"It starts off as an arrest and things get out of control": Why Broken Windows must be scaled back

It's obvious that America's criminal justice system contains deeply troubling biases. Now a new study explains why

Published February 12, 2015 1:30PM (EST)

  (AP/David Goldman)
(AP/David Goldman)

Earlier this week, a grand jury in New York City decided to indict an NYPD officer for recklessly wielding his authority and taking the life of a young African-American man named Akai Gurley. Finally, after a summer and fall characterized by racial strife and conflict between police officers and minority communities, the system was working, right? The answer is, yes and no — because unlike the Eric Garner and Michael Brown cases, the officer indicted in this instance, a 27-year-old named Peter Liang, was not white. And among the African-Americans in Brooklyn who knew the late Gurley, this fact did not go unnoticed.

As is sadly always the case in today's media environment, the #blacklivesmatter story has faded considerably since it dominated television broadcasts and newspapers all over the country. But the problem that the #blacklivesmatter movement is trying to address — the problem of a criminal justice system that is institutionally and endemically biased against African-Americans, and indeed all people of color — has not gone away. Which is why "Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System," a new report from the Sentencing Project, a criminal justice nonprofit, is so important.

Recently, Salon spoke over the phone with Nazgol Ghandnoosh, the author of the report. In addition to why the U.S. justice system is so deeply biased against so many of the citizens it's supposed to serve, our conversation also touched on the problems with the broken windows theory of policing, and what reformers can do in the coming years to make #blacklivesmatter more than just a slogan. Our discussion is below and has been edited for clarity and length. (Note: In a previous life, I spent some time as an employee of the Vera Institute of Justice, a nonpartisan nonprofit criminal justice reform organization whose research was involved in the Sentencing Project's report.)

What was it in this report that you felt either needed to be updated or had not yet been looked at?

We wanted to broaden the public discussion around what the problem was here. There was a lot of discussion around whether or not these officers followed appropriate procedure and rules of conduct and some discussion about what those rules of conduct should be, but we wanted to expand beyond that, to think about why did these interactions occur in the first place. Why was it that Officer Darren Wilson stopped Michael Brown for jaywalking? Why was it that Officer Daniel Pantaleo stopped Eric Garner and tried to arrest him for selling untaxed cigarettes on the street?

Once we got to that point of expanding on what the problem was, we thought it didn’t make sense to even stop at policing since so many of the problems that drive these disparities in policing outcomes are also there when you look at prosecutors, when you look at judges’ decisions, when you look at bail determinations, and so on as you go down the criminal justice process. We thought it would make sense to look more holistically throughout the criminal justice systems and, while doing that, also to think about the solutions to those problems and examples from around the country of jurisdictions that have implemented policies and programs to address those problems.

What did you find about race neutral-policies and how they play out in practice, in the real world?

We found that because of the way those policies relate to other broader social forces, often certain policies will end up having a disproportionate impact on people of color. A lot of people are familiar with the sentencing disparity, for example, between crack and cocaine, and that’s been reduced at the federal level and some states have also passed similar reforms but there are many other examples. That sentencing disparity for crack and powder cocaine, that stems not purely from differences in rates of usage but actually differences in arrest rates. People of color are disproportionately arrested for crack, but it’s not the case that they’re overwhelmingly using crack relative to whites.

We came up with several other examples of laws like this. Another example is the drug-free school zone laws that enhance sentences, increase sentences if someone is caught selling drugs in a school zone. So the trouble is, if you live in the suburbs and more affluent areas, you could find many places to sell drugs and you won’t be in a school zone. If you live in a dense, urban area and you’re going to sell drugs, it’s very hard to find yourself in an area where you’re not covered by one of these sentencing enhancements.We know about the demographics of who lives in affluent suburbs and who lives in urban areas, so these laws end up having disproportionately increasing sentences for people of color.

What about specific political and legal policies?

Police policies like broken windows policing create disparate impact as well; about 80 percent of the people that have been arrested for misdemeanors and summonses in New York City in the past 10 years have been Hispanic or African-American, even though blacks and Latinos comprise about half of the city’s population.

Another example is prosecutors: there was an analysis done in the Manhattan prosecutor’s office and they found that the office policy of giving worse plea offers to people who had arrest histories disproportionately affected people of color. Now, we know from other policies in New York, other policing policies like stop-and-frisk and broken windows as I just mentioned, that people of color are more likely to have arrest histories. This was somewhat surprising, I think, to the prosecutor’s office, that people of color were getting worse plea offers than whites because the policy was so focused on arrest histories rather than looking at criminal records or convictions. Clearly, we need to look beyond individual discretion. A lot of times I think the conversation tends to focus on how do we root out racism and people tend to think about traditional, overt forms of bias and get defensive and say, we don’t subscribe to those views, but it’s not just about those forms of bias. It’s also not just about what those individuals are deciding, it’s about what organizational policies are and what laws are.

How does the report look at broken-windows policing? How does the report help clarify the impacts of that policy?

We looked closely at broken-windows because we wanted to profile the regions where the recent high-profile deaths of unarmed black men had happened at the hands of police officers. I reviewed the existing research on broken-windows and I found that the best you can say of order-maintenance policies like broken-windows— policies that go after petty offenses with the goal of reducing and catching people in order to reduce the more serious and violent crimes— have had, at best, only a modest impact on crime rates. Researchers have looked at neighborhoods, for example, that have had higher rates of broken-windows enforcement versus neighborhoods that have had lower rates and then compared the policies in this way. You can also compare cities that have had this kind of policy versus those that haven’t.

