The Numbers Don’t Lie. The Police Do.

Jan. 4, 2016 (Mimesis Law) — Last year, we were inundated with headlines that warned of a slip back into the old days of criminals running our city like they did in the old days. The New York Post, which should only be used as a last resort if no other kindling is available, used one rather violent weekend in August of 2015 to talk of rising crime by willfully using a small temporal sample to warn us that the sky was falling.

Then there was the recent tiff between two old white men named Bratton and Kelly, who argued over crime statistics like, well, two old white men.

Police Commissioner William J. Bratton and his predecessor, Raymond W. Kelly, opened a war of words on Tuesday, engaging in a raw and apparently spontaneous dispute over the veracity of the New York Police Department’s official tally of shootings and murders. Mr. Bratton challenged Mr. Kelly to substantiate his claim last week that the department was manipulating the statistics to make it appear that New York is safer than it actually is. “Shame on him,” Mr. Bratton said at an unrelated news conference. “Let him back up that accusation,” he added, noting that Mr. Kelly had not provided details on why he believed the department was altering the statistics. “If you’re going to make it, stand up, be a big man, and explain what you’re talking about,” Mr. Bratton said.

Pot. Kettle. I could have sworn that you two had met.

It was not until the adults in the room, like Radley Balko and the Brennan Center for Justice, told us at the close of last year that things were not nearly as dire as police spokespeople (including an earlier, more fearmongery version of Bratton) had warned. In fact, by comparison, crime rates continued to decrease for much of the country, including New York City.

Then, on December 28, the Editorial Board of the New York Times wrote about a recent report on New York City crime statistics by John Jay College of Criminal Justice. As someone who likes the comfort of numbers and statistics as well as the philosophical uncertainty of criminal justice, I dove in.

And then I jumped back out. There was one section of the John Jay report that sounded simply too good to be true.

The biggest drop was in street stops, which had skyrocketed to more than 685,000 in 2011 from 160,000 in 2003. Some officers admitted they felt constant pressure to meet arbitrary productivity quotas, but the effect was to disproportionately target young African-American men, most of whom were doing nothing wrong. By 2014, the number of stops was under 46,000 — a 93 percent decline in only three years, with stops going down most sharply in those poorer and minority neighborhoods where they grew the fastest over the previous decade.

I recognize that I, as a thirty-something white male, am not, nor have I ever really been, a classic mark for the NYPD and their stop and frisk program. But in my line of work as a criminal defense attorney (and Brooklyn public defender from 2007 – 2014), I definitely have had a great deal of contact with those communities that were targeted. The declaration that from 2011 to 2014, “street stops” by the NYPD went from almost 700,000 down to 46,000 is a bit tough to swallow. Don’t get me wrong, I wish this were true. But quite honestly, I feel like I would have noticed long before the New York Times brought it to my attention.

Where did these numbers come from?

Data Sources: Division of Criminal Justice Services for Felony and Misdemeanor Arrests, New York City Police Department for Stops, and Office of Court Administration for Criminal Summonses.

Is it possible that the numbers provided by the NYPD to John Jay College were accurate? Technically, yes. But a look deeper into the actual data shows that it is much more likely (almost certain) that the NYPD’s reported rates of stop and frisk over the last ten or so years have had little connection to reality.

Although Bratton and Mayor DiBlasio have used these stop and frisk numbers to claim victory over the illegal and oppressive practices of their predecessors, there is a glaring problem with their argument. The precipitous drop in stop and frisk actually occurred under former NYPD Commissioner Kelly and Mayor Bloomberg.

Before de Blasio took office in 2014, police stops had already decreased 94 percent to 12,497 in the last three months of former mayor Michael Bloomberg’s administration, compared to their peak in the first three months of 2012, when there were 203,500 stops.

Does it make any sense that Ray Kelly, the outspoken champion of stop and frisk, the man who warned that getting rid of stop and frisk would have apocalyptic consequences for New York, would be the same man responsible for freeing New York City from the grips of illegal searches and seizures? Or is it possible that these numbers might be somewhat less than accurate?

