Gotham Gazette

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City Council Power Over Broken Windows Policing

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City Council Member press conference in support of the NYPD (photo: William Alatriste)

While specific incidents involving police violence – from the killing of Mike Brown in Ferguson, MO, to the death of Eric Garner on Staten Island – have been highlighted in protests all over the country since the summer, some commentators have attempted to contextualize the unrest. They detail what many describe as the daily injustices, especially in black communities, suffered by residents in their routine interactions with the police.

It is these daily interactions that create the foundational distrust that has exploded into a national phenomenon this year, activist Opal Tometi explained

Yet, the police do not act independently but within a wider framework attentive to social order and, in many places, the maintenance of the status quo.
In New York City, local policing reforms have focused on departmental policies and tactics, but less attention has been paid to the bedrock of the NYPD's authority, the laws that officers, as agents of the state, have been empowered to enforce.

In New York City alone, there are nearly 10,000 laws, violations, rules, and codes that a person might break, and the NYPD initiates approximately 1 million punitive interactions with residents every year. Almost none of these interactions have anything to do with serious crime. About half result in summonses. Of arrests, just 25 percent are related to felonies. Between 2001 and 2013 there were nearly 7 million summonses issued in New York City, compared to 5 million 'stop-and-frisks' during the same period. In 2014, tickets for jaywalking were up about 275 percent.

It hasn't always been this way. A concerted effort was made by city lawmakers in the 1990s to expand the authority of the NYPD to include enforcement for behaviors that had not previously been considered crimes. This shift provided legal justification for the routine intrusions that some, like Tometi, have pointed to as provocation for the apparent decline in legitimacy felt towards the police in specific neighborhoods around the New York City.

While the police have borne the brunt of recent protests targeting criminalization and brutality, lawmakers have generally been left off the hook, despite their crucial role in determining which behaviors are considered "criminal" and which are not. The City Council - not the police - has the power to roll back some of these laws, providing them with perhaps the largest lever to push in fundamentally changing the relationship between the police and residents. The Council also provides oversight for the NYPD and controls, with the Mayor, the agency's budget.

In the 1970s and 1980s, law enforcement resources were focused on serious crimes. As order-maintenance policing became en vogue in academic circles, and was adopted by NYPD Commissioner William Bratton and Mayor Rudy Giuliani here in New York, the size of the police force was expanded and the emphasis shifted from policing serious crimes to the enforcement of low-level penal code violations and infractions of the City's administrative codes. Above all, Bratton wanted an increase in the number of interactions between the police and the public.

For the police to stop people constitutionally, however, they needed justification. In addition to beefing up enforcement on existing low-level laws, a strategic effort was made by the City Council and Giuliani, at the NYPD's urging, to create new laws explicitly for this purpose. Thus "aggressive panhandling" entered the realm of criminal conduct. At the time some council members balked, claiming the new laws and codes were "repressive," that the NYPD should not have increased authority to control particular behaviors, but today, it's the new normal.

In the early 1990s, along with a huge rise in misdemeanor arrests (recently detailed in a John Jay College report) there was a concomitant rise in summonses, which refer to behaviors, typically, that do not rise to the level of criminality. The number of summonses issued by the NYPD exploded, jumping from 150,000 in 1993, to nearly 500,000 just five years later. Of the seven most common summons infractions, which make up about half of all summonses in New York City, only two are actually penal code violations - that is those laws dictated by the State of New York. The others are violations of administrative code, health code, parks rules, and traffic law - generally local rules dictated by City Council. Open liquor container citations - an administrative code violation - were, in 2013, the top summons offense in the city. At least one judge has suggested that the police are enforcing this rule in a racially discriminatory way.

In the beginning, state lawmakers pushed back against this effort by the City Council, Bratton, and Giuliani to criminalize what had previously been legal behavior (in some cases de facto), in large part because they were concerned about the costs associated with adjudicating these new criminal cases – almost all of them violations and misdemeanors – in court. And so, in 1995 the State enacted a law that removed from criminal court jurisdiction all non-misdemeanor offenses charged under the Administrative Code. This would have made infractions, such as open container and public urination, into civil penalties, akin to a traffic ticket to be adjudicated in administrative, rather than criminal proceedings. Giuliani viewed the state law as "potentially devastating" because it divested the City of certain law enforcement authority.

At the behest of Giuliani, the City Council responded to the state bill with its own legislation to retain jurisdiction over violations. This allowed the police to continue the practice of using infractions as justifications to stop, question, detain, search, warrant check, and identify people who were suspected of breaking minor rules. This cemented the heyday of so-called "broken windows policing" - which Bratton, Mayor Bill de Blasio, and others credit for leading to the city's precipitous drop in violent crimes, although this assertion is contested.

In one manifestation of the approach, marijuana enforcement was increased as a way to control public gatherings of youth – not necessarily to curb marijuana use. "The police were not really interested in the possession of marijuana but instead used marijuana arrests to try to discover people with felony warrants outstanding against them," Criminologist Frank Zimring explained.

One result of Bratton's new strategy was a dramatic increase in the number of defendants in criminal court with no prior criminal court experience – and the population of people marked with a criminal record began to grow swiftly. As did distrust of police. People with criminal records or open and unresolved cases are left vulnerable to heightened enforcement should they come into contact with police at a later date.

