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New York’s Department of Overcorrection

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New York’s Department of Overcorrection

How the growing trend of criminal-justice reform for its own sake will make policing riskier—and the city less safe Summer 2020
New York City Reborn
Public safety
Politics and law

The devastation that the novel coronavirus inflicted on New York’s economy and public health gave way to another crisis testing the city’s mettle this spring: its share of a nationwide wave of protests and riots sparked by the death of George Floyd, who died with his neck pinned under the knee of a police officer in Minneapolis. The physical and psychological damage that Gotham suffered was substantial—and could prove even more consequential for the city’s long-term outlook than Covid-19.

The mayhem and violence, televised to the world in late May, struck across the city. Along New York’s famed Madison Avenue, a coordinated looting campaign left many stores emptied. In lower Manhattan, an officer was severely beaten with a fire extinguisher, his ordeal temporarily memorialized by bloodstained concrete. In Brooklyn, police officers were targeted with Molotov cocktails. In the Bronx, a sergeant was mowed down by fleeing looters.

New York’s recent bout with violent chaos was similar to episodes that have taken place in Chicago, Baltimore, and Ferguson, Missouri, in recent years. These events mark a potential turning point in the city’s history, when New York may once again face a period of resurgent crime and disorder. They also serve as a reminder that, with enough momentum, narratives, including demonstrably false ones, can overwhelm empirical realities and drive bad policy—a tragic development that may already be making the city less safe and policing riskier.

The shooting of Michael Brown by a Ferguson police officer gave rise to a rallying cry, one heard some six years later during the George Floyd protests: “Hands up—don’t shoot!” That motto has maintained its potency for the better part of a decade, even though a thorough investigation by President Barack Obama’s Department of Justice found that “[w]itness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender . . . [we]re inconsistent with the physical evidence.” The DOJ’s report also observed that the available evidence “corroborate[d] virtually every material aspect of [Police Officer Darren] Wilson’s account.”

Michael Brown’s death didn’t just give birth to a catchphrase. It also reenergized a radical criminal-justice reform movement responsible for recent electoral and policy shifts in cities around the country, involving everything from bail and pretrial discovery to pedestrian stops and “restorative” diversion programs. Nationally, one of the most visible policy shifts came in the electoral success of the “progressive” prosecutor movement, inspired by the backlash that followed then–St. Louis County prosecutor Robert McCulloch’s decision not to bring criminal charges against Officer Darren Wilson, citing much of the same evidence that later led the Obama DOJ to the same conclusion. McCulloch lost a primary in his 2018 bid for reelection to Wesley Bell, who cited the Brown case as the key factor in his decision to run.

Bell’s is just one of many successful electoral bids—often helped along by funding from left-wing billionaire George Soros—in district, county, and state attorney races around the country. Cities with progressive prosecutors include Chicago (Kim Fox), San Francisco (Chesa Boudin), Boston (Rachael Rollins), Philadelphia (Larry Krasner), and many others—including New York.

In Brooklyn, District Attorney Eric Gonzalez—elected in 2017 after a stint as acting district attorney—has used his office essentially to decriminalize a range of misbehavior and to pursue decarceration through various means, including supporting parole, in most cases. Gonzalez is also committed to pretrial diversion. One such diversion program shields those arrested for “certain minor offenses” from prosecution by letting them attend an art class at the Brooklyn Museum instead of going to court. Gonzalez hasn’t restricted pretrial diversion to petty thieves and vandals; he has also diverted a number of gun offenders—a move followed by an uptick in Brooklyn shootings.

Those diversions drew criticism from Mayor Bill de Blasio, who hasn’t exactly been “tough on crime” himself. After taking office in 2014, de Blasio chose not to pursue a pending appeal of a federal district court ruling against the NYPD in a lawsuit alleging that the department had systematically violated the constitutional rights of a class of plaintiffs through its stop, question, and frisk practices. The city’s “stop and frisk” practices did need changing; and the mayor’s decision was followed by a sharp decline in reported stops. But activists remained unhappy, claiming that officers were still benefiting from grants of legal consent based on suspects’ ignorance of their right to withhold it. So in 2017, de Blasio backed a city council legislative package called the Right to Know Act. Among other things, the act requires the NYPD to inform subjects proactively of their right to refuse consent to a search. The council also passed legislation aimed at closing the city’s jails on Rikers Island and replacing them with a borough-based system, the capacity of which would top out at 3,500—or just half the city’s jail population at the end of 2019 (already down from almost 17,000 two decades earlier).

