plans. The FAA's previous ridiculous policy of refusing to regulate helicopters and small planes over New York has been reversed.

GOOD NEIGHBORS PRODUCES GOOD SECURITY

New York can do little about Third World grievances but it can and should protect its Arab-American residents with a full police presence. Attacks on Lebanese stores on Atlantic Avenue are not only despicable, some of the attackers have been in this country for a far shorter time than the owners of, say, Sahadi's, who are on their third generation. As James Zogby, president of the Arab American Institute, said: "We are in the midst of a national nightmare of unimaginable proportions." Arab-Americans were among those killed in the Trade Center.

Arab-Americans should feel as fully welcome as the many groups that have come before them. This crisis will only be eased by the help of Arabic-speaking Americans using their language and contacts in the Arab world to track down terrorists and set the world back on course. This is not a time to drive loyal Arab-Americans away. New Yorkers should patronize Arab businesses as they always have, including the restaurants that now stand empty, showing support for decent, hard-working immigrants who came here for a better life. It's the New York way.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Jailing Demonstrators. Also: Police-Community Relations


Protesters arrested for minor offenses will no longer be held overnight in jail, the Police Department informed Judge William Pauley III of the U.S. District Court in Manhattan in mid-July. This is excellent news. Let's back up.

After the killing of Amadou Diallo--the young, unarmed, African street vendor--by four police officers on February 4, 1999, thousands of New Yorkers poured into the streets of Lower Manhattan to protest what some saw as police brutality and others as police incompetence. Hundreds were arrested for minor offenses--disorderly conduct, obstructing government, disobeying an order to disperse.

The Police Department followed its time-honored procedures in arresting and releasing demonstrators. Those who showed identification and who had no other criminal complication--such as drugs, weapons, or outstanding warrants--were given desk appearance tickets (DATs). DATs are routinely issued to minor offenders to ensure their appearance in court on a specified date, while allowing them to go home in the meantime.

DATs make eminent sense. An arrest is not a punishment, just as the police are not judge and jury. The sole point of an arrest is to secure the appearance of the person before a judge. Those arrested on minor charges are usually jailed only if the police fear flight or violence.

During the Diallo demonstrations, then-Police Commissioner Howard Safir decided that protesters should be jailed rather than released. The police began to hold demonstrators for a few hours in the precinct, and then transfer them to a central booking facility. Here they were held--usually overnight--until arraigned before a judge. Judges routinely dismissed almost all charges.

Until May 1, this policy of jailing some demonstrators had been informally enforced. On May 1, for reasons that "remain unclear," according to the New York Times, the Chief of Department (the NYPD's highest-ranking uniformed officer) formalized the policy. He issued a directive forbidding desk appearance tickets for offenses committed at demonstrations of 20 people or more. All demonstrators, he ordered, were to be, in police terminology, "processed on-line," meaning detained for arraignment. You and I would call it jailed.

Daniel Connolly, the lawyer in charge of this for the city's Corporation Counsel, defended the new police policy. He argued that the policy was intended to discourage crime and to process offenders (i.e., protesters) efficiently. In a June interview Connolly said, "The police department has many exceptions in which desk appearance tickets are not given--in cases of assault, for example, or cases involving alcohol, or when people are from out of town. No DATs. This is just another exception."

Connolly also mentioned what he called "the recidivist threat," the problem that demonstrators committed to civil disobedience will reappear at the rally if they are released with a desk appearance ticket. Meanwhile, minor offenses committed by anyone but demonstrators--littering, for example, or walking a dog off leash--would still generally be handled with desk appearance tickets. Only demonstrators were to be jailed.

This, of course, raised serious constitutional issues, as the New York Civil Liberties Union argued in a law suit in federal court. NYCLU lawyer Christopher Dunn argued that "singling out demonstrators to be `put through the system' specifically retaliates against citizens exercising their First and Fourth Amendment rights." The point of the arrests was to remove people from the scene of constitutionally protected political activity.

From the nation's founding forward, American courts have had to grapple with balancing the people's right to peace and order with rights of free speech and assembly. Disturbances of the peace that involve noisy parties or public vandalism present no constitutional problems. But disturbances that result from what people say or from public demonstrations quickly invoke the constitutional guarantees of freedom of speech and freedom of assembly.

During the 1960s the Supreme Court became increasingly reluctant to permit local police to forbid or halt civil rights demonstrations. As Justice Potter Stewart wrote in 1963, the state may not "make criminal the peaceful expression of unpopular views." The court has cast a cold eye ever since on local regulations that threaten freedom of speech and the right to assembly.

While the government may, under its police power, legitimately regulate the "Time, Place, and Manner" of demonstrations, it may not use the guise of regulation to interfere unduly with the people's right to assemble. In practice, this is a difficult area, requiring good judgment and sensitivity from local officials.

New York often lacks both. The problem is that the people wishing to exercise their right to assemble and demonstrate mainly wish to protest against Mayor Rudolph Giuliani and his Police Department--the very officials asserting the right to jail the protesters. Do protesters often embarrass the mayor and the police? Yes, but that is their constitutional right.

In July the Police Department and the Corporation Counsel decided to back off jailing protesters overnight. Some sense of balance and order has been restored.

Desk appearance tickets served the people and the police of the City of New York well for years--and now they will again. Jailing protesters on minor--sometimes trumped-up--charges before they see a judge has been consigned to a brief, unfortunate moment in the dustbin of New York City history.

Commissioner Kerik and the Police Department can return to what they do best: fighting real crime, not legitimate protest.

A PROPOSAL FOR POLICE-COMMUNITY RELATIONS

After a few months in office, police commissioner Bernard Kerik announced in January that one of his top priorities would be improving police-community relations. High-ranking officers would attend community meetings in person, precincts would be more welcoming to the public, officers on the street would be encouraged to be polite and attentive.

A report by the Citizens Crime Commission, which calls itself an independent criminal justice research organization, concludes that the police department is not yet courteous enough for many New Yorkers--even though the vast majority feel safe in their neighborhoods. Indeed, 91 percent of the 834 New Yorkers surveyed from October 2000 through February 2001 said they feel safe in their neighborhoods during the day, 77 percent feel safe at night, and 84 percent regard their neighborhoods as safer than a year ago.

But the problem of race continues to raise its ugly head: 67 percent of surveyed New Yorkers said that the police were tougher on blacks than on whites, and 59 percent said that brutality was a serious problem in the department.

Meanwhile, civilian complaints against the police jumped 12 percent in the first six months of 2001, according to the Civilian Complaint Review Board. It logged 2,418 complaints through June 30, or 264 more than in the six months last year. Charges of abuse of authority were up 12 percent, and charges of excessive force up 9 percent.

