Steve Zeidman: “Why arrest if it isn’t necessary?”
The director of CUNY’s Criminal Defense Clinic talks about the need for leadership to end broken windows policing.
CUNY Law Prof. Steve Zeidman has been a steady and effective voice for criminal justice reform, arguing often in law review journals and publications like the New York Times and Gotham Gazette against policing and prosecution practices that punish poverty and tear apart communities of color.
Zeidman has been especially focused on the now-curtailed practice of stop-and-frisk, and on the broader impact of broken windows policing. In 2013, Judge Shira Scheindlin appointed Zeidman to an academic advisory council created to help implement her order against the NYPD in the stop-and-frisk case Floyd v. City of New York.
In CUNY’s Criminal Defense Clinic (DEF) which Prof. Zeidman directs, “student interns provide direct, one-on-one representation in a variety of contexts within the criminal justice system.” Zeidman recently sat down with New Yorkers for Justice to give his analysis of the current state of broken windows policing, its impact on the poor and people of color, along with immigrants at increased risk of deportation under Donald Trump.
What is broken window policing? How it is impacting New York City communities?
You’ll hear broken windows policing referred to as a theory, which gives it a measure of credibility it doesn’t merit. It is not a theory, it’s a five-page article in The Atlantic from 30 years ago. It’s pontifications.
When you say “theory,” people act as if it’s something that’s been studied and vetted, and there’s been peer discussion and review. It’s not a theory, it’s a newspaper article that [ex-NYPD Chief] William Bratton embraced.
If a broken window is a problem, meaning that people who have nothing better to do will [think], this is an abandoned property that no one cares about, I can do whatever I want here — then the solution should be fix the window, not arrest anybody who comes near the broken window. Put money into housing. Put money into whatever it is, instead of saying if somebody is “loitering,” trespassing, I will arrest them.
The idea behind it was that if we leave public spaces untended and let them deteriorate, it has a snowball effect to the surrounding areas, the way people view it, which may or may not be true. The leap they then make, that it leads to crime, not only petty crime but then serious crime, justifies cracking down on the most minor things. That theory has never been tested, never been proven.
Even the way “broken windows” policing is referenced — as “order maintenance” policing — is a tell, that it is about using the police force as a hammer. A hammer that is wielded overwhelmingly and exclusively in communities of color. Ultimately, it is a way for police departments to try and justify hyper and overaggressive policing of Black and brown men and women.
What began the very first broken windows case, if you go back in time, was the so-called “squeegee men,” as if that was the plague of society. And then it expanded into truancy as a purported justification for arresting kids. And then it just took off in ways that are incomprehensible. People arrested for jaywalking, people arrested for sitting on their stoop, drinking a beer, and you can go on and on and on.
You might say to people, hey you know what, what are you kids doing congregating around this abandoned building? Move on. Or you could say, you know what, I asked you to move on, you didn’t, now I’m going to give you a ticket. Or you could say, I’ll arrest you. And we got to the arrests so fast for minor crimes that it was mind-boggling, whether it was a squeegee man who’s being told to stop cleaning windshields or kids who were seemingly truant. Suddenly the solution became to arrest people. The number of misdemeanor arrests went through the roof.
We fast forward to today, and here’s my short version of where things exploded: It went from broken windows policing to an equally generic zero tolerance. Not only am I going to enforce against the most minor behavior possible, but I’m going to enforce it in the most stringent way possible.
Here’s the zero tolerance piece: to the extent that the NYPD believed that if we arrest people for minor behavior, move them off the street, it’s going to somehow have this magical benefit to crime in general, they began to realize that the more we arrest people for minor behavior, we will gain all these ancillary benefits we never imagined. Here’s the most pernicious part: they began to realize the more people they arrest, not just release with a ticket, they can fingerprint. Nowadays, not only your fingerprints, DNA.
Suddenly, you have a massive database. And who is in this database? Ninety-five percent people of color. If the NYPD and mayor think a database is a great thing, they should fingerprint every single person in NYC, every baby when they’re born. It’s insane. If you want to remove equal protection problems and the fact that this is just inherently racist, that’s what you would do.
Another problem with broken window policing is: where does it stop? Who gets ensnared in this? There is a wonderful report by Harry Levine from Queens College. He looked at summonses and tickets for riding a bike on a sidewalk over a five year period, I believe, in Park Slope. There were about, on average, ten tickets given a year for riding a bike on the sidewalk in Park Slope. In East New York, there are about 2,000.
