August 29, 2016

Julian Guerrero looks at the state of efforts to win criminal justice reforms in New York--and asks what it will take to start seeing substantial change.

AS THE calls for police and criminal justice reform grow louder, the pace of actual reforms enacted seems to have slowed across the country--and stalled outright in one of the most well known liberal states of New York.

Having abolished the death penalty in 2007 and repealed the last of the destructive Rockefeller Drug Laws in 2009, people generally regard the New York state criminal justice system as the one of the more progressive models of criminal and civil justice.

But as a recent New York Times article pointed out, "few laws have been passed to decriminalize behaviors, shorten prison or jail sentences or restrict police actions" since Andrew Cuomo became governor in 2011.

After years of being the testing ground for the zero-tolerance policing of Broken Windows--pioneered and implemented by New York City Mayor Rudolph Giuliani in the 1990s and continued by billionaire "Independent" Republican Michael Bloomberg and liberal Democrat Bill de Blasio after him--New Yorkers have good reason to be sour on the police and the criminal justice system.

New York City Mayor Bill de Blasio (right) talks to then-Police Commissioner William Bratton

Rising crime rates and public safety do register high among the concerns of many residents, but enough New Yorkers, discontent with the law-and-order regimes of Giuliani and Bloomberg, prepared the ground for protests against the tough-on-crime agenda.

Throughout Giuliani's and Bloomberg's terms of office, the efforts of family members of people killed by the NYPD kept the discussion of police violence and the department's racist policies in the news, while the intense racial profiling of Black and Brown communities spurred a campaign to end the racist practice of stop-and-frisk.

New Yorkers voiced their support for changes in 2013, electing a number of progressive City Council members who promised to deliver criminal justice and police reform.

Then-Public Advocate Bill de Blasio's campaign for mayor that year was every bit as vocal about the need for police reform. His stated opposition to stop-and-frisk and other NYPD policies helped him win in a landslide, so voters were stunned when one of his first acts in office was to make "Broken Windows" pioneer, Bill Bratton, his police commissioner.

Since then, de Blasio has walked a line between supporting criminal justice and police reform while providing political muscle and cover for the forces of law and order.

AND SO, three years after New Yorkers threw out tough-on-crime politicians for self-styled progressive politicians promising change, the promised change has either been delayed, diluted to the point of symbolic gesture, or cast aside altogether.

The latest example of sabotage is the compromise that City Council Speaker Melissa Mark-Viverito reached with de Blasio and Bratton over the Right to Know Act, which contained several measures to require cops to identify themselves to whoever they stop, justify the reasons for the stop, and ask for consent before searching civilians, among others. The deal among top officials watered down many of the proposed reforms--and, worse, left it up to the NYPD to implement the policies on its own.

Likewise, the body camera program for the NYPD and promised changes to the barbaric treatment of detainees on Rikers Island are mired in delay and uneven implementation.

What reforms that have been passed focused on collecting data on the NYPD's interactions with the public and publicizing the results in an effort to be transparent with a public concerned with police corruption.

How has the NYPD responded to these reforms? By refusing to cooperate and being even less transparent.

The NYPD refused to release body camera footage to the press, is illegally withholding information on how much cash and assets the NYPD has seized from the public and refused to share the information of internal disciplinary actions and verdicts for abusive cops.

There are similar delays at the state level--legislation to raise the minimum age for criminal offenders from 16 to 18 years old stalled in Albany despite Cuomo supporting the measure.

SOME ARGUE that because New York started earlier with criminal justice reform, the pace only seems to have slowed down compared with states that have begun to enact reforms more recently. But this argument doesn't hold up given that some states have gone further than New York in certain changes to the system.

One example is the decriminalization of marijuana. Twenty-one states including California, Ohio and Mississippi have decriminalized marijuana, and Colorado, Washington, Oregon and Alaska went further and legalized recreational use. Contrast this with New York, where arrests for marijuana have gone up 30 percent compared to last year--after de Blasio directed the NYPD to be less punitive toward New Yorkers found with small amounts of weed.

Another example is reforming civil forfeiture of assets, a practice that gives the police the right to seize assets from a civilian without charging them with wrongdoing or without a guilty verdict. This controversial practice is basically a police shakedown of working people for their cash and assets, in which the property seized is sold and deposited in the state's or police department's coffers as people traverse a bureaucratic swamp to try to retrieve their possessions.

New Mexico and Nebraska have outright abolished civil forfeiture, while Washington, D.C., Florida, Minnesota, Maryland, Montana and Michigan have passed reforms requiring that the state either show clear evidence of wrongdoing or a guilty charge.

By contrast, New York will be sued for a third time in a class-action lawsuit against its civil forfeiture practice and is likely to lose the lawsuit for the third time as well. Civil forfeiture by police in 2014 amounted to more than $27 million, but New York legislators have so far refused to put forward new legislation to end the practice.

While police and their specialized task forces have expanded, New Yorkers have felt the effects of budget cuts to legal services--whether Republicans, Independents or Democrats have controlled City Hall. In a Congress known for political gridlock, the past few years has seen some bipartisan support for criminal justice reform. The buildup of the law-and-order agenda was an example of decades of bipartisan support for tough-on-crime policies.