The Citizens Crime Commission has a suggestion. They believe that CompStat, the police department's renowned computerized crime-tracking system, could be "helpful in breaking down divisions between police and citizens." They urge the department to begin an "expanded information-sharing effort" with neighborhoods to provide crime data while enlisting the help of residents in planning crime-fighting strategies that would be both effective and "not offensive to the community." Worth a try perhaps.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Law Guardians for Children


Late last month the war between Mayor Rudy Giuliani and his estranged wife Donna Hanover became a battle for the children. With the couple unable to agree on custody or when to introduce Andrew, 15, and Caroline, 11, to Giuliani's friend Judy Nathan, Acting Manhattan Supreme Court Justice Judith Gische decided the two children needed their own representative. She appointed a law guardian.

Law guardians, who have existed in Family Court since 1962 and in Supreme Court since 1990, can offset the mudslinging and focus attention on the child. However, some critics say there is a vagueness surrounding law guardians in custody disputes, and believe the system of law guardianship needs reform. "The guardian is just one more powerful adult with whose judgment the child may or may not agree," said Andrew Schepard, a professor at Hofstra University School of Law.

"We are constantly debating the issue of substitution of judgment," said Bruce Carpenter, an 11-year veteran of Legal Aid's Juvenile Rights Division who specializes in delinquency cases. He said there is a general trend toward representing the wishes of the child client, but there are cases in the "gray zone" where it might be better to substitute the adult attorney's judgment. "How, as adults, do we define our role?"

In one oft-cited case (Koppenhoeffer v. Koppenhoeffer from 1990), the law guardian was defined as someone who "may act as champion of the child's best interest, as advocate for the child's preference, as investigator seeking truth in controverted issues, or may serve to recommend alternatives for the court's consideration."

New York is unique in the nation in its law guardian system, which combines two essential -- and often conflicting -- functions: guardian and attorney. A traditional guardian, who need not be an attorney, is appointed to provide the court information about a client who is viewed as legally incompetent. Children under six are typically considered to be legally incompetent. A guardian is bound to protect a child's best interests, even if it is at odds with what the child says. In contrast, an attorney for a child acts as an advocate, just as he would with an adult. An advocate must respect the client's judgment and wishes, even if he does not agree.

Legal scholars and practitioners are disturbed by the many "gray areas" of law guardianship, which they warn casts a haze over the entire field. "Identical children receive different kinds of service depending on the individual appointee's conception of the role," said Schepard, who also edits the "Family Court Review." The very ambiguity of the term law guardian, said Schepard, reflects "ambivalence about the role children should play in determining custody disputes between their parents."

The question is whether children are objects or subjects of dispute. In the Giuliani divorce case, the judge selected as law guardian for Caroline and Andrew Giuliani an attorney named Jo Ann Douglas, who had just finished serving as law guardian for the child of Revlon chief Ron Perelman and Democratic fundraiser Patricia Duff in their high-profile divorce. Douglas is known to respect the individuality and judgment of her clients. "We come to positions just like grown-ups do with their lawyers," she said. Her job is not to assume the role of the court and decide between the parents, but to look after the children when their parents are so blinded by their own problems that they cannot see their children's point of view.

 

Police Potpourri: Murder, Drag Racing Down; Mayor's Dander Up; Desk Appearance Tickets Disappear; Council Speaker Swept In A Sweep; Condor Defended


MURDER RATE PLUNGES

June held a triumphant announcement: The city's murder rate had fallen 13 percent over the first six months of the year. The police department had logged 289 murders through June 24--or 46 fewer than in the first six months of 2000. Were this rate to continue, the city would experience 581 murders by year end--far fewer than last year's 673.

But the triumph was marred by an earlier outbreak of harsh mayoral behavior. In late May Police Commissioner Bernard Kerik had told Jack Newfield, then a columnist for the New York Post, that he intended to keep city murders to under 600 - a number not seen since 1963 during Mayor Robert Wagner's administration.

Kerik backed up his prediction with what seemed to be a sensible strategy: He was going to stick to basics, go after violent felons with outstanding warrants, focus on gangs, get guns off the streets, and fine-tune the department's assault on drugs.

Fine. Then Mayor Giuliani issued a reprimand so harsh that it even attracted the attention of the Times of London. A goal of under 600 was "very highly unrealistic," said Giuliani, his annoyance reflected--as it often is--in bad syntax.

The month's figures show that murders have continued along Kerik's predicted downward slope.

CONDOR DEFENDED

It wasn't just the murder rate that plummeted, important as that is. Reported rapes over the first six months of the year were down five percent, felony assault down eight percent, robbery down 15 percent, and burglary 17 percent.

The largest single decline in any category was in car theft, which fell 18 percent. Some 3,000 car owners did not have their cars stolen in the first half of the year.

The Daily News chose to combine these figures with comments from Harvard criminologist George Kelling in support of Operation Condor, the undercover program aimed at violent drug activity. Because Condor costs the city millions of dollars in overtime, it is financially controversial as well as politically volatile. Kelling warned that the next mayor and police commissioner should be careful about dumping Condor or tinkering with it, since it is not broken.

Condor, combined with near zero-tolerance policing, will be ongoing issues for the city. Whether emphasizing the stick of punishment or the carrot of safer, better living conditions, the idea behind the city's aggressive policing strategy is that police confront citizens they suspect of even minor wrongdoing. This is politically dangerous territory.

What's more, for most of the last few years the Giuliani administration has been ratcheting up the consequences of being caught in "minor wrongdoing."

At a recent mayoral forum sponsored by the Century Foundation, former corrections commissioner Michael Jacobson pointed out that misdemeanor arrests went from 130,000 in 1993 to 215,000 in 1998. Even more serious, the police practice of releasing minor offenders with desk appearance tickets--permitting them to go home while requiring their appearance at a later date before a judge--is gradually being discontinued. Some 43 percent of minor offenders were held for arraignment--jailed--for 24 to 48 hours in 1993. In 1998, 85 percent were held.

SWEEPS TRAP CITY COUNCIL SPEAKER

One increasingly common way for middle-class New Yorkers to encounter their police is via "sweeps," by which the police target and barricade some discrete area and check every vehicle for minor infractions. The resulting traffic jams are often horrendous. Even prominent officials can find themselves swept.

City Council Speaker Peter Vallone had trouble making it to the Manhattan Institute's conference last week on "New York at the Crossroads." On the way into Manhattan, he found that "all the traffic coming in from Queens bottled up to France" because the cops at the Midtown Tunnel were checking for seat belts violations. "The Midtown Tunnel," he said. "How busy is it?"

Richard Brookhiser of the New York Observer pointed out that Vallone was blasting "the policy of stop-and-frisk," though "in a very old-ethnic Queens fashion." He suggested that young black males "suffered the same frustrations as harried outer-borough commuters," wrote Brookhiser.