Why do you have 2,000 tickets in New York and ten in Park Slope? Well, they don’t say that it’s because there’s more people riding bikes on the sidewalk in East New York than Park Slope. The NYPD’s reaction to a number like that is, they say it’s because more people want more police in that neighborhood. So if I had a cop on every block, you’re likely to see somebody riding a bike on the sidewalk. What it elides completely is that nobody in that neighborhood is saying arrest my son, arrest my brother for these minor events.
Has this trajectory increased consistently, or have there been moments where broken window policing here was pushed back?
There’s been virtually no meaningful pushback from the judicial apparatus — from the courts, from the prosecutors. Communities have raised concerns about this from the inception. The voices were never heard until it just had to be this sort of crescendo, until the numbers became incomprehensible.
Here’s an analogy for you: For the longest time, people were complaining about stop and frisk, yet our police commissioner, whether it’s Bratton or Kelly, would actually have press conferences and say with pride that the current stop and frisk numbers dramatically exceeded prior months or years. Then it finally got to a point where enough people actually heard the impacted communities and said wait a second, we think that’s out of control.
And unless you’re the affected community, the rest of the population was thinking well, crime is going down, this is wonderful. To combat broken windows, we need to think hard about why and how stop-and-frisk went from a heralded policing tactic to a mayoral issue with candidates suddenly stepping over each other to say how quickly they would abandon stop-and-frisk.
So when you talk about pushback, it’s a matter of identifying at what point in time for the voices of the affected communities were finally heard such that even the politicians, even the mainstream media, had to say this isn’t warranted, this has to stop.
Ending broken windows presents an ongoing challenge because our mayor still says it’s important and it’s wonderful, and chooses to overlook the damage it does to people. Maybe the pushback he’s currently getting because of the interrelationship between broken windows and deportation will lead to change, but it hasn’t happened yet.
Imagine I’m riding a bike on the sidewalk. A police officer sees me in East New York. Instead of asking me to get off the sidewalk, the cop chooses to stop me. Let’s say I happen to be undocumented. You can see how this plays out and broken windows is complicit. You can rail against Donald Trump all you want, but the more people you stop, the more you funnel into deportation proceedings.
So will this be the sort of wedge issue, the way in to get more elected officials running against broken windows?
Anything else that demonstrates the extreme prejudice?
Here’s a great example. Before broken windows policing, if someone was sitting on their porch with a beer, they’d be told hey, go inside or put it away, or nothing would happen. Now, it’s enforced with arrests. As that’s going on in certain neighborhoods, then consider Shakespeare in the Park and everyone having chardonnay, or it’s at the beach and the Rockaways where you have a lot of police officers and firefighters having July 4th celebrations with open containers. Do you think those people are getting stopped and arrested?
So if you have your brownstone in a certain neighborhood, you can have a barbecue, and have your friends sitting right out front having glasses of wine. No one’s going to say anything to you. In another neighborhood, it’s 90 degrees, you’re having a drink on the steps, you’re going to get a ticket or arrest. It happens all the time. It still does, the numbers are staggering.
There are many more examples of the pernicious effects of broken windows and how it is a tool to manage poverty, particularly poor people of color. Just consider the usual number one arrest charge in New York City — theft of service or “fare beating,” a crime of poverty. Many people buy their Metrocards because they can, and there are other people for whom that is a struggle. So who gets ensnared in farebeat arrests? And how do people get caught? Police officers are stationed at various subways at various times hidden on the platform. Wouldn’t it be smarter, if you were really all that concerned, to put them in front, to stop it from happening?
We had mini experiment for about a month when the NYPD was very upset with the mayor early in his term. Remember they turned their backs on him at a police officer’s funeral. The police department actually issued a slowdown and I wrote something about this for the Gotham Gazette. They basically said to their members, look, only arrest them if it’s “absolutely necessary,” which I found to be a very bizarre statement because shouldn’t that always be the case; why arrest if it isn’t necessary?
Anyway, broken window policing ended for a month, the numbers dropped. Now granted, it’s only a month, but was there any spike in crime? No. So let’s experiment. Pick out one arrest charge, pick out precincts. Go to Brownsville, go to East New York and say you know what, for this month, two months, no tickets, no arrests, nothing for fare beating, or riding a bike on the sidewalk or marijuana and let’s see if crime increases? And if it doesn’t, which it wouldn’t, shouldn’t that make us think we don’t need to be arresting so many people for minor crimes?
Shouldn’t there be some type of empirical analysis as opposed to the commissioner and mayor just saying it works, it works, it works. There has never been any valid serious study that attributes the drop in crime to broken windows policing. None, zero.
Have you seen any data around neighborhood experience in the last few decades of significant demographic changes, and how it’s affected policing in those areas, broken windows policing specifically?