When you look at it all in balance, either the researchers have found that broken-windows policing has not had any significant impact on serious crime rates or it’s had a modest impact. So I think that with that conclusion, it really calls a lot into question given how much resources are dedicated to enforcing petty offenses, given that it creates this tension and mistrust in low income communities of color that are disproportionately targeted with these policies because that’s where the higher crime rates are usually. But also given that this excessive, really high level of contact between police and individuals just by numbers means that you’re going to have higher rates of incidents that end up like the Eric Garner case, where it starts off as an arrest and things get out of control and then the police officers end up killing somebody. So on balance, given also in addition that by dedicating so much resources to this kind of policy, you’re not able to spend it in another way to reduce crime. It seems that based on our survey that broken windows needs to be significantly scaled back.

There are a lot of cops who are not thrilled with it either and not sure that it’s worth their time and the effect that it has on their relationship with the community.

In some ways, I see parallels to stop-and-frisk. While stop-and-frisk policy is where police officers in New York, and other places do this as well, would stop individuals and question them, frisk them, and often this led to a disproportionate number of marijuana arrests, for example, among young men of color because they would be asked to empty their pockets and then the police would find marijuana. There was a time when arguments were being made that if we cut back on stop-and-frisk, it was going to increase the crime rate, but in fact stop-and-frisk was significantly curbed as a result of litigation and the commitment of Mayor de Blasio to not continuing to fight for that policy, and there hasn’t been any negative impact on crime rates.

And yet, Mayor de Blasio and Commissioner Bratton are still firmly dedicated at this point to broken-windows policing, even though you could make a lot of the same arguments about broken-windows that were made about stop-and-frisk as basically a program of indirect racial profiling.

How does the lack of funding to a lot of these institutions tie into these disproportionate outcomes, which I’m guessing in turn can play into increasing inequality within society at large?

The way that we organized this report was we have these four causes of racial disparities that go beyond what you would expect just based on differences in crime rates. The first one of them we just talked about, policies and laws with a disparate impact. The second one is the one a lot of people are familiar with, bias and decision making. Those two are pretty directly about race. The last two are more specifically about class and they end up being about race because of the extent to which class and race overlap in our society. The third one is about underfunding of critical aspects of our justice system, especially as you go away from urban centers toward the rest of the country, and then the expectation that people can bring a lot of resources in their defense. For example, the high levels of money bail that are imposed on people. Low-income people are not able to pay that bail and that ends up having really significant consequences in terms of whether or not they’re going to hold out for better plea offers. Well they can’t, because they need to get out of jail, so they just accept whatever they can to get it over with as quickly as possible. So that’s a way where a lack of funding impacts poor people who are disproportionately people of color.

Then the fourth cause of racial disparity that’s mentioned in the report is also more directly about class and ends up being relevant because of the overlap of race and class. That has to do with collateral consequences, sending people off after their conviction with records that limit their abilities to get jobs, that limit their abilities to qualify for federal cash benefits and food stamps, things like that. The other aspect of it is that when we invest this much money into a punitive criminal justice system, we have that much less money to spend on crime prevention, that much less money to spend on drug treatment. This ends up having a disproportionate impact on low income people who are primarily the ones going through the system.

So your ultimate recommendation is for everybody to read the report, so they can see all of the recommendations, obviously. If I forced you to pick three things, what would those three things be?

I think one really great model is California’s Proposition 47, in that it reduces sentences for a number of people, most primarily people convicted of low-level offenses. What’s so important about that reform is first that it was approved by the general public. It went beyond what legislators had been willing to do, so it shows the support that exists right now for scaling back the justice system. What’s really important about it is that it redirected savings from criminal justice spending towards crime prevention and rehabilitation. That’s so important because if we’re talking about savings and thinking about the problems that exist in communities where people do not have the resources to help themselves get through an addiction, where people do not have the same kinds of opportunities in life as affluent communities, then that reinvestment is crucial.

The second thing I would highlight is the work that’s being done to help prosecutors weed out racial disparities in their work. With mandatory minimum sentencing, a lot of times judges' hands are tied when it comes to sentencing— but that’s not at all the case with prosecutors. They have a lot of power under the current system in deciding which charges to file against people and there’s a lot of research that shows in their individual discretion, they’re more likely to file charges that carry harsher sentences against people of color than against whites. Even when they follow organizational policies that standardize their work it can end up having a disparate racial impact. So because of the work that prosecutors are doing, it’s especially important to implement programs where the outcomes of their work are analyzed and to put systems in place to weed out unwarranted racial disparities.

The third area of reform that I think is crucial is in policing. We can see in small jurisdictions like Ferguson that there appears to be a fiscal motive to explain why there is such a high level of traffic enforcement in order to collect fines and fees for the municipal government there. That is not a sustainable model to be enforcing these kinds of petty offenses and traffic offenses as a way of raising revenues and that needs to be reformed. In areas like New York where that’s not exactly what’s going on but instead what we see is broken-windows policing that mandates an excessively high level of contact with people of color, that ends up not just in fatal situations that have come under the spotlight recently but it also results in large segments of the population who are primarily people of color having criminal records that hinder their opportunities in the future.

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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