DRAG RACING CURTAILED

Shortly after the New York papers carried lead stories on the fatal drag-racing accident on Long Island, Newsday ran a piece saying that organized drag racing at longtime trouble zones in Queens seems to have been ended. Newsday quoted a young man who said, "They have all sorts of roadblocks now, and they've timed the lights so you can't race anymore." The success is attributed to a crackdown called "Operation Hermes," run jointly by the police department's 107th Precinct and the office of Queens district attorney.

Since its start in June 1999, Operation Hermes has arrested 53 people and seized 33 cars--which seems like an astonishingly high number. Newsday cited police officers who credited the department's "zero-tolerance assault on reckless and drunken driving."

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Marijuana


This has been the month of marijuana. Many New Yorkers are wondering whether their city has gotten trapped in some deadly new form of Reefer Madness. On May 10, five people were shot--three killed and two badly wounded--in an apartment above the Carnegie Deli in midtown. It looked initially like a drug deal gone bad because the apartment's tenant, Jennifer Stahl, had dealt in high-grade marijuana. (The shooting later turned out to be more of a music deal gone bad.) The New York Times said that six pounds of marijuana, worth roughly $10,000 per pound, were found in the apartment.

This astonishing market price reflects both the new potency of marijuana--not your grandmother's mild weed of the sixties--and the value produced by the federal government's 30-year war on drugs.

Michael Massing, author of The Fix, a history of U.S. drug policy since the 1960s, points out that marijuana is the only major illegal drug to have soared in price over the last few years--mainly as a result of interdiction, the term commonly used for the efforts by law enforcement agencies to catch people trafficking in drugs. "Interdiction has had the effect of making the marijuana trade far more violent than it had been," he says. "The old distinction between hard trade and marijuana no longer exists." You used to get marijuana from people you knew, he adds.

Indeed, several news accounts emphasized how cautious Stahl had been as a dealer--selling only to people she knew. She was almost surely murdered by an acquaintance. She had called the shooter by the name "Sean."

A recently installed video camera caught two men on tape, leading the police to identify two suspects quickly. The one named Sean is thought to have fled to the South, perhaps Georgia; the other, Andre Smith, was arrested in New Jersey. Smith's arrest has returned the issue of parole to the public eye.

A May 23 New York Times headline put parole up front: "New Jersey Parolee Is Arrested in Killings of 3 Above Carnegie Deli." While out on parole three months earlier for violent robbery, Smith had been arrested on charges of possessing 311 grams of marijuana near an Irvington, New Jersey, public school. But New Jersey officials failed to revoke his parole--or warn New York officials of the arrest.

"He should not have been out," Police Commissioner Bernard B. Kerik said at a press conference. "He should have been violated," he added, using the odd criminal justice term for returning to prison those who violate the provisions of their parole.

Praising the wisdom of New York State's elimination of parole for violent felons--a move he had spearheaded--Gov. George Pataki said the Smith case proved his old campaign point: "We had revolving-door justice for too long in this state."

MEDICAL MARIJUANA BANNED

Meanwhile, marijuana for medical purposes had taken front and center on the national stage.

In U.S. v. Oakland Cannabis Buyers' Cooperative, the Supreme Court ruled unanimously that federal law does not allow a "medical necessity" exception to the Congressional prohibition on the distribution of marijuana. Under the Controlled Substances Act of 1970, Congress listed marijuana as a "Schedule I" drug, meaning that it "has no currently accepted medical use in treatment in the United States." Growing, using, selling, or distributing marijuana is therefore a federal criminal offense.

Federal law notwithstanding, eight states have decriminalized medical marijuana. In 1996, a California plebiscite authorized the use of marijuana under medical prescription. Several systems of providing medical marijuana then developed, including buyers' cooperatives headed by physicians.

This did not sit well with the Clinton Justice Department, which sued to enjoin distribution in Oakland. That is, the Justice Department requested an injunction to stop distribution rather than bringing criminal charges to punish distribution--though it contended this was a criminal offense. Why an injunction? Because criminal charges would have required a jury trial. The Justice Department knew full well that it almost surely could not have found a California jury willing to convict the Oakland Cooperative of illegal distribution or the sick patients of illegal use of marijuana.

Will the Bush Administration follow Clinton's hard line on marijuana? The day the Oakland decision came down, Justice John Paul Stevens pointed out that as a presidential candidate Bush had supported state self-determination on medical marijuana use.

Yet President Bush has chosen a hard-liner as his drug czar. As the Los Angeles Times recently noted, Bush's drug czar nominee, John P. Walters, told Congress in 1996 that it should yank all prescription privileges from doctors who recommend medical marijuana for their patients--about as rigid a line as one can draw.

Michael Massing calls all this "discouraging to everyone who follows the issue." He says that people in the field are looking to any branch of government at any level to bring reasonableness to this issue, which has been surrounded by hysteria. Research, both systematic and anecdotal, has shown repeatedly that smoking marijuana helps some patients.

Even the august and conservative New England Journal of Medicine has editorialized in support of medical marijuana.

Decriminalizing marijuana would reduce its market value--and accompanying street violence--substantially. Massing would like to see marijuana's non-medical use remain illegal, but as a misdemeanor punishable by a fine, like a speeding ticket.

This view has substantial support in New York. Richard N. Gottfried, chairman of the New York State Assembly Committee on Health, wrote an op-ed in the May 16 Newsday attacking the Supreme Court decision as "bad law for patients' rights." Citing a 1990 survey reported in the Journal of the American Medical Association, which found that 44 percent of oncologists said they had suggested that a patient smoke marijuana for relief of nausea induced by chemotherapy, Gottfried urged passage of his Medical Use of Marijuana bill. The bill would allow physician-supervised use of marijuana in treating patients with serious illnesses.

Supreme Court decision or no, the use of medical marijuana, particularly by seriously ill patients, will continue all over the country. The only question is: how will the Bush Administration's Justice Department respond?

YET ANOTHER SHOOTING OF AN UNARMED BLACK MAN

A more routine use of marijuana is involved in the Bronx trial of Mark Conway, the New York City undercover police officer accused of third-degree assault in the shooting of a fleeing unarmed teenager, Dantae Johnson, in May 1999. Johnson had fled Conway in part because he and a friend had just been smoking a joint--and because he had been wrongly arrested less than a month earlier. "I was scared," he testified. "I was trying to go home."

The New York Times drew explicit comparisons between this shooting and the killing of Amadou Diallo, also unarmed and black, four months earlier in February 1999. Like the officers who killed Amadou Diallo, Officer Conway is white and a member of the Street Crimes Unit. Like them, he wrongly believed his shooting victim to have a gun.

Amy Waldman in the Times zeroed in on what she called "yet another echo of the Diallo trial." This was the testimony of Officer Conway's supervisor, Lt. Kevin Cantwell, who had also been the supervisor of the Diallo officers. As in the Diallo trial, he took the stand for the prosecution--only to give testimony that was helpful to the defense.

