Don’t Give Up on Baltimore: Part One of a Two-Part Series of Columns

Posted in: Criminal Law

After Baltimore, does anyone still think we can reform the criminal justice system without talking about race? I have written before about the determination by many of the most prominent actors in criminal justice reform to avoid any mention of race. They have the best of intentions. Race is inordinately divisive, and besides, they think we don’t need to talk about race if the goal is to release non-violent drug offenders from prison.

But their silence is nonetheless ill-rewarded, since our ideas about crime, and therefore of criminal justice, are hopelessly intertwined with our preconceptions and myths about race. To talk of one but not the other is like talking about jumping out a window without confronting the prospect of landing.

After Baltimore, does anyone still think criminal justice reform can expend all its energy on the backend of the system (sentencing, corrections, and collateral consequences) without tackling the front end (policing and prosecution)? That was another column. In the United States, the importance of a problem and the attention it receives are often inversely related, and when it comes to criminal justice, it’s a lot easier to chat about eliminating the barriers to a person’s re-entry into society than it is to suggest they never should’ve been taken away.

So let’s begin a conversation about race and policing, and see whether it’s possible to talk about both without hyperbole or mudslinging. This is Part I.

* * *

Events in Baltimore have exposed two truths about criminal justice in the 21st century. To begin with, when a community is simultaneously under-policed and over-policed, no one will be happy. On all sides, the persistent misallocation of police resources will produce a deeply entrenched, mutual mistrust and a barely concealed rage. Moreover, the effects of this misallocation will linger in the mind and memory of all concerned long after the offensive practices end.

To understand how this came about, it is important to grasp a few simple facts. First, the great majority of the violent crime in any community is committed by a vanishingly small fraction of the total population. Most violent offenders are young men between the ages of 16-24. But even within this segment of the community, violence is rare and peacefulness is the norm. One of the best discussions of this reality appears in Don’t Shoot, the recent book by John Jay College criminologist, David Kennedy, which I recommend highly.

Second, young black men commit a disproportionate number of the most violent crimes nationwide. By far, their victims are most likely other blacks, and mostly other young black men. Though the violent crime rate has fallen precipitously nationwide, the disproportionate role of young black men in violent crime has been true for many years. Here, for instance, is a report by the Bureau of Justice Statistics that summarizes the homicide data for the past several years.

Third, in most neighborhoods, nearly everyone understands facts one and two perfectly well. They know that most people are just trying to make a living and create a safe and comfortable home for themselves and their children. They want what everyone wants: good schools, good services, a nice park down the street, a few decent shops nearby.

Add to these few observations one more. Though violence is confined to a small segment of the population, its effects are not. They cascade, leading to a tumble of destructive, self-reinforcing loops. When violence enters a neighborhood, people stop doing the big and little things that make places safe and attractive, like looking in on their neighbors, taking care of their lawns and apartments, cleaning up the trash in the streets, etc.

And as neighborhoods decline, people have even less incentive to try to arrest the slide, so they give up and move out or retreat indoors, leaving behind a neighborhood even less equipped to prevent further decline. Trash in the street gives way to graffiti on the walls, graffiti to prostitution, prostitution to gambling. In this way, disorder is believed to be the harbinger of more serious crime, since it leads to reduced levels of informal social control, which in turn allows more serious crime to move in.

That, at least, is the theory behind “broken-windows” policing. As an enforcement strategy, law enforcement was admonished to sweat the small stuff—gambling, prostitution, or gang members crowding the corners, for instance—in order to disrupt the cycle of neighborhood withdrawal and abandonment. The idea was that promoting informal social control would help neighborhoods retake their communities. Some people swear by broken-windows policing and credit it with the precipitous drop in crime in New York and elsewhere. Others are more skeptical, and point out that crime fell just as fast and just as much in other major cities that never adopted this approach. The evidence is mixed.