It’s just the impact of gentrification. Some people will insist that gentrification is at the front end. See that broken building is enforced, get everyone out of here, very heavy enforcement pushing people out. Then the area begins to gentrify and as soon as it’s gentrified, there is less broken windows policing inflicted on those who now live there.
It’s hard to argue that there’s no cause and effect, both the immediate front end as well as once a neighborhood has gentrified or changed, on police enforcement. Look at broken windows policing through its entirety. Here’s one thing that’s never changed, just like stop and frisk — and we have the data on this — who is caught up in broken windows policing? It’s always people of color. It’s in the 90th percentile, same with stop and frisk.
So as neighborhoods change, that fact remains the same. Broken windows moves depending on how that community is comprised.
What’s the most egregious single example you’ve seen in the last decade?
The first time I represented someone arrested for jaywalking. I was like, you’ve got to be kidding. Then I heard of someone arrested for taking two seats on the subway. But then the first time I heard of someone being arrested for having an open container of alcohol, I also thought, really? Arrested? It’s just this hyper-aggressive policing that targets certain communities.
I don’t even know where to begin to say what’s the most egregious. The policy and practice is egregious.
You’ve identified major failures with pass-through prosecution and how the ECAB [Early Case Assessment Bureau] deployed a phone-it-in approach — assigning junior people to effectively decide the future of the people roped in by broken window policing. How do the problems in policing translate to problems in prosecuting? Who’s responsible?
I think the responsibility lies with the people at the top, the district attorney who has to define what they believe is their role. And when district attorneys think, as some of them have said publicly, that they’re so pleased to work hand-in-glove with the police department, they are exacerbating the problem. They’re abdicating their responsibility, because truly their responsibility should be as gatekeeper, as a check on police.
Once someone has been arrested it is the prosecutor’s duty to determine whether it’s constitutional, whether there’s sufficient proof of guilt, and whether it’s appropriate. There’s so much discretion given to the police, and there is also much discretion given to the prosecutor. To date, they have abdicated their most fundamental responsibilities and have been happy to prosecute all the broken windows arrests of people of color that comprise their dockets.
It apparently doesn’t matter if the racial disparities are off the charts. Doesn’t matter that it’s destroying lives, that it’s that many people with arrest records, conviction records, leading to deportations. They can’t just say, it’s not me, I didn’t arrest them. Well, you’re the one who can stop that person from entering the courthouse.
To show how the abdication has been so widespread, several years ago when Kenneth Thompson was the Kings County district attorney, he announced that he was not going to prosecute certain marijuana cases. He actually received praise for doing something that should have been done, and in fact, the irony is when you read his policy, it was riddled with exceptions.
So what would happen if prosecutor came in like they’re trying to do in Philadelphia, like Larry Krasner is trying to do in saying, “No. I don’t want to see any young Black or Latino kid charged with that. A 16-year-old charged? No, I’m not gonna prosecute it.” They have the authority and power to do it, and they have determined that they have to prosecute the overwhelming majority of arrests that are presented to them. And they’ll tell you, “Oh, we decline to prosecute, ‘DP’, many cases.” Well, if there are anywhere from 250,000 to 300,000 arrests a year, they’re not making a dent. I think they either encourage the police to do what they’re doing or they absolve the police of any responsibility for what they’re doing. And at some point they have to step up and show some courage.
How can we address the database? Because most of that happens before or separately from the prosecution. So how do we address that aggressively, through the D.A.?
All we can hope is that substance will follow form or form will follow substance. If the D.A.s keep saying don’t bring these cases to me, would it eventually make the police, the NYPD stop? First of all, you need a mayor, leadership at the top. After all, it’s the mayor’s police department — he can direct what they do.
It’s not the mayor’s district attorney’s office. That’s an elected official, but he appoints the police commissioner. Someone has to step up and show some leadership.
The question is whether Krasner’s approach is affecting policing in Philly. But can the mayor, can the district attorney have an impact? Absolutely.
To dismiss and seal, not just seal.
To dismiss and seal.
When policing ends and prosecution begins, what’s happening now with the D.A. tradition of deferring to police?
There was a series of articles in The Times not that long ago about this recurrent problem with police perjury. I think you should look at it this way: There are 35,000 police officers. Pick it yourself, what percentage of those folks might be willing to lie on an arrest report?
If you said, I’m going to give the NYPD the benefit of the doubt and say it’s only 10 percent, all right, 90 percent are fair and honest, fine. That’s 3,500 police officers — you know how many arrests that is? So what that says to me is if I’m the district attorney I have to figure out how to make sure that every arrest that lands on our desk is valid.