In Conway's trial, Lt. Cantwell testified that on arriving at the scene, he found Johnson on the ground. He authorized charging him with possession of a loaded weapon and robbery. No weapon was ever found, nor did any evidence of a robbery appear. The charges were dropped.

Because Lt. Cantwell insisted he could not remember who had given him the information that led him to authorize the charges, wrote Waldman, his memory lapse could be helpful to Conway in suggesting that he was not the one trying to manufacture evidence.

There is another comparison between the Diallo officers and this case that the Times chose not to draw explicitly: all officers evaded a trial by jury in the Bronx. The Diallo officers were tried by a jury in Albany. Officer Conway is being tried by a judge in the Bronx.

TRIAL BY JUDGE

Thus we have yet another distressing criminal trial of a New York City Police officer presided over by a judge with no jury.

A bench trial--trial by a judge alone--is a defendant's right under New York State law. But the existence of such a right raises the troubling issue of just what the U.S. constitutional right to a jury trial means in this state.

Officer Conway is following the path of most cops accused of similar crimes committed on duty before him.

Bench trials of cops have happened many times before and will happen many times in the future because New York has an unusual statute that allows defendants to "waive" their right to a jury trial and "consent" to a bench trial. The Court of Appeals has ruled that courts have almost no discretion to deny a waiver.

In effect, a defendant can demand a judge-only trial even over the protest of the prosecutor and the reluctance of the trial court.

The Bronx has seen an unusual number of bench trials. Indeed, since 1977 when Police Officer Thomas Ryan was convicted by a jury of fatally beating a 25-year-old burglary suspect, only one police officer charged with a civilian death in the Bronx has chosen a jury trial. Francis Livoti, who was acquitted in a bench trial of killing Anthony Baez, is the most recent and best known example of an officer evading a jury trial. (The legal term is "waive," but such usage defies common sense.)

Private citizens can demand a bench trial too, of course, although they exercise the option less often than police officers. Over the past 10 years in the Bronx, for example, defendants have chosen bench trials in only 19 percent of all criminal cases.

At the federal level, however, a defendant cannot similarly avoid a jury. Under federal criminal procedure, a defendant can waive trial by jury only with "the approval of the court and the consent of the government," a principle upheld by the Supreme Court in Singer v. United States.

As Chief Justice Earl Warren noted in that decision, a defendant's "only constitutional right concerning the method of trial is to an impartial trial by jury." There exists no parallel right to avoid a trial by jury.

Nearly all the states have procedures compatible with the federal system. New York, as one of the rare exceptions, is out of step with its fellow sovereign states, its own citizens and the nation's founding principles.

The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.

The jury trial is the right of every American--and the right of every American community, including the Bronx.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Neighbors and Nightclubs


When a recent argument inside the nightclub Tunnel in Chelsea spilled out onto the street, a 16-year old wound up fatally stabbed and another teen was shot. It was just another incident in a long line of troubles for the nightclub. In the last few years at Tunnel, an 18-year-old died of a drug overdose, another club-goer was shot and killed, and city officials have repeatedly accused the disco of promoting drugs, selling alcohol to minors, and evading taxes.

For Maria Garcia, who lives a few blocks away, the latest stabbing and shooting resulted in another sleepless night because of a neighborhood disco.

"There were police cars, people on the street, and ambulances," said Garcia. "It kept us up all night. We did not know what it was, but we knew it was something big."

Noise, drunken club-goers, litter, drug use, and violence are common occurrences because of nightclubs, Garcia says. "With several clubs all within a few blocks, we literally have thousands of people coming out of clubs between 2 and 4 o'clock in the morning, every day of the week."

As the head of a group called Chelsea Owners and Tenants for Neighborhood Preservation, Garcia is engaged in ongoing battles to get area nightspots like Twilo, Roxy, Limelight, and the Tunnel to be responsible neighbors. She also tries to keep new clubs from opening.

And, at least part of the time, she is successful. Recently, Garcia and her neighborhood organization stalled the efforts of two clubs, Tambourine on West 23rd Street and High Altitude on West 19th Street. While Garcia said the two victories were not the norm, they point to the growing power of residents in the ongoing battles between community groups and nightclubs, with city officials in-between.

Club owners claim they are often treated unfairly by the city, raided by the police, required to undergo a rigorous and expensive process of gaining permits, subjected to unfair expectations from the public and press.

What To Do If Your Neighbor Is A Noisy Nightclub

Persistence is the key to dealing with noise, crowds, and other problems that may result from a disco in your neighborhood. But knowing whom to call will also save time, since different city agencies handle different problems.

First, see if others have complained before you. Local community groups may have already taken up the cause. Tenant.net is a good resource for many neighborhood issues and may provide information about what is going on in your area.

Second, it is best at least to make an attempt to contact a club directly, because the establishment may be accommodating. Filing an official complaint with a government agency before voicing concerns to the club may make it more difficult to reach a solution in the end.

When you decide it is time to get the city involved, the first official stop is the Department of Environmental Protection, which handles complaints about noise from nightclubs and outside speaker systems. The general complaint phone number is 718 DEP-HELP (337-4357). The city also has a special quality of life hotline at 888-677-5433.

The local police precinct handles noisy neighbors, boom boxes, noise outside of bars and clubs, and the general loudmouth who passes by your window at 2 a.m.

Community Boards are the place to air grievances about general neighborhood issues, liquor licenses, and new clubs. You can always take it one step further and notify your city councilmember.

The final step is the State Liquor Authority, which considers community response when it considers applications from establishments that want to sell alcohol. Recommendations from community boards and letters from elected officials do influence the decisions. The city office for the State Liquor Authority can be reached at 212-417-4002.

"You are probably safer inside a club than in a school or on the street because of the measures most owners take," said Andrew Rasiej, president of the New York Nightlife Association, a coalition of club owners and music industry professionals.

Some argue that unlike Miami, a city that welcomes nightclubs as a vital part of its image and economy, New York is turning its back on the nightlife that helped make its name.

"If you look up dancing on the city's visitors website, all you get is ballet," said Rasiej.

In fact, the official New York visitor's website does offer some other options, but the lounge of the Marriott on Times Square (the website's top suggestion) is probably not what most have in mind when they want to experience the "city that never sleeps."

PROBLEMS BEHIND THE VELVET ROPE

At 11 p.m. on a Thursday, women in backless tops and platform heels and men in tight silky shirts stand outside the Cheeta nightclub on West 21st Street. They line up along a velvet rope, some shivering in a light drizzling rain, hoping that sometime soon they can convince the doorman that they are indeed on the guest list. The thumping bass of the electronic music inside booms out onto the street. The line is constant for the next few hours, the doormen allowing in a few parties at a time to keep up the appearance that this is such a fashionable place to be; how could it not be, if people are willing to wait in the rain to get in?

