FAQ
We received some questions about our call for a moratorium for broken windows prosecutions. Check out our answers below for clarifications.
What are broken windows prosecutions?
Broken windows prosecutions, or quality of life prosecutions are criminal charges directed at individuals for low level offenses, also known as quality of life offenses. These include misdemeanors and violations (non-criminal charges) for the following activities:
- Possession of controlled substances, marijuana, alcohol, unstamped cigarettes
- Theft of services (not paying subway or bus fare)
- Gambling
- Trespassing
- Public lewdness
- Loitering
- Begging, panhandling
- Promoting/patronizing prostitution
- Petit larceny
- Resisting arrest
- Unlicensed general vending
- Unlicensed driving
In the 1990s, the New York City Police Department (NYPD) started aggressively arresting people for low level offenses under a theory called “broken windows policing.” The idea was that heavily policing quality-of-life crimes would create the appearance of orderly streets which would then drive down more serious crime. In practice, the quality of life of some became privileged over others.
Under broken windows policing, poor folks of color, particularly Black and Latinx, already struggling to get by, are systematically targeted by law enforcement. This kind of policing began at a time when social welfare spending in New York City was reaching new lows, pushing those already on the margins into the streets, and into economic precarity. They are stigmatized as being undesirable to the city and unruly. Being poor and being involved in the informal sector became criminalized; selling DVD’s on Canal Street, jumping the turnstile to get to work, and sleeping in the bank vestibule all have become crimes, for which individuals face arrest after arrest, conviction after conviction.
The lives of those targeted by broken windows policing are made further precarious from this regular involvement of the police and the courts. They are constantly indebted owing jail time, fees, surcharges and days of community service. Many who have studied this history and reality have noted this kind of policing leads to the criminal courts managing and supervising poor communities of color, of which immigrants make up a sizeable proportion. These prosecutions serve as a means of marking Brown and Black bodies with criminal records, and as a means of instituting state supervision and discipline. The harm of these prosecutions is now heightened for non-citizens, as they face the additional threat of deportation for these low level offenses.
And, although these arrests and prosecutions continue, the NYPD itself has conceded there is no relationship between the felony crime rate and quality of life arrests and prosecutions. In other words, there is no public safety justification for these arrests and prosecutions.
Why are you asking for a moratorium as a opposed to a permanent halt?
We decided to make the script focused on a moratorium as an immediate action the District Attorneys offices could take to make good on their promise to make New York a sanctuary city. We do want a permanent end to broken windows policing, but we wanted something concrete as the objective of the call.
Can prosecutors choose not to prosecute certain offenses?
Yes, prosecutors have wide discretion to choose which crimes to prosecute. Even if a prosecutor has admissible proof beyond a reasonable doubt in a given case, she can decline to bring charges. This is a traditional and uncontroversial aspect of prosecutors’ powers. Different DAs have different enforcement priorities, even within a single city.
So you are asking for law enforcement to turn a blind eye to crime?
Part of what we are asking for, through our call, is for a re-evaluation of what constitutes crime. Many of the activities targeted by broken windows prosecutions are criminal only when conducted by Black and Brown people. In addition, much of the conduct criminalized is ultimately rooted in poverty; we should be demanding accountability from society for not provide for the economic well-being for all residents, rather than blaming individuals trying to get by. As such, we advocate for comprehensive economic solutions to those problems, not punitive law enforcement solutions.
The cumulative effect of broken windows policing and prosecution is to devastate our city’s poorest communities. Scholars have likened its impact to indiscriminate collective punishment, a war crime under international law.
Why is this call being made now, despite the fact that Obama deported over 3 million people, the most of any President in American history?
Advocates in New York have been calling for an end to broken windows prosecutions for years because of the violence it inflicts on poor communities of color. At the same time, the immigrants rights movement has been fighting the deportation machine that Obama expanded. Under Trump, there is even more desperate need to end broken windows policing because he has promised to go beyond Obama’s enforcement, and deport 3 million people. Trump’s priorities for deportation enforcement are especially heinous because they include people who have only been charged with a crime, not convicted. In effect, it eviscerates the presumption of innocence, making undocumented folks even more vulnerable to deportation based off an accusation of guilt that has not been proven.