This apparent sea change makes even less sense if you look at when the dramatic decrease in stop and frisk is supposed to have occurred. Remember that Kelly and the NYPD fought tooth and nail in federal court to keep their stop and frisk program alive. The police eventually lost their battle to the clear rule of constitutional law, but Judge Shira Sheindlin did not issue her injunction until August of 2013. If the stop and frisk numbers are accurate, then Kelly and the NYPD slashed stop and frisk from a high of 203,500 in the first quarter of 2012, down to 99,788 in the first quarter of 2013, all the way down to a paltry 21, 187 in the 3rd quarter of 2013, well before Judge Sheindlin told them to stop.

To believe these numbers, you must also believe that Ray Kelly, who went to all the trouble of fighting like hell to keep the program alive, would have, of his own volition, virtually dismantled stop and frisk before a judge ruled against him? Possible? Technically. Unlikely? Very.

Another reason to doubt the veracity of these crazy stop and frisk numbers is their seeming ability to dramatically rise and fall with no effect on the other, much less fungible data released by the NYPD, namely, arrest numbers. The NYPD counts “stop” data via “Unified Form 250” which should be filled out any time an officer has a “street encounter” with a civilian that involves stop, search or arrest. So, what happens if a cop stops someone and doesn’t fill out one of these forms? Nothing. Nothing at all.

Alternately, for arrests, there is almost always coordination with the District Attorney’s Office and the court system. Arrest numbers are much easier to find and much easier to verify as they are not within the exclusive control of the NYPD. In fact, if you look at the John Jay report, they did not get their arrest data from the NYPD, they got it from the courts.

What we know is that under Mayor Bloomberg, the NYPD was not only allowed but encouraged to stop and frisk hundreds of thousands of New Yorkers each year. While illegal, this certainly led to untold numbers of arrests (and the disruption or ruination of countless lives). The removal of over 600,000 of these stops should have seen a dramatic reduction in arrests as well. That has not happened. Arrest numbers have decreased slightly, but not in the way that they would have had this massive tool actually been removed from the NYPD’s arsenal.

Finally, every time an officer is caught choking a suspect to death over cigarettes or tackling an innocent tennis star to the ground, the public is told that the problem is merely a lack of training. Apparently cops must be trained not to murder or maul.

So then where is the evidence and interdepartmental memos and classes that must have been used to reverse the NYPD’s titanic practice of illegal stop and frisk almost into oblivion? Certainly there would have had to have been massive training sessions where captains and sergeants gathered all their officers and told them that they must now follow the law and exactly what that means. The NYPD apparently has not been able to find those statistics or course materials.

Look, I would love it if stop and frisk were legally applied and not racially biased. But the numbers rolled out by the NYPD and the John Jay report absolutely fall apart under contextual examination.

And then there is the motive. The NYPD and the city get to announce that the scourge of stop and frisk is no more.

But there is something in these numbers for opponents of the NYPD as well. One of the organizations at the center of the legal fight to end the practice has bought the police message hook, line and sinker.

“It’s good news that Stop and Frisks are down,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “It’s important that we recognize that as Stop and Frisks have plummeted despite cries of impending doom, crime rates remain at near historic lows. That’s good news for New Yorkers on every account.”

Oh, would that it were. But since we know that stop and frisk led to thousands upon thousands of illegal arrests in its heyday, if the program had actually been gutted, common sense would dictate that arrest rates would plummet as well. Since the second has not happened, shouldn’t we question whether the first ever did?

Stop and frisk should have never been a debate. It was a police tactic of search that was based upon the theory that if you search everyone, then you will find the guns and drugs before they do damage. The problem is, this is America and thankfully that is not the kind of society our predecessors chose to establish. The program was counter to the law, so a judge said that it had to go. But has it?

One of Ray Kelly’s biggest mistakes was proudly admitting to what his officers were actually doing. Once stop and frisk became controversial, the NYPD just stopped reporting their encounters. Unfortunately, when Bratton took over, he changed very little about how the NYPD was operating. Apparently he and the NYPD have just gotten smart enough to treat stop and frisk like Fight Club.

And we all know the first rule of stop and frisk: You do not talk about stop and frisk.

Main image via Flicker/Michael Fleshman

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