"I go out about three, sometimes four nights a week," said Ana Tallow, a 22-year-old student who has been waiting on line for 20 minutes. "It is just about going out and being with my friends."

By 2 a.m. patrons begin to flow out of the club, some staggering and laughing loudly. They whistle for double-parked taxis; the taxis honk back. This scene is a nightly occurrence, just part of what is expected outside of a club. But traffic and noise are just the beginning.

Last year, St. Vincent's hospital in Manhattan notified authorities of an increasing number of people who had overdosed on drugs and arrived in the emergency room via private ambulances. Several nightclubs, it turns out, keep ambulances on a kind of retainer, parked outside their door. The hospital reported treating four to five nightclub overdoses a night, twice as many as before. The medical emergencies are from relatively new drugs like the psychedelic Ecstasy, which can lead to dehydration, and the mixture of alcohol and GHB, commonly known as a date rape drug. Since 1994, the national number of medical emergencies from Ecstasy has increased ten times.

THE PLAYERS AND THE LAWS

New York Nightlife Association - A coalition of music companies and club owners that would like the city to look more favorably on the nightclub industry.

Social Club Task Force - Building and Health Departments officials, Fire Marshall, and Police Department who make inspections.

State Liquor Authority - Issues liquor licenses to New York establishments. Many in the city, including Queens Borough President, Claire Shulman do not think the state authority is responsive enough to city issues. Shulman has proposed a bill to create a City Liquor Authority.

Department of Buildings - Issues certificate of occupancy for clubs.

Department of Consumer Affairs - Issues cabaret licenses for dancing.

Community Boards - Neighborhood government bodies hold public hearings and can vote to reject liquor license applications.

Nuisance Abatement Law - Three arrests at a club means it can be shut down.

Padavan Law - Named after one of its sponsors, Senator Frank Padavan, the law gives local communities a right to have their views expressed on certain liquor license applications. It does not give Community Boards the right to give the final rejection of an application, only to weigh in with their concerns.

"Sure Ecstasy is a problem in some places. Sometimes as soon as you walk into a place, there is someone right there trying to sell you something," said Tallow, the student and club regular. "But clubs also get too much blame. People make their choices to find what they want. It is not necessarily the clubs' fault."

Two of the clubs that hires ambulances--Twilo and Roxy -- said the private ambulances are for the protection of their patrons.

"When people go down [from GHB], 911 is useless," said Jason McCarthy, the general manager of the Roxy in a recent New York Times article. "I do this to protect my clients who go into cardiac arrest."

Twilo, in particular, has had drug problems. Last summer, a medical student passed out on a dance floor and died. And two club-goers are suing the club alleging that employees hid them in a backroom when they overdosed so that police would not find out.

"We are blamed for everything and we are never given the benefit of the doubt," said Peter R. Sullivan, Twilo's lawyer. "The reason we are still open is because we have been able to prove to the courts that we are the safest club in New York."

The clubs also say they have asked for help from the police in fighting the drugs, but received no assistance.

High profile cases of guns and violence at clubs, particularly involving famous hip-hop stars, have also created negative perception. Last year1s shooting at Club New York that put rap stars Sean "Puffy" Combs and Jamal "Shyne" Barrow on trial produced daily news stories for months. Just weeks ago, rapper Jay-Z was charged with concealing a weapon outside the club Exit.

Such cases have apparently inspired the New York Police Department to create a special "hip-hop" patrol unit that cruises by certain hot spots looking for rappers involved in illicit activities.

CLUBS SPEAK OUT

Clubs say that the incidents that make headlines are small when the number of discos and patrons are considered. They also contend that many of their efforts for improving relations with the city and residents (like a recorded message in cabs from Madonna urging club-goers to be responsible) have been snubbed by city officials.

"When there are events at Madison Square Garden or parades, organizers hire off-duty police officers," said Andrew Rasiej, who also runs Digital Club Network, which broadcasts music events online. "We've asked police and the city for the same thing. Their response has been: No."

Another consideration, club owners say, should be the positive economic impact they have on the city.

Indeed, a recent study by the Manhattan Borough President's office reported that the city's bars, clubs, and ballrooms generate three billion dollars for the local economy and account for more than 27,000 jobs. A survey commissioned by the New York Nightlife Association claims that the nightclub industry brings in more people than the city1s sports teams, Broadway theaters, the Metropolitan Museum of Art and the Empire State Building combined.

And New York does not provide a particularly business friendly environment for those who want to open a disco. A total of 26 separate credentials from various city agencies are needed, and some owners say they have spent more than one million dollars without assurance that their club will be allowed to open.

Zoning may be the most difficult part of the equation.

In the past, clubs could find homes in neighborhoods that were more industrial, but as housing and land for new residential development grows more scarce, the areas that welcome nightclubs are growing smaller. In the mid-19801s, neighborhoods like the West Side were rezoned for mixed use by commercial, real estate, and manufacturing interests. The zoning threw everyone into inevitable conflict.

"When you sell a loft in the meatpacking district for two million dollars, those people expect the same quality of life as those who live on Gramercy Park," said Rasiej. "But it is not going to happen."

KIDS THESE DAYS: THE HISTORY OF CLUBS

Of course, the battles between nightclubs, residents, and politicians are nothing new.

In the 1860's John Allen, the owner of a dance hall on Water Street that doubled as a bordello, was commonly referred to as the "wickedest man in New York." By 1910, the political reformers were able to convince the state legislature to amend the city charter so that it required licensing of dance halls. Soon after, many social venues began calling themselves dance academies and offered dance instruction in an effort to circumvent regulations and present a more positive image to the public.

Opposition did not deter dancers and clubs. By 1925, there were 786 licensed dance spaces in the five boroughs, 238 of which were in Manhattan. And a study at the same time calculated that 14 percent of the city1s males and 10 percent of the city1s females between 17 and 40 years old went dancing at least once a week.

The modern discotheque with its fashionable celebrities, elaborate sound systems and lighting, and unique problems did not emerge until the 19601s.

Early discotheques included the fashionable Ondine on East 59th Street, Le Club on East 55th Street, and Arthur, owned by the son of Adlai Stevenson, that featured rock and roll bands. The Electric Circus on St. Mark's Place opened in 1967 and featured trapeze performance artists as well as parties for famous people, hippies, and students. In 1977, working-class discos in the boroughs were made world famous by the film, Saturday Night Fever.

Studio 54 became the best-known club of the 1970's with its policy of selective admittance, drug use, and decadent parties. The party may have seemed to go on forever, but in fact it ended in 1979, when the owners of Studio 54, Stephen Rubell and Ian Schrager were arrested by federal agents and convicted of tax evasion.

