Photo by John St John

Last week, the New York City Council announced that it was preparing legislation to reduce the penalties for a host of “minor crimes.” Open urination, drinking alcohol in public, riding bikes on the sidewalk, and other public-order infractions like subway fare-beating would no longer be considered criminal violations but rather civil offenses, akin to parking near a crosswalk. Instead of receiving a summons to appear in court, violators could pay a fine through the mail.

Proponents offer a simple explanation for why the changes are necessary: the negative effect that interaction with the criminal justice system has on those who receive summonses. Council Member Jumaane Williams has separately bemoaned the arrest of people for “minor infractions” in the subway on the grounds that “an arrest can cause significant stress” for the arrestee, as well as imposing “financial hardship.” The New York Civil Liberties Union suggests that “citations require fines, court fees and in-person court appearances requiring an individual to take off from work,” and that “collateral consequences can be far reaching . . . ranging from eviction from public housing to employment discrimination, and even deportation.”

This “cascading effect” argument regarding quality-of-life violations is popular among opponents of Broken Windows policing. To hear them tell it, the following scenario is all too common: a law-abiding citizen gets ticketed for being in a park after dark; he loses his job because he had to go to court; he goes to jail because he can’t pay his fine; he gets evicted; he can never get another job; he robs a bank; and so on. In reality, however, as New York State Office of Court Administration data demonstrates, 40 percent of all summonses are dismissed and another 20 percent are adjourned in contemplation of dismissal, which essentially closes the case, assuming the defendant stays out of trouble for a period of time—typically six months.

According to the most liberal members of the City Council, however—the soi-disant progressive wing—the high rate of dismissal demonstrates that the summonses shouldn’t have been issued in the first place. “Broken Windows is breaking our courts,” said Council Member Rory Lancman, chair of the committee on courts and legal services, at a December hearing. The solution to the problem of hundreds of thousands of instances of antisocial, criminal behavior is, it seems, to raise the bar for what constitutes a crime—reframing crimes as “civil violations.”

Council Member Vanessa Gibson, chair of the committee on public safety, which has oversight over the NYPD, claims that young people of color are being “disproportionately impacted” by open-container laws. “I’m all about prevention,” she says, “and I want to prevent people from going to summons court in the first place . . . the majority of [summonses] are given for open containers; that to me says that there is a broader issue that doesn’t have anything to do with summons court itself, but other policy and enforcement issue that we have to deal with.” To criminologists and social-deviance theorists, “prevention” means diverting people into positive behavior before they become anti-social; for Council Member Gibson, however, “prevention” means keeping youths out of jail by not enforcing existing laws.

According to Brooklyn district attorney Ken Thompson, the issuance of summonses to young black and Latino males undermines the legitimacy of the criminal justice system itself. “Because people of color appear to be receiving a disproportionate number of summonses,” writes Thompson, “the public naturally begins to question the fairness of law enforcement and the criminal justice system as whole.” Critics like Thompson focus on the racial disparity of outcomes (arrests and summonses) and take for granted that every demographic segment commits crimes at the same rate. They don’t. Thompson and others thus conclude that arrest outcomes must be driven by either the personal racism of the officer or by the systematic racism of society.

Death penalty opponents have long argued, with some credibility, that the threat of capital punishment doesn’t deter people from murdering others. Now Broken Windows critics are applying that logic to cover all crimes. Just as capital punishment is cast as irrational barbarism, so open-container violations are seen as a way for society to criminalize ordinary behavior, disciplining and brutalizing certain populations. On this view, punishment never deters crime, because crime is always a function of other social forces such as income inequality or structural racism.

The fact remains, however, that Broken Windows policing has been proven to reduce crime and public disorder, both by locking up violent criminals who happen to get caught drinking in public or jumping a turnstile and by imposing unpleasant consequences on the perpetrators of petty offenses. Council Member Mark Weprin of Queens, a Democrat and self-described liberal, is baffled by his colleagues’ failure to understand the logic of deterrence. “My impression is that public urination is not benign,” says Weprin. “If word gets out that it’s okay to jump turnstiles and urinate in public, that the worst that could happen is you may get a ticket, then it makes sense that more people will do those activities.”

The offenses in question, like riding a bicycle on the sidewalk or drinking beer in public, are not major crimes. But the existing penalties—typically a fine at worst—are not major, either. And what, after all, is a “minor crime” but a crime that happened to someone else? A city’s quality of life, especially for residents of lower-income neighborhoods, is enhanced by the knowledge that the police won’t ignore anti-social behavior. Nobody wants New York to become Singapore, but most sensible New Yorkers do want a livable, family-friendly city whose culture is not defined by its most disorderly elements.


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