But some jurisdictions took broken-windows a step farther, adopting “zero tolerance.” If broken windows meant sweating the small stuff, zero tolerance meant sweating everything: jaywalking, loitering, loud music, failing to signal a turn, “furtive” movements in a “high crime” area, etc. And here’s the rub: If law enforcement set out to poison its relationship with the community, it could not do better than zero tolerance. Because everyone commits these violations (who comes to a full stop at a stop sign?), and because nearly anything can qualify as a “furtive movement,” zero tolerance gives the police a license to stop almost anyone.

Nothing destroys trust faster than treating everyone in a neighborhood as a suspect, especially since the community understands full well that the crime that matters—violent crime—is committed by very few people. But pies can only be sliced into so many pieces, and if the police devote their resources to the harmless many, they will devote proportionally less to the violent few. Hence the irony: communities subjected to zero-tolerance are simultaneously over-policed and under-policed.

Baltimore adopted zero tolerance with a vengeance. From 1999-2007, under the leadership of former Baltimore Mayor (and later Maryland Governor and now presidential candidate) Martin O’Malley, Baltimore police stopped practically anything that moved. In 2005 alone, they made over 100,000 arrests, or roughly one in six city residents. And these arrests were typically accompanied by a protective frisk or search incident to arrest: pockets emptied and belongings strewn on the street, identification demanded and scrutinized, name run through databases for outstanding violations, no matter how minor. Mutual suspicion and animosity pervaded the entire encounter.

The majority of these interactions did not produce evidence of criminal activity, except perhaps the “crime” that justified the original stop. And so the person walked away humiliated in his own community, furious at the police, and socked with a summons for jaywalking when he knew full well that none of this would’ve happened in a different (white) neighborhood.

In the aftermath of Freddie Gray’s killing and the Baltimore unrest, O’Malley has strongly defended zero tolerance, saying it sharply reduced violent crime in the city and was the right policy at the right time. There’s no question that violent crime has fallen in Baltimore, as it has almost everywhere, including places that never adopted this approach. Whether the decline can be attributed to zero tolerance thus remains unproven.

But no one seems to doubt that zero tolerance had at least one unintended and unwelcome result: It intensified the atmosphere of hostility and mistrust between law enforcement and the community. In surveys conducted by the Baltimore Police Department in 2012, residents were asked whether they were satisfied with the police in five categories: police presence, responsiveness, approachability, professionalism, and preventing crime. In only one category—police presence—did law enforcement manage an approval rating above 50 percent, and then only by a single point.

Another survey of community leaders in 2013 was even more dispiriting. Substantially fewer than half thought the Baltimore police applied the law fairly, made fair and impartial decisions, understood and identified with the community, considered the views of those with whom they interacted, or applied the law regardless of race. Barely more than half thought they treated people with dignity and respect.

And the problem goes both ways. A 2013 survey of Baltimore police officers revealed an extraordinarily high level of frustration. Fewer than one in five officers thought their efforts were supported by the community, only one in seven thought discipline in the department was fair, consistent, and effective, and, astonishingly, fewer than one in ten thought morale in the department was good.

Meanwhile, add one more terrible stat: According to a March 2015 study by the Maryland chapter of the ACLU, 109 people died in police encounters in Maryland between 2010 and 2014; more than 40 percent were in Baltimore City and County. Statewide, the overwhelming majority of people who died were black. Over 40 percent were unarmed. The number of unarmed black men who died in police custody was greater than the total number of all whites, armed or not.

Nothing excuses violence, but a lot of things explain it, and Baltimore isn’t that hard to understand. And given this history, we have every reason to shrug our shoulders and walk away. But the title of this column reveals my view: DON’T GIVE UP ON BALTIMORE. Reformers are at the helm. I believe they genuinely want to repair the sundered relations with the community and undo the damage caused by the mischief of too much and too little policing. Their efforts will be the subject of Part II.

Posted in: Criminal Law

Tags: Legal