By the 19801s clubs began opening in unused warehouses in Chelsea, Lower Manhattan, and the meatpacking district. This angered residents. They began organizing against them.

The most tragic and deadly nightclub incident happened in the Bronx in 1990 when Julio Gonzalez set fire to Happy Land Social Club after an argument with his girlfriend. The fire claimed 87 lives and highlighted the problem of illegal clubs that operate without proper licenses and safe building codes.

MAKING GOOD NEIGHBORS

"New York has a well-deserved reputation as the 'city that never sleeps,'" said Manhattan Borough President Virginia Fields. "Unfortunately, in some instances, conflicts sometimes arise between these types of businesses and communities in which they are located."

Toward the end of helping clubs become good neighbors, Fields has issued a number of recommendations that include creating special police units to enforce existing rules on nightclubs, reform of the State Liquor Authority procedures, and improved zoning.

Other local measures are also underway. West Side City Councilmember Christine Quinn said community boards two and four in her area have created joint hearings on the use of the meatpacking district that creates better dialogue between nightclubs and residents.

However, community groups admit that even well meaning club owners are fighting a losing battle. "The days when the neighborhood would welcome a large venue for 2,000 people are over," said Garcia. "And there is no doubt that any new club is paying for all of the bad people that came before them."

Non-profits, like Dance Safe an organization that works to promote safety and health at raves and nightclubs, are also doing their part to try to improve the scene. Dance Safe sets ups booths and provides water, information, condoms, and ear plugs. They sometimes even perform a chemical analysis of patrons' Ecstasy pills to make sure they do not contain contaminants.

"People are going to do certain things," said Paul Hale of the New York City Dance Safe chapter. "We do not condone or condemn drug use. We try to educate and reduce the harm people can do to themselves and others."

Hale also noted that most of the people he encounters at clubs are sober and that many overdoses of Ecstasy and GBH have occurred at frat houses and college parties, not just at nightclubs.

Ultimately, the battles over nightclubs pitch each interest against a host of opponents.

Residents complain that police, the State Liquor Authority, and the city are not doing enough to enforce the present laws. The city complains that the long court cases against nightclubs often do not produce results because of unenforceable laws. Fire and police officials say they are cracking down on the problem and that surprise raids that they conduct yield evidence that clubs are routinely breaking the law and putting patrons in danger.

Nightclubs complain that they have few friends in the city.

The only people not complaining are the thousands of young people who, egged on by hip magazines and designers and music promoters and various celebrities, each night are on the lookout for the latest, hottest, and most fashionable place to be. Or, if they are complaining, nobody can hear them through the beat.

Related Articles

 

Sanctioning Police Malpractice


What is the proper professional punishment for a mistake that results in a person's death? A physician's fatal error, for example, can result in the withdrawal of hospital privileges and sometimes the revocation of the medical license, though seldom is either punishment imposed for a first offense. Is medical malpractice a good analogy for police malpractice? What should the punishment be for a police officer's fatal error?

Police Commissioner Bernard Kerik recently announced that the four officers acquitted by an upstate jury of all criminal charges in the killing of Amadou Diallo would be confined to desk jobs, but not punished further. (The 22-year-old unarmed West African street vendor was killed on the night of Feb. 4, 1999, while standing in front of what turned out to be his Bronx home.)

New Yorkers, according to the New York Daily News, do not agree with Kerik.

In a Daily News/New York 1 poll, respondents were told that the police department "has decided not to discipline the four officers involved in the shooting death of Amadou Diallo." When asked whether they approved or disapproved of the decision, only 21 percent approved, and 64 percent disapproved.

These overall figures mask a huge racial disparity: 89 percent of black New Yorkers disapproved of Kerik's decision, and only 2 percent approved. White New Yorkers, however, showed a different pattern: only 43 percent disapproved, 39 percent approved, and 18 percent were not sure.

The public's distress with the police department's handling of the shooting remains very high even as crime in the city has hit a record low. The police department announced on April 30 that murder, which had already been at the lowest level in three decades, had plunged another 18 percent, from 237 to 194, during the first four months of 2001. Both robbery and burglary were also down more than 16 percent.

Commissioner Kerik, quoted in the New York Post, credited police department initiatives for the crime drop, citing the department's focus on gangs, its high priority on warrants for violent felons (warrant arrests are up 50 percent), and the fine-tuning of the department's assault on drugs. Kerik summarized his approach as "going after the bad people and taking them off the streets."

But, of course, the tragedy of Amadou Diallo was that he wasn't a bad guy. He was a good person, killed by the police searching for a vicious rapist. And while New Yorkers are very happy indeed with the drop in crime, they are chagrinned about the mild official punishment of the four officers, who were barely sanctioned for police malpractice.

Mickey Blum, president of Blum & Weprin, which conducts the polling for the Daily News and New York 1, says that New York opinion has stayed fairly consistent since the shooting. "Something dreadful happened," she says. "Something went very wrong. And most New Yorkers have pretty consistently felt that those cops and the department should be held responsible in some way." She adds that many New Yorkers think that if Diallo had been white he would not have been killed.

RACIAL PROFILING'S UGLY FACE

This reminds New Yorkers once again that a racial disparity exists on many issues of crime and justice. Much of that disparity is due to the reality that day in, day out, black Americans are more vulnerable than white Americans to being stopped by the police, fairly or unfairly.

As Harvard Law Professor Randall Kennedy points out in his book, "Race, Crime, and the Law" (Pantheon), cops stopping an African-American male for no apparent reason other than the color of his skin is not unlawful in most jurisdictions. The courts permit law-enforcement officials to use race as a "risk factor" that justifies a stop-and-search procedure.

Kennedy calls this strategic racial discrimination by police officers a "short cut," a helpful way for police to use their resources more efficiently. If 80 percent of drug-runners are young black men, what's wrong with taking race into account when investigating the crime, asks Kennedy, himself an African-American.

What's wrong, he answers, is that the police use of race as a proxy for suspiciousness creates enormous day-to-day distrust and alienation among black Americans. And that matters to all Americans for two reasons. First, opening the door to strategic, rational discrimination condoned by the courts (including the Supreme Court) also opens the door to invidious racial discrimination, the kind that all decent people would condemn.

Second, a black person's being stopped by the guardians of law and order comes back to haunt the community when those who have been detained become lawyers, judges, jurors, and bring with them the anger they feel over unwarranted harassment and humiliation by police and, by extension, the courts. Halting this practice will not solve all problems, but will go far toward draining the deep sense of injustice African-Americans feel, Kennedy argues.

In the May 2 Daily News, mayoral candidate Fernando Ferrer applies a similar argument to New York, pointing out that what he calls the "tragically bad judgment" of the Diallo officers cost an innocent man his life. This should, argues Ferrer, cost them their badges and guns. The failure "to prosecute police misconduct vigorously," he writes, sends the message that the justice system is flawed, and that it protects others, not them. He concludes: "When you create pervasive doubt about the fairness of the system, it becomes that much more difficult for law enforcement to win convictions before juries, no matter how legitimate the case."