Back in the 1990s, while Giuliani incited fear over public safety and decimated social services in the '90s, City Council Democrats fought timidly against some of the worst aspects of his budget cuts, but wouldn't challenge the overall effort to balance the budget deficit on the backs of working-class New Yorkers.

In negotiations over the 1994 city budget, for example, City Council Democrats quarreled with Giuliani's plan to cut $800 million from the budget, but then agreed to $700 million in cuts.

MANY REASONS exist for the uneven implementation of criminal justice reform and the often one-sided debate about the content of reforms and how far they should go in addressing the root causes of the problem.

In order to win fundamental changes to the criminal justice system, reform advocates must struggle against a powerful and widely supported coalition that make up the forces of law and order. New York, like most major cities, is no exception to the rule, and in fact, provides insight into why reforms have stalled at the federal level.

Spurred on by widespread protest in 2014, the Obama administration introduced the first wave of reforms with some bipartisan support. While this first wave largely concentrated on reducing mandatory minimum sentencing, restoring voting rights to people convicted with felonies, politicians from both parties have also shared concerns with the level of militarized police departments.

But the July killing of five cops in Dallas as well as the death of two NYPD cops in NYC in 2014 added fuel to a right-wing backlash against reform. The highly charged election season has only polarized much of the debate further as conservative Republicans have withdrawn their enthusiasm for criminal justice reform and emphasized law-and-order rhetoric in order to pander to the racist sections of U.S. society for support.

ALTHOUGH REPUBLICANS are seen as the biggest supporters of tough-on-crime policies, it was a Democrat, President Lyndon Johnson, who helped usher in decades of law-and-order politics. LBJ allocated billions toward the professionalization of the country's police departments after the riots and rebellions that gripped the U.S. in the 1960s and '70s demonstrated the incompetence of local police departments.

While LBJ pumped billions into police departments, Republican candidate Barry Goldwater provided the rhetoric of tough on crime and law and order. Republicans and Democrats alike depended on whipping up fears about high crime rates and concern for public safety to secure their influence during a period of social unrest.

Forty years later, Democratic and Republican politicians have built up a criminal justice apparatus that employs more than a million people in some 18,000 law enforcement agencies and departments across the country. Alongside these law enforcement agencies sprang up police and prison guard unions that have been powerful enough to stop or tame liberal politicians who run on reforming police and criminal justice policies.

As a result of the professionalization of the police, a network of "professional police" leaders trained in social scientific theory and police management arose between politicians and the law enforcement workers. Because of its position between politicians and law enforcement themselves, this "professional police sector" has an outsized influence over what reforms are put forward.

An article in the Marshall Project detailed the size and strength of this network which:

has a supportive infrastructure of lobbyists, consulting firms and think tanks that provide research, proselytize for the latest strategies, and help place their protégés in key policing jobs. It is bound together by two influential national bodies. One is the Major City Chiefs Association, which is open only to the heads of departments in the 67 largest cities or counties in the country, less than half of 1 percent of law enforcement leaders. The other is the Police Executive Research Forum (PERF), a Washington-based research organization that maps out policy proposals, organizes brain-storming sessions with commanders and has a consulting arm that helps cities recruit police chiefs and advises on reform plans.

Two of PERF's most prominent leaders, Chuck Ramsey and Bill Bratton, have helped shape the content of reforms as well as their implementation. President Obama appointed Ramsey as co-chair to the Task Force on 21st Century Policing while Bratton has been in charge of the country's largest police force.

In fact, the compromises made by New York City political leaders in allowing the NYPD to implement reforms themselves rather than through the mandate of legislation falls in line with the recommendations put forward by Obama's task force.

Just as Bratton has mediated between de Blasio and the Police Benevolent Association, a layer of professional police mediates between the police unions and the political class around the country.

With an angry public demanding that politicians deliver criminal justice reforms, many of them find themselves going up against intransigent police unions. The role of this professional police sector has been to shape reforms in order to placate the public's demands while doing little to change the composition and scope of law enforcement agencies around the country.

This is why reform has been able to made some progress around the country around issues of prison conditions, voting rights and decriminalization of drugs--but it has been stopped in its tracks when it comes to police reform of any kind.

THE POLITICAL polarization in U.S. society combined with the back and forth between the left and right over racism and police brutality will continue to make the process of reform uneven.

As the ongoing murder of unarmed Black and Brown people at the hands of the police continues to mobilize thousands of people and forces the discussion of racism, poverty and criminal justice reform into the mainstream, tough-on-crime politicians, backed by various bodies associated with law enforcement, are pushing back against changes to the status quo.

Democratic politicians beholden to the business community will only go so far in reforming the system. A society that prioritizes the profit-making of a few over the majority's social needs depends on laws to keep them in power and a criminal justice system and police force to uphold it.

With the New York economic establishment predicting an economic downturn in the near future and a likely rise in social protest, business leaders will be wary of politicians whose reforms hamper the NYPD's ability to crack down on social mobilizations that disrupt business as usual like Occupy Wall Street and Black Lives Matter have.

What we're seeing in New York City isn't simply the stalling of criminal justice reform but perhaps the limits of the Democratic Party's willingness to take up reforms that fundamentally changes a criminal justice system that the business community depends on for continuing their dominance over the social and political lives of Americans.

Without a stronger movement to overcome the forces who put up obstacles to reform of the criminal justice system and police policy, the push for change may not go further than what has been accomplished in New York.