Is New York City About to Ease Up on Petty BS Crimes?

The NYC authorities are considering reforms that would soften penalties for things like urinating in public, making unreasonable noise, and hanging out in a park after dark.

by John Surico
Jan 21 2016, 5:12pm

Photo via Flickr user Aurelien Guichard

Last April, City Council Speaker Melissa Mark-Viverito announced that she wanted to go easier on several low-level offenses in New York. Her list of bullshit crimes we shouldn't be sweating too much included urinating in public, making unreasonable noise, and hanging out in a park after dark. It might seem trivial, but according to a Daily News analysis at the time, roughly 2.7 million New Yorkers had been hit up for these kinds of petty infractions between 2001 and 2013.

This is the pure, street-level incarnation of "broken windows" policing, a popular model of law enforcement where so-called "quality of life" offenses are aggressively enforced in order (theoretically) to prevent larger crimes. And the result—at least, in Manhattan—is a bizarro-world criminal court that is running full steam at 1 AM on a weeknight. And there are over 1 million open arrest warrants in NYC, mostly for minorities in low-income communities, for things like pissing in public a decade ago.

Now it looks like that might finally change.

On Monday, the City Council will introduce the Criminal Justice Reform Act of 2016, a package of eight pre-considered bills created in tandem with the New York City Police Department (NYPD) and City Hall. Together, the law would set a preference for police officers to hand out civil penalties, rather than criminal summonses, for those who are caught with an open container, littering, urinating in public, making unreasonable noise, or violating park rules. In addition, the act would eliminate permanent criminal records for public urination and park violations.

To pull this off, the move would be conducted administratively, as several public agencies, like the Parks and Health departments, agree to no longer treat certain offenses as misdemeanors. Should a civil offense be handed out, the act would transfer its adjudication to the Office of Administrative Trial and Hearings (OATH) courts, which could offer community service to low-income individuals, instead of requiring them to pay a civil penalty. In later proceedings, this court would also be significantly expanded, in order to accommodate the onslaught of new cases.

By doing so, the new rules would attempt to lift some of the 42 percent of all NYC criminal summonses that involve this sort of low-level BS, thereby allowing the clogged system to focus on more serious stuff, like gun violence or domestic abuse.

"The Criminal Justice Reform Act of 2016 is a bold step towards reforming a system which for too long has disproportionately punished low-level, nonviolent offenses," City Council Speaker Melissa Mark-Viverito, who wrote an op-ed for VICE News on the issue last year, said in a statement. "By increasing the use of civil adjudication instead of relying on our broken criminal summons system, we can reduce the long-term consequences of over-criminalization while ensuring that the penalties fit the offense and that police have the tools they need to keep us safe."

However, the preference for the police to go civil, not criminal, is just that: a preference. In the end, it is up to internal NYPD policy—and the average cop on the street—to decide how and when to confront these types of offenses. The act would require the Department to set criteria for certain interactions, which would then be made public, and the Council would track the number of civil or criminal complaints.

But the cops will still effectively be the ones deciding who gets arrested, and for what—a serious problem when you consider the racial disparities in NYC policing.

A report issued in May by the Police Reform Organizing Project (PROP) demonstrated the inequities baked into "broken windows": Essentially, that it applies to minority communities and doesn't exist in white neighborhoods. According to that analysis from before, a startling 81 percent of those low-level offenses were handed out to black and Latino individuals.

Another issue is that a lot of time these individuals are poor, which this reform doesn't necessarily address—one worry is that it will result in more fines being levied against people who can't afford to pay. (This criticism was also leveled after the city softened its stance on public possession of weed last year.)

Still, the bills are the end result of lengthy negotiations between the City Council, the NYPD, and the administration of Mayor Bill de Blasio, who was elected in 2013 on a police reform agenda. He's heralded initiatives of his own to fix the insane summons system, and, according to the New York Times, his office appears to be behind the bill.

From what it looks like, the boys in blue are receptive to change, too.

"Our direct input has been considered instrumental and well-received by all involved in this important process," Stephen Davis, the NYPD Deputy Commissioner of Public Information, said in a statement. "We look forward to the establishment of reforms that positively affect the goals of fairness and public safety. The NYPD appreciates having the opportunity to continue to play a key role in this process."

But according to Council Member Rory Lancman, a sponsor of one of the bills, that process wasn't always easy—particularly when it came to dealing with NYPD Commissioner William J. Bratton. In the end, he "adheres to 'broken windows' almost like a religious belief," Lancman told me. After all, the top cop has built his career on the theory's debatable success, both in NYC and in Los Angeles, where he was also police commissioner.

"A year ago under Bratton, you couldn't imagine this happening," Lancman told me. "He was very dismissive. But I think we were determined to do something on this issue, and he realized it was better to work with us than against us, if begrudgingly." (He reminded me that Bratton is still opposed to a handful of police conduct bills floating around in the Council.)

Since then, the police commissioner has evolved a bit, opening himself, albeit slowly, to some changes. Just this week, in an op-ed for the Daily News, Bratton wrote that the reforms in place must prevent RoboCops. "We want to develop well-rounded, highly skilled police officers, not arrest machines," he said.

"This really isn't about taking the 'broken windows' out of 'broken windows,'" Lancman argued. "It's about that part of the criminal justice system that Bratton never focused on. After you make sure the windows aren't broken, what happens to these people?"

Although he believes it is "very highly likely" the bill will pass, the councilman acknowledged that his colleagues and the public will raise questions. To that end, Lancman referred to a Daily News cover from last April in response to the Speaker's announcement, where a man was seen pissing on a building in broad daylight.

The headline? "Drink, Pee, & Be Merry!"

"We want to address the core concerns," Lancman told me. "We don't want cops to stop identifying and targeting true bad guys in this city. We just don't want them to run people through the criminal justice system who don't have to be run through it."

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