Doing his part to help cut jail admissions, de Blasio spearheaded the expansion of a supervised release program of his own last year—the Youth Engagement Track—aimed at tripling the number of teenage offenders (including those charged with first- and second-degree robbery, assault, and burglary) who avoid pretrial detention. As for young men already in pretrial detention, the mayor has phased out the use of solitary confinement (“punitive segregation”) for jail inmates under 21.

Albany, too, has been busy. Governor Andrew Cuomo and the state legislature enacted sweeping bail and discovery reforms that took effect in January 2020; and in 2017, the governor enacted the state’s Raise the Age law, upping the age of criminal responsibility to 18, thus making it much harder to try 16- and 17-year-olds as adults, no matter the crime. Cuomo has also overseen a steady decarceration effort, shuttering 17 state correctional facilities—more than “any governor in history,” he boasts.

“As of August 16, New York City murders are up 30 percent, year-to-date.”

Early indications of the effects of these reforms should give us pause. The statewide bail-reform initiative led to a sharp jump in the number of pretrial defendants avoiding jail stays and, by extension, a sharp decline in the city’s jail population. This was by design. But through February 2020—two months after the reform took effect—the NYPD reported that 482 pretrial defendants were charged with 846 crimes, of which 299 were among the seven index offenses tracked by the department. Some observers connected these numbers, and at least some of the broader increase in citywide crime, to the bail-reform initiative. Such a link finds support in academic literature, including a 2016 study by researchers at Princeton, Stanford, and Harvard, which found that pretrial release increases the likelihood of rearrest prior to case disposition by more than 37 percent.

The push for more lenient parole decisions has been followed by a jump in the percentage of shooting suspects out on parole. According to a May 19 New York Post report, NYPD data revealed that nearly one in five (19 percent) of those suspected in or arrested for 2020 shootings was out on parole at the time—up from 12 percent in 2019.

And since Mayor de Blasio began curtailing punitive segregation for younger jail inmates at the end of 2014, inmate-on-inmate violence has soared to almost double the number of fight and assault infractions reported two decades ago, when the city’s jails housed far more inmates. In 1998, with more than 17,500 inmates packed into city jails on any given day, there were 6,458 violent assaults. By the end of 2019, the average daily inmate population had dropped to 7,938—yet behind-bars violent-assault numbers had risen to 12,008. Undeterred by the data, de Blasio announced on June 29 that the city would soon ban punitive segregation altogether.

The general crime picture is troubling, too. As of August 16 (the most recent available data as of this writing), New York City murders are up 30 percent, year-to-date; burglaries are up more than 43 percent; auto thefts by 58 percent; and the number of shooting incidents and victims has jumped by more than 82 and 88 percent, respectively. Compared with the same 28-day period in 2019 (ending August 16), murders and shootings are up 53.6 percent and 153.8 percent, respectively. The seven-day period ending on August 16 saw 63 shootings—a 142.3 percent jump, compared with the same week last year, in which 26 were shot. These numbers come on the heels of the worst June on record for shootings since 1996, as well as one of the worst July Fourths in recent memory. Over that night, more than 41 people were shot across the city, and that week marked the third straight seven-day period in which shootings were at least double what they were during the same week last year.

These increases do not appear to be aberrations. After two straight years with fewer than 300 murders, in 2017 and 2018, homicides have been on the rise over the last 18 months. The city closed 2019 with 319 killings, up from 292 the year before. This year looks to be on pace for another jump in the body count, despite citywide stay-at-home orders and economic lockdowns that, all else being equal, would have led many to predict a drop in violent crimes, except perhaps for those stemming from domestic violence. All else has not remained equal, however—and while correlation should not be confused with causation, the crime data provide at least circumstantial evidence that the effect of recent reforms may not be benign.