How are we going to make sure that there’s no exaggeration, no lying, no deliberate misconduct? What I’m not going to do is treat that process as rote and mechanical, and have it run by inexperienced people who let police officers phone it in or fax it in. I’m going to train my lawyers to try and ferret out any sort of inconsistencies, any incredibility. I’m going to have my most senior people at the front end. I’m going to demand the police officer be face-to-face across from me. I’m going to tape the interview. It will be under oath, subject to perjury.
I will insist that the police officer bring all the paperwork relating to the arrest as well as any 911 and radio calls and any videotape. I will treat every arrest with a great deal of skepticism to do whatever I can to ensure that it is truthful before I go ahead and negatively impact someone’s life by filing any charges, no matter how seemingly “minor” they appear — they are in no way minor to the person who is charged.
We have this documented and recurring problem of police perjury — what are the prosecutors doing about it? Short answer as far as I can tell right now is nothing. It’s the same old system. In fact, the system gets more and more removed as police officers can now literally phone in the facts of their arrests as opposed to having sit face-to-face across from a prosecutor. There was a time in the Brooklyn District Attorney’s office where they actually had per diem people who weren’t even lawyers writing up the complaints. Suffice it to say they don’t seem to be taking their gatekeeping function all that seriously.
If the prosecutors were serious about rooting out perjury and only prosecuting valid cases, they would turn over all the paperwork, radio calls, videotape and notes from their interview with the arresting officer at the accused’s very first appearance before a judge. This isn’t a game and they should be transparent, let alone fair. And yet they oppose virtually any kind of reform of New York’s restrictive and archaic discovery laws regarding what material they must provide to the accused.
So the arrests are happening and the D.A. has to deal with it in one way or another, the solution is just to dismiss and seal to a large extent, correct?
For the broken windows, the nonsensical cases, absolutely.
Right now?
I would say yes. I would say take a stand. A former student of mine worked in the federal government for the U.S. Information Agency. Whenever foreign countries wanted to look at criminal justice systems and were coming to New York, she’d send them to me. I had people from so many different countries, Japan, China, Azerbaijan, Argentina, Korea — ministers of justice, who wanted to observe American criminal justice.
We’d go to arraignments in Manhattan. We’d sit there and watch for a day or four or five hours. Without fail, they were all struck by the reality that virtually everybody they saw being prosecuted was a person of color.
After watching arraignments, one lawyer from Japan asked me if we had observed the only courts where people arrested are brought into in Manhattan. I said that was true, we watched the only two courts where everyone arrested in Manhattan is brought before a judge. His follow-up question captured the entire process perfectly. He asked, “If that’s true, then where do they take the white people?”
If you’re the D.A., you have to be thinking there’s something fundamentally wrong here. What am I doing about it? Do I bear any responsibility for the fact that in the Manhattan prosecutor’s office we prosecute almost exclusively people of color? That’s what I do. You want to be a Manhattan D.A., you know what your job is, your job will be to prosecute people of color. That’s just a fact.
And shouldn’t you think to yourself, well, I am going to at least try and lessen the impact of that as much as I can by dismissing the minor stuff?
Are there other groups working to address this, law firms, legislators?
Well, there are legislative reforms that are long overdue and would help to a degree. For example, discovery reform. District attorneys, particularly in Manhattan, would rather say “I’m not giving you anything. I’m going to hold on to it as long as I can; you just have to trust us that we’re combing through the material very carefully to make sure that everything is in order.” I think that’s incredible hubris.
Why don’t they just say here, here’s what I have. What are they afraid of? To the extent they say we don’t want the victims’ addresses known, then go redact the victim’s address. That’s what they do in other jurisdictions.
What approaches could New York D.A.s specifically address or at least acknowledge?
The NYC D.A.s — particular in Manhattan, again — have the bully pulpit. And the question is, are you a reformer or not? To me, someone who’s elected as a reform candidate, an aggressive district attorney, should be at the forefront saying not only do I support things like bail reform, and discovery reform, and speedy trial reform, I’m going to come up with reforms of my own that I think everybody will embrace.
Instead, for the most part, they’ve been resistant to reform. There’ve been roadblocks to reform. Discovery reform is one of the larger issues. Different counties in NYC treat it differently. Why does Manhattan cling to this idea that we’re not going to turn over discovery unless and until the very last minute that we have to?
Seems even people elected as reformers are proceeding with the status quo. What organizations can continue to apply pressure?
A lot of people have said this for the longest time, and I think now we have proof that there’s a voice in the community that must be heard. Ultimately, there will only be change if those most affected are out front.