MISDEMEANORS AND POLICE ABUSE

The tragedy of Diallo is so enormous that it overwhelms a more routine police-community problem -- and that's the problem of discretionary stops by police of people either acting suspiciously or committing minor offenses. There is no question but that a safe city requires smart, competent, decent police officers to patrol the streets and exercise careful judgment in stopping citizens. Yet the problem of discretionary stop-and-frisks has festered in New York for a long time, as has the problem of full arrests for minor offenses. Now the Supreme Court has weighed in with a 5-4 decision validating full arrest -- including handcuffs and jail -- for a petty offense. In the case before the Court, it was a suburban soccer mom in Texas not wearing a seat belt.

A cop stopped Gail Atwater, who said that she had been driving slowly (15 miles per hour) without a seat belt on an empty street to look for a lost toy. She had let her children unbuckle their belts to look out the windows.

Officer Turek had stopped her once before for not wearing a seat belt, a misdemeanor in Texas. Writing for the majority, Justice David Souter summarized what happened: "Respondent Turek, then a Lago Vista policeman, observed the seat-belt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car and drove her to the local police station, where she was made to remove her shoes, jewelry and eyeglasses, and empty her pockets. Officers took her 'mug shot' and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seat-belt misdemeanors and paid a $50 fine."

Thus the Supreme Court held Officer Turek's action to be reasonable under the Fourth Amendment, which begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Souter noted the humiliating character of the arrest over a "very minor criminal offense," but said he was comfortable relying on the "good sense" of local lawmakers and peace officers to keep such humiliating arrests from becoming excessive. He said there is a "dearth of horribles demanding redress."

A dissent, written by Justice Sandra Day O'Connor, pointed out the officer's intent to "threaten, frighten and humiliate" Atwater, and the completely unnecessary character of the arrest and jailing. The common law, argued O'Connor, would have barred the arrest because the traffic violation was not a breach of the peace, making the arrest unreasonable.

Most Americans probably thought that our majestic U.S. Constitution protected us from this kind of police excess. An arrest, of course, is the ultimate seizure of the person -- and an arrest over a patently trivial matter would seem on its face to be unreasonable.

In the last few years the Supreme Court has tended to affirm the authority of police officers to stop, detain, and search citizens in a wide variety of circumstances. It has substantially expanded the ability of cops to seize and search vehicles, including handbags found in vehicles, without warrants. It has okayed police stopping someone who has fled on sight of a cop in a high-crime area. On the other hand, the court also held that a cop could not search a vehicle that had been stopped for a traffic violation and only a traffic violation. Thus there's some irony that it was a seat-belt violation -- a truly low-level offense -- that has provoked this assertion of a cop's authority for full arrest for any offense.

Newspaper editorials across the country have expressed a great deal of anger and outrage about the decision. But here's the shocking thing: The Supreme Court is right, or at least "right" in the sense that legislatures and courts have been approving the practice of what they call "warrantless" arrests for misdemeanors for 200 years. So why are many of us shocked? Perhaps because it has not happened to most of us personally.

Criminal defense lawyer Robert E. Levy points out that in New York a police officer can arrest anyone for any offense, including a petty offense, that is committed in his or her presence. A cop can arrest you for a speeding ticket. Cops generally don't, because they are guided by internal police memoranda on what is "arrestable." For a while, says Levy, petty offenses were arrestable in New York. A public uproar resulted in the police pulling back from this. The public didn't want arrests for jay-walking, littering, or dogs off the leash, however annoying some of these habits might be.

Levy also notes that an arrest is not supposed to be a punishment. Its purpose is to gain the appearance of the offender before a magistrate for adjudication. The cop is simply a conduit. If the offender has identification or is known personally to the cop -- as was Mrs. Atwater in the Texas seatbelt case -- and if there is no other reason requiring an arrest, such as hidden drugs or a weapon, then a desk appearance ticket is the usual and proper procedure.

But here is the importance for New York and other big cities: Misdemeanors or less have provoked some of the worst police incidents. Rodney King's driving while intoxicated in Los Angeles, Anthony Baez in the Bronx tossing a football that hit a police car, or the young man with several misdemeanors outstanding killed by a police officer in Cincinnati, precipitating the recent riots. They were all minor offenses with grave consequences.

And the New York Police Department's policy of regularly strip searching people arrested on misdemeanor charges cost the city $50 million four months ago to settle a class action law suit involving 63,000 people illegally searched in Manhattan and Queens. You cannot do a strip search if you know who the person is, says Levy, and have no reason to think drugs or weapons or anything dangerous is involved beyond the petty offense: "The key word in the Fourth Amendment is 'unreasonable.' The public was outraged, the city agreed to the settlements, and the strip searches stopped." (The strip searches apparently continued in Brooklyn Central Booking, according to a suit filed May 2 in federal court. Newsday says that the owner of a manufacturing company, a teacher, a high school student and four other Brooklyn residents have sued the city claiming they were improperly strip searched after arrests on misdemeanor charges. Their lawyers said thousands of other people arrested on misdemeanor charges may also have been improperly searched over the past three years.)

If the Supreme Court is right that a full arrest can follow an offense, no matter how petty, then we need legislation to tighten arrest standards to ensure that spiteful officers, like Officer Turek in Texas, do no further harm. Better yet, we need legislation limiting arrests for trivial offenses.

Says Levy: "In this modern age, the cop is in constant radio communication, and can always find out whether a person is wanted or not. People these days are generally carrying enough identification that it would be unreasonable to seize them when all you want them to do is appear in order to pay a fine. Certainly statutes should forbid an arrest with jail when the offence is one that is either highly unlikely to lead to jail--or when jail is even statutorily forbidden."

The day the Supreme Court decision was handed down affirming the reasonableness of the arrest, the Texas legislature passed a bill outlawing such arrests. The New York State legislature should consider the same. Texans are no longer vulnerable. But New Yorkers are.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Presidential Pardons


From the founding of the country forward, executive pardons by presidents and governors have been a regular means of mercifully correcting overly harsh laws or easing overly punitive sentencing in individual cases. As former pardon attorney Margaret Colgate Love (Department of Justice, 1990-1997) pointed out in the June 2000 Fordham Urban Law Journal, Americans incorrectly tend to associate pardons with politics and controversy. (I would add celebrity and notoriety to the list.) Few realize that for most of American history the pardon power was exercised routinely and quietly to give relief to ordinary people convicted of what Love calls "garden-variety" crimes.