In today’s adverse environment, police departments are facing recruitment shortages and an exodus of officers taking early retirement. (JOHN LAMPARSKI/GETTY IMAGES)

All these reforms still have not satisfied activists. Even as the NYPD reports sharp declines in stop activity—with arrests down 37 percent since 2013 and use of force more broadly declining over the last four decades—activists seized on the Floyd killing to renew their campaign against policing as a corrupt institution in need of radical change. Policymakers obliged them. On June 12, Governor Cuomo signed ten police reform bills, which, he said, would “take us one step closer to righting the many injustices minority communities have faced because of a broken and unfair system.”

The laws require that courts, police departments, or individual officers in the state do the following: report on the demographic breakdown of those charged with “low-level” offenses; file written reports within 48 hours of discharging a firearm, whether on- or off-duty; deliver medical and/or mental-health attention to suspects in custody; refrain from using choke holds; publicly disclose the disciplinary records of officers; wear body cameras; refrain from “interfering” with citizens recording police; and provide emergency medical attention to suspects in custody. Two other bills create an independent office to assess law-enforcement practices, as well as a private right of action in tort against those who place false or “hate-based” 911 calls. Some of these laws carry civil or criminal penalties, adding to the legal risks that cops already face at a time when activist prosecutors and plaintiffs’ lawyers have police in their sights.

Increasing the risk profile of a career in law enforcement will likely have major negative effects—among them, declining willingness on the part of police to suss out crime. They will be more likely to revert to a reactive posture, simply responding to calls. This more passive posture will not arise from hostility to their communities, as some antipolice activists suggest, but rather out of fear of becoming, as many officers articulated in focus groups conducted by Harvard economist Roland Fryer, “the next ‘viral’ sensation.”

Drawing national ire is just one of the growing risks associated with policing. As some criminal-justice reforms make streets more dangerous, cops will face more threats to their safety. As prosecutors feel more public pressure to bring indictments against police—even when evidence doesn’t support doing so—and departments are urged to fire officers embroiled in controversial cases, cops’ legal and financial risks will also mount.

Few seem to have considered whether making a career in policing significantly riskier will diminish its attractiveness to qualified potential applicants. Increasing the transaction costs of policing by subjecting officers to more physical, legal, and financial risks will eventually be reflected in what kinds of people remain willing to do the job. One’s assessment of whether a particular risk is worth taking is partly dependent on one’s options. As policing becomes a less attractive proposition, those with other options will be inclined to look elsewhere—and some of the progress that has been made in professionalizing policing, particularly in New York, may be reversed.

I seriously considered a career in the NYPD but opted instead for law school and a career in public policy, a choice significantly influenced by a retired cop’s (my father’s) counsel. His warning was delivered frankly, with a singular focus on the risk of having to use force in a way that becomes the object of activists’ ire. In every conversation we’d have about the job—one he spent more than two decades doing—he’d ask some version of the following question: “What happens when your fight with a suspect goes viral and you end up without a job, and in need of a lawyer?” His advice seems to have proved prescient.

The concerns articulated in Fryer’s focus groups will likely deter high-IQ, highly educated, and more risk-averse men and women from pursuing careers in law enforcement. In fact, this seems already to be happening. The Police Executive Research Forum recently issued a report documenting “a workforce crisis”—a troubling trend of recruiting shortages in departments around the country. Not only are fewer people applying to be cops, but more cops are leaving the job “well before they reach retirement age.”

You wouldn’t know it by listening to the crowds that took to the Big Apple’s streets this past May, but New York City and State have been busy on the police-reform front for years. The crime increases that have followed the passage of these measures are concerning, to say the least. The renewed pushes for further reforms in the wake of George Floyd’s death in Minneapolis are understandable, in an emotional sense. And some aspects of policing do require legislative adjustments. But reform for its own sake is not a risk-free endeavor—as the experience of police, and citizens, in New York and other American cities is now reminding us.

Top Photo: A burned NYPD vehicle on Broadway after a night of mayhem (RICHARD LEVINE/ALAMY STOCK PHOTO)

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