Why Manhattan isn't going to arrest people for littering, public drinking

The NYPD’s overhaul of how to treat minor offenses such as public drinking and taking two seats on the subway represents a tap on the brakes for the nation’s largest and most influential police force.

When New York City officials announced this week that Manhattan police would stop arresting most of the scofflaws who littered, drank in public, or took up two seats on the subway, and give them summonses instead, they were in many ways addressing a lot more than such penny-ante violations of the law.

After all, from the outrage over stop-and-frisk to the chokehold killing of Eric Garner, who died while being arrested for allegedly selling “loosey” cigarettes for 50 cents apiece in 2014, encounters between New York police officers and people on the street have been as scrutinized as any in the nation.

So in some ways, the New York Police Department’s overhaul in the arrest policy for such minor offenses – which will begin as a pilot program in Manhattan and reduce the number of the 10,000 people cuffed, booked, and processed by the borough’s district attorney – represents a tap on the brakes for the nation’s largest and most influential police force.

“There’s been a very definite shift in the NYPD,” says David Kennedy, director of the National Network for Safe Communities at John Jay College of Criminal Justice in New York. “And this is to recognize that arrests and everything that comes from it – being charged, spending time in jail, sometimes getting convicted and spending time in prison, probation, or on parole – comes at a very high cost.”

Indeed, since Mr. Garner’s death and the emergence of the Black Lives Matter movement later that year, there have been bipartisan calls to address the stark racial disparities in the country’s criminal justice systems – and the aggressive policing in high crime neighborhoods that has led to tense confrontations between minorities and police officers on the streets.

Even before the tumultuous summer of 2014, New York’s black and Latino communities had long bristled at the intense focus on such minor infractions in their communities in an effort to reduce more serious crime – the hallmark of the “broken windows” theory, the legacy-defining policing techniques pioneered by Commissioner Bill Bratton decades ago.

The shift in thinking today, says Professor Kennedy, “is really less about the direct financial costs than it is about the lasting burden on individuals and families and communities that comes with lots of people having criminal records. It’s the fines, the warrants, the anger at the police department – it’s all kind of things that police especially didn’t pay attention to for a long time. And now it is.”

As the public has focused on the police killings of unarmed black men over the past two years, some scholars point out that the disparities may be less about racism per se than about such structural policing techniques. As Harvard scholar Sendhil Mullalanathan pointed out last year, “having more encounters with police officers, even with officers entirely free of racial bias, can create a greater risk of a fatal shooting.”

On Wednesday, Mayor Bill de Blasio likened the structural change to a similar overhaul in the way police handled marijuana arrests last year. More than 85 percent of those arrested for having small amounts of pot in New York had been black and Latino young men, despite the fact that whites smoked the drug at equal rates, a racial disparity the mayor called “unjust and wrong.”

Yet while the overhaul in arrest policy could help ease back on the city’s famously aggressive policing mentality, many advocates for reform are concerned that shifting to summonses may not affect the disparate rates of encounters.

Though marijuana arrests have fallen dramatically, for instance, the city long known as the marijuana arrest capital of the world has still booked thousands of mostly black and Latino men for misdemeanor possession over the past year, critics of the department say.

“The city is not resolving the disparities and discriminatory treatment faced by some communities, but instead is only changing how they manifest themselves,” says Alyssa Aguilera, co-executive director of VOCAL-NY, part of the coalition Communities United for Police Reform.

Race was not the explicit issue this week as Mayor de Blasio, Commissioner Bratton, and Manhattan District Attorney Cyrus Vance announced with much fanfare the change in policy for these low-level infractions, which they couched as a way to improve the efficiency of the NYPD.

“By ensuring courts are not unnecessarily bogged down with minor offenses committed by those who pose no threat to public safety, we help focus police and prosecutorial resources on those who commit serious crimes,” District Attorney Vance said in a statement. He added that the policy would unburden police officers from hours of processing such cases and focus more on patrols and investigations, as well as unclog the court system of many of the 10,000 low-level cases it sees each year.

“And by reducing unnecessary incarceration, we make our criminal justice system fairer for all New Yorkers,” he said.

This emphasis on fairness also comes as New York, for two straight years, has seen record lows in crime, however. And Bratton has likened the changes to a “peace dividend,” and not an end to his broken windows theory of policing.

“Less medicine for a patient that’s much better,” he said at a press conference Wednesday. “Broken windows is here to stay. But it’s the amount that we will constantly adjust to meet the existing circumstances.”

Some advocates see potential progress. The initiative could reduce some of the problems, but “we need to make sure that the discretion to arrest is narrow in order to eliminate the racial disparity,” Johanna Miller, the advocacy director for the New York Civil Liberties Union, told The Wall Street Journal.

Others, however, are worried that the overhaul is simply an internal administrative change that doesn’t address the deeper issues involved in police confrontations, including summonses themselves, which also show a dramatic racial disparity. Some 81 percent of the 7.3 million people issued summonses for offenses such as bicycling on the sidewalk and spitting between 2001 and 2013 were black and Hispanic, according to a 2014 study by the New York Civil Liberties Union.

De Blasio, who has scaled back his efforts to reform the NYPD after vehement opposition from the department, has distanced himself from current City Council efforts to pass the Right to Know Act, which would require officers to identify themselves and provide the officer's name, rank, and precinct – as well as a phone number for the Civilian Complaint Review Board after every police encounter.

The City Council has also proposed making the summonses handed out for minor infractions a civil, rather than criminal, matter – a move the mayor has yet to support, backing Bratton who prefers to change police policies internally.

“There is much focus on the areas of criminal justice reform – as there should be,” says Ms. Aguilera, who says changes in city law is necessary to address these issues. “But not an equal or nearly enough focus on police reform, which is preventative and can address the disparities of who faces police interaction in the first place.”