Over forty certified city agencies – from the Human Resources Administration to the Sanitation Department – have the legal authority to issue summonses, yet the vast, vast majority are written by the NYPD. In 2013 there were 458,095 summons issued citywide, down from 510,270 the year before and from a peak of 648,638 in 2005. As of late 2014 the city was on pace to see the decline continue, a trend perhaps welcomed by the communities most heavily impacted by summons practices – the same communities targeted by stop-and-frisk, vertical patrols, and Operation Impact.

As the data shows, it is specific neighborhoods targeted for this type of policing. For example, there were roughly the same number of summonses issued in the single Brooklyn neighborhood of Red Hook as issued in the entire borough of Staten Island in 2012; the jurisdiction of the Red Hook court covers approximately 200,000 people - less than half the population of Staten Island.

Also targeted are specific demographic groups. While only 17 percent of dogs in the city are licensed, according to an estimate by the Health Department, 91 percent of people ticketed for the offense of having an unlicensed dog are either Black or Latino. Black residents are especially likely to be stopped by police when they are moving through a mostly white neighborhood, according to the New York Civil Liberties Union. Police argue they simply go where the crime is.

Broken Windows policing in New York City has been operationalized to mean the aggressive enforcement of minor crimes and violations in specific, targeted neighborhoods, and, as the NYCLU analysis suggests, against specific demographics of people; whether or not any of this has had any impact on crime reduction in New York remains unproven.

There is no empirical evidence to support the idea that aggressively enforcing so-called "quality of life offenses" through police actions has had a positive impact on public safety. These behavioral offenses, some of which are technically crimes, and others, like riding a bike on the sidewalk, which are violations, have come to include actually legal actions such as playing music on the subway platform or falling asleep on the train, for which people are now receiving criminal summonses.

Some academics have argued that the social costs of these enforcements, which might lead to job loss, housing eviction, or loss of parental rights, outweigh the benefits.

Meanwhile arresting and incarcerating, for example, a homeless person who cannot afford bail, costs the city at least $600 per day simply for housing at Rikers Island, which does not include the law enforcement or court administration costs; financially there is not a more expensive option to manage this quality of life concern.
Bratton and de Blasio have been vocal supporters of this type of policing, generally, while acknowledging the necessity of reforming the manner in which police interact with the public and suggesting that there should be off-ramps for people who have already been arrested to avoid spending time in jail for minor crimes. Arrests in 2014, both the gross numbers and the volume of misdemeanor cases, virtually mirror those of 2013 - the final year of the previous administration.

These policies have already scarred a generation of New Yorkers with criminal records and seem to have played a starring role in inspiring the profound distrust of the police felt in certain communities in New York. This distrust has turned to widespread civil unrest in the wake of the death of Eric Garner, who was accosted by six police officers soon after breaking up a fight. It doesn't seem from the evidence we have that Garner, accused of selling "loosies" – a tax violation – was breaking any laws when he was stopped by the police that day. He did not have any illegal cigarettes on him at the time of his death and was never charged with a crime.

Yet, the broken windows policies implemented by the City Council empowered the police to attempt to take him into custody. The law Garner was accused of violating, roughly speaking, is a similar type of offense as being paid off the books to babysit.

In December, New York City Council members joined the protests against police brutality, staging a "die-in" on the steps of City Hall, chanting "I Can't Breathe" and "I am Eric Garner" to honor the Staten Island man. Even as the City Council decried the results of the overreach of police influence, the body, led by Speaker Melissa Mark-Viverito, has sought to add 1,000 new cops to the force. While these additions would ostensibly be given the additional training and oversight aimed at improving the quality of police-resident interactions, (new training chief Michael Julian is working with officers to get them to swear less frequently) the Council could also consider using its legislative authority to reduce the quantity of police-resident interactions.

While a small number of members have raised concerns about broken windows policing specifically, the Council as a whole has remained mostly silent on the unlimited role of the police in initiating the interactions with residents of the City that invariably lead to summonses, arrests, and incidents of brutality. The Council did announce a plan to open CCRB outposts in the district offices of participating council members, but it is unclear how many members will participate and when, or if, that initiative will get off the ground.

The police reform legislation currently before the Council, such as the Right to Know Act, which has wide support among council members but is opposed by Bratton and de Blasio, focuses on the content of police interactions rather than the number.

There has yet to be a legislative proposal for the Council to invoke its authority to limit the role of the police by carving out certain quality of life offenses from their jurisdiction or mandating civil enforcement where the NYPD has that discretion. Fare evasion can lead to either a civil summons or an arrest - there were 24,747 such arrests in 2013 and 89,128 summonses. Black residents were most likely to be arrested, rather than given a summons.

Ironically, the NYPD, in apparent protest following the death of two on-duty officers last month has stopped enforcing many quality of life violations. While the sample size remains too small thus far to provide much statistical evidence either for or against a reduced role for law enforcement, it does provide an opportunity for the City to consider ways of addressing community concerns besides the knee-jerk response for more police.

According to former cop and current John Jay professor Eugene O'Donnell, rank-and-file officers would welcome a reduction in their responsibilities to enforce quality of life concerns. "The root of this is that loose cigarette enforcement is a lunatic mission that no cop ever joined the NYPD to be part of," O'Donnell recently said.

Nick Malinowski is a social worker and independent journalist, living and working in Brooklyn; and is on Twitter @nwmalinowski.

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