Take the movement to close Rikers Island as an example and the lead role played by organizations like Just Leadership USA. They and other organizations gathered the voices of affected communities, voices that are so authentic that even the mainstream media had to pay attention. Elected officials had to pay attention. And people who cared about it, all with experiences, wouldn’t let go.
Or look to the organizing work of Communities United for Police Reform around stop and frisk and policing generally. There’s a growing number of community groups and voices across the city that are regularly organizing.
If there’s ever going to be any change, ultimately, that’s where it has to be led. If the reform movement gets in the hands of the wrong people, those who aren’t directly affected, the solutions inevitably end up being far different from what people actually want.
People have to be at the table who are most affected. Best example, and we’ll see how it works out, is from the stop and frisk litigation. Not only did a judge find there were rampant Fourth Amendment violations, and also rampant equal protection violations, but the judge said as to a remedy, I’m ordering this process where community groups have to be at the table, and have at a minimum, an equal voice.
You’ve written about closing down altogether the Criminal Court, and about closing Attica along with Rikers. What is the solution, where do we need to have fully addressed broken windows policy?
Alex Vitale has written a wonderful book about how we have to reimagine, reconstruct, re-everything how we think about policing and the role of the police. What is it we want and don’t want the police to do. Otherwise, we end up tinkering with a bad system and making at best marginal improvement.
So when I wrote that piece about shutting down the Criminal Court, that was my way of saying I’ve seen various reforms and yet it is the same horrific system it was 35 years ago. It has to be completely overhauled and focus on what it is supposed to do — assess whether every arrest was constitutionally legal and whether there is sufficient evidence of guilt beyond a reasonable doubt. The Criminal Court pays scant attention to those two vital functions.
A few years ago the mayor’s office came out with a plan to reform parts of the criminal justice apparatus and called it “Justice Reboot.” My students found that title very funny and very telling. Their point was, don’t just shut it down and start the same thing over again. Can we reimagine this entire process and create something entirely new? What is the role of the district attorney? What’s the role of the police? What’s the role of the criminal court?
My focus is the criminal courts. Our courts regularly just process broken windows policing, and no one knows anything about the case, there’s no discovery, and there’s an avalanche of guilty pleas. So as much as I want discovery reform, bail reform, in the end you’re reforming a system that isn’t doing what it should be doing.
So it’s less about reboot and more about addressing justice and how we define that?
For example, what is the purpose of policing? We can talk about broken windows and say don’t arrest people for riding a bike on the sidewalk, but we have 35,000 police officers and that number isn’t shrinking any time soon — what are they being told to do and how are they being evaluated? We have all these district attorneys, what are they being told is their job? How are Criminal Court judges evaluated? That’s what we have to do every step of the way.
We have to start there, as macro and as unattainable as it sounds.
How can we change the macro?
I think we have to think, in particular for the court, the police and the district attorney, about transparency and accountability. Police officers, the commissioner — how do we hold them accountable? What’s the measure?
Same for the district attorney. How do you determine if the district attorney’s office is doing a good job? That would get us to the macro because this is how we’re going to evaluate how you’re doing. We’re not going evaluate officers on number of arrests or tickets issued. Okay, then what are you going to evaluate them on? Community reactions? Are there going to be surveys, analyses of the constitutionality of their arrests? There has to be some other way than a blunt instrument.
When lawyers think of an equal protection case, they’ll think about the famous case of Brown v. Board of Education, which is about separate and unequal schools. That was a massive case, about public schools in America. Or you’ll hear about marriage equality and people say right, equal protection. Equal protection is massive cases that highlight these fundamental problems.
In the stop and frisk case, most people latch on to the fact the judge said there were search and seizure problems. The other part the judge said, there’s equal protection. The New York City PD was engaging in ongoing equal protection violations. It’s astounding. In a city that’s supposed to be the most progressive in the world. And no one has yet fully come to grips or addressed that. Nobody wants to.
We addressed the search and seizure. Stop and frisk, they’ll fill out a form, they’ll get better training. What about the equal protection? By equal protection, the judge said stop and frisk is being inflicted upon almost exclusively people of color. So right here in New York, you start there and say what are we doing with policing?
And we haven’t. How can that be? That should’ve just caused a hue and cry from every district attorney, every police officer, the mayor. Where everyone says, I’m going to make sure that we address that in the most profound, fundamental way. I’m going to try everything. If it doesn’t work, I’ll try something else. And as far as I can tell, go back to the district attorneys and Criminal Court, not a single thing has changed in light of that finding, nothing.
I’d love to put it to them and say, what have you changed in light of that incredible finding? Nothing, so… it’s the same old same old.
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