PARDONS AS A CORRECTION TO THE JUSTICE SYSTEM

Writing several months before the Clinton exit pardons erupted onto the American scene, Love deplored the disuse and disrepute into which she feared the federal pardon power had fallen. Pardons are a necessary tool for correcting what she called the "harsh inflexibility" of the criminal justice system: in so many cases the legally mandated punishment seems morally wrong. Just as serious, she wrote, the "growing crime control infrastructure . . . reflects poorly on our national humanity."

Up until the Reagan administration, every administration from Franklin Roosevelt's to Jimmy Carter's had acted favorably on 30 percent or more of pardon petitions, says Love. Under Reagan, the percentage of favorable pardons dropped by a third to 20 percent. President Reagan also reversed course over his predecessors in absolute numbers. He pardoned 393 individuals in his two terms, compared to the 534 pardoned by President Carter in one term, says Love.

President Bush went even further. He granted only 68 pardons in his one term, or 7 percent of pardon petitions--perhaps in part because the Willie Horton clemency scandal in Massachusetts had helped him defeat Gov. Dukakis for the presidency.

Love attributes the decline in pardons to the politics of crime control, in which both Republicans and Democrats have competed for advantage in a "race to incarcerate," producing what Love calls "a prison industrial complex with a powerful institutional constituency."

THE PARDON CONTROVERSY IN NEW YORK

And now we have the Clinton exit mess, a controversy which is not about to go away in New York, home or former home to many of those pardoned. Since some of the pardons are thought to have been helpful to the successful campaign of our new junior U.S. Senator, Hillary Clinton, the specter of unseemly politics floats in the background.

This is not the first round of pardon controversy in New York. In August 1999 Clinton granted clemency to 16 members of a Puerto Rican nationalist group serving lengthy prison sentences for terrorism. Republicans charged that clemency was an attempt to strengthen Mrs. Clinton's Senate bid. The White House denied she had played any role. (The allegations were examined in the Findings of the Committee on Government Reform, available online)

Thus the pardon cauldron already held a volatile mix before the early February announcement from the Bush administration that Mary Jo White, the U.S. attorney for the Southern District of New York, would be the prosecutor in charge of investigating the pardons. The Chicago Sun-Times called her "the most feared and respected prosecutor in the United States." (Even without White, the Southern District, which includes Manhattan, is considered to be the highest profile prosecutor's office in the nation.)

Although Clinton appointed White in 1993, they quickly became non-friends. Their aloof relationship cooled even further when she looked into charges that the Teamsters Union funneled cash to the Democratic Party during the 1996 election. President Clinton failed to consult her or her office when he pardoned New Yorkers or former New Yorkers, including fugitive financier Marc Rich and his partner Pincus Green.

Now White has opened a criminal investigation about whether Rich contributed to the Democratic Party in exchange for the pardons. (Rich's former wife gave hundreds of thousands of dollars to the party and to Clinton's presidential library.) Or, for that matter, did Rich or Green commit any other violations of federal law? In grand prosecutorial tradition, White is embarking upon a wide-open investigation. She is authorized by the Bush administration to investigate or delegate the investigation of any of the 177 pardons granted by Clinton during his last days in office.

PRESIDENTIAL PARDONS AND THE CONSTITUTION

On one historical fact, every historian agrees: The Founders of this nation did not want a king. But because most of them did want a powerful executive, they looked to the model of the English monarchy for guidance. They discarded some kingly powers (such as unlimited control of appointments), and chose the ones they thought most suitable--including the unlimited power to pardon.

They were confident they had constructed the office well. Indeed, Alexander Hamilton in the Federalist Papers predicted the presidency would be "filled by characters preeminent for ability and virtue." This assumption, though quickly proved false, makes the pardoning power seem less reckless.

More important to them, however, were the troubled times of the 18th century, riddled with class warfare, particularly in England. Not accidentally, it was also a time of brutal criminal law, in which nearly every offense--theft, forgery, poaching--was a capital crime. While juries regularly tempered the law's cruelty by refusing to convict, huge numbers of English subjects were routinely sentenced to be hanged. The king's pardon, supported even by conservative Parliamentarians like Edmund Burke, moderated the law when necessary, to retain popular support.

As historian Douglas Hay argued in his study of 18th century crime, "The law was important as gross coercion; it was equally important as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission" that maintained the loyalty of the English poor. Royal pardons, wrote Hay, "were presented as acts of grace rather than as favours to interests."

Or as William Blackstone wrote in his definitive commentaries on English law: "These repeated acts of goodness" had the effect of endearing "the sovereign to his subjects, and contribute(d) more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince." That's the theory, anyway.

In their search for a well-ordered government overseeing a stable society, the founders endowed the presidency with this unlimited kingly power to pardon citizens as an outlet to overly severe laws or courts. According to Hay, however, even in the king's hands the power was often suspect. The "grounds for mercy," he wrote, "were ostensibly that the offence was minor, or that the convict was of good character, or that the crime he had committed was not common enough in that county to require an exemplary hanging."

Under this analysis, we might put the president's pardon of his brother's cocaine conviction in the "minor" category--and therefore suitable. (Though many observers would quickly point out the thousands of unpardoned inmates, including mothers, whose cases are at least equally worthy.)

Applications that go through regular channels in the Department of Justice--which Clinton pretty much bypassed--nearly always put forward an argument of good character. The applicant is cited for family values, community and church service or generous philanthropic contributions--though often of ill-gotten gains.

Hay doubts that most kingly pardons were meritorious. On the contrary they "served to save a good many respectable villains." Then, as now, the pardon tended to go to the well-off criminal because "mercy was part of the currency of patronage. Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation." But there was a downside to all this.

The power had to be used judiciously or its effects could boomerang. Says Hay: "The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny." Ridicule of the law and close scrutiny of this once unquestioned presidential power are quickly becoming two more legacies of the Clinton years. The push is on to restrict the presidential pardoning power, which would entail an enormous political and constitutional fight.

DAMAGE TO THE JUSTICE SYSTEM

Mercy must be an active part of a healthy justice system. In a March 6 article in the New York Law Journal, two former federal prosecutors, Elkan Abramowitz and Barry A. Bohrer, argue that whatever damage Clinton's pardon of Marc Rich did to Clinton's own reputation and legacy, the graver concern is with the damage he may have inflicted on the institution of executive clemency itself. That's because the possibility of obtaining mercy outside the rigid procedures that govern the criminal justice system is an important safeguard both to those seeking absolution, and to "a public committed to the notions of fairness and justice in the administration of its criminal laws."

In other words, the possibility of mercy and forgiveness functions as a protection for everyone. While many commentators have attacked unlimited presidential discretion in granting pardons as an anomaly that should now be corrected, these two former prosecutors see it as "the ultimate check on legislative or judicial injustice."

After all, we live in a time of harsh criminal laws that are often made even more severe by mandatory minimum sentences essentially eliminating judicial discretion. Alexander Hamilton could have been writing about our own time: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.



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