See these two links for more information:
https://www.thenation.com/article/donald-trumps-looming-mass-criminalization/
I thought New York City already agreed to stop prosecuting quality of life offenses?
In the past few years, it is true that the City has taken some steps to stop prosecuting certain low level offenses. However, in reality quality of life policing and prosecution persists. A whole courtroom in Manhattan is dedicated to these cases, and on a weekly basis new arrests are being made. These promises by DAs may create cosmetic changes to the range of cases prosecuted, but broken windows prosecutions continue. For example, the late Brooklyn DA, Kenneth Thompson promised to stop prosecuting possession of small amounts of marijuana. Yet, on a daily basis, we see arrests for possession of marijuana in Brooklyn.
At the same time legislation passed in 2016 which redirected low level offenses to a civil court, where individuals would respond to summonses (a slip of paper) rather than be arrested. However, the full impact of this legislation has not yet been felt, until and unless the NYPD provides guidance to its officers for when arrests are not necessary. The NYPD’s compliance with the 2016 legislation has not yet been fully achieved, because of the timeline set forth by the legislation. We cannot wait until that happens. It is also our understanding that not all quality of life offenses will be redirected to the summons part. The DA has the power to decline to prosecute these cases until comprehensive legislative reform and implementation towards decriminalization has been achieved.
What is the timeline for these efforts?
The timeline for these efforts is immediate. With the Trump administration’s new enforcement priorities, we have no time to spare. It is imperative that the five District Attorneys in New York City stop prosecuting low level offenses immediately to prevent people already vulnerable to deportation who are arrested for quality of life offenses from being deported.
How can I stay updated on your campaign?
For the time being, please like our Facebook page, and we will post updates. Stay tuned for a website.
Why are you not also targeting the NYPD?
Any effort to decriminalize quality of life offenses must also focus both on the NYPD and the District Attorneys. Recent legislation passed that encouraged the NYPD to issue summons rather than arrest. No such legislation has passed mandating the prosecutors’ offices to do the same, in the interim until the NYPD stops making arrests. Advocates like as Communities United for Police Reform, which 5BD is a member of, and The Campaign to End Broken Windows are already working hard on pressing the NYPD to change its practices, with great success. As public defenders, our primary interlocutor are the DAs, which is why we have targeted them. Over the course of representing people being dragged through the system, we are keenly aware of the prosecution’s practices and attitudes. We are harnessing this awareness to demand positive change. In addition, we have strong reasons to believe that NYPD arrests are based on their communications with the prosecutors. When a prosecutor’s office declines to prosecute a particular case because it is no longer an enforcement priority, the NYPD gets a message these cases are not worth its time.
How do Trump’s executive orders change immigration enforcement for non-citizens already inside of the country?
From the Immigrant Defense Project and Padilla Support Center:
The existing immigration laws dictate who is legally “removable.” Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions. The president cannot redefine who is legally “removable” without an act of Congress. However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.
Some clients who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction. Of note, any “removable” person who has been accused or convicted of a crime is now a priority for deportation. This is a time of crisis where as public defenders, we are moved to take direct action to stop these policies from devastating lives, families and communities.
Immigration authorities will prioritize deporting the following categories of “removable” people:
- Those with any criminal conviction(s);
- Those with pending criminal charges — even if such charges have not been resolved;
- Those who have “committed acts that constitute a chargeable criminal offense;”
- Those believed by immigration officers to pose a threat to public safety or national security;
- Those who have a final order of removal; and
- Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.
One of Trump’s executive orders, the one which institutes a ban on Muslim immigration has been successfully challenged in federal courts, resulting in a temporary injunction. However, the order relating to Trump’s removal priorities remains good law, and is unlikely to be overturned in the courts because of the federal government’s “plenary” power in matters of border security and immigration. For this reason, we see an urgent need for local action to lessen the impact of